Exhibit 4.1
EXECUTION COPY
M&I AUTO LOAN TRUST 2002-1
AMENDED AND RESTATED TRUST AGREEMENT
between
M&I DEALER AUTO SECURITIZATION, LLC
as the Depositor
THE BANK OF NEW YORK (DELAWARE)
as the Owner Trustee
and
M&I XXXXXXXX & XXXXXX BANK
as the Administrator
Dated as of October 10, 2002
2002-1 Trust Agreement
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ........................................................................ 1
Section 1.1 Capitalized Terms ............................................................. 1
Section 1.2 Other Interpretive Provisions ................................................. 1
ARTICLE II ORGANIZATION ....................................................................... 2
Section 2.1 Name .......................................................................... 2
Section 2.2 Office ........................................................................ 2
Section 2.3 Purposes and Powers ........................................................... 2
Section 2.4 Appointment of the Owner Trustee .............................................. 3
Section 2.5 Initial Capital Contribution of Owner Trust Estate ............................ 3
Section 2.6 Declaration of Trust .......................................................... 3
Section 2.7 Organizational Expenses; Liabilities of the Holders ........................... 3
Section 2.8 Title to the Trust Property ................................................... 3
Section 2.9 Situs of the Trust ............................................................ 3
Section 2.10 Representations and Warranties of the Depositor ............................... 4
Section 2.11 Federal Income Tax Allocations ................................................ 5
Section 2.12 Representations and Warranties of the Administrator ........................... 5
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS ............................................. 6
Section 3.1 Initial Ownership ............................................................. 6
Section 3.2 The Certificates .............................................................. 6
Section 3.3 Authentication of Certificates ................................................ 6
Section 3.4 Registration of Transfer and Exchange of Certificates ......................... 7
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates ............................. 8
Section 3.6 Persons Deemed Certificateholders ............................................. 8
Section 3.7 Access to List of Certificateholders' Names and Addresses ..................... 8
Section 3.8 Maintenance of Office or Agency ............................................... 9
Section 3.9 Appointment of Certificate Paying Agent ....................................... 9
Section 3.10 Form of the Certificates ...................................................... 9
Section 3.11 Transfer Restrictions .........................................................10
Section 3.12 Legending of Certificates .....................................................12
ARTICLE IV ACTIONS BY OWNER TRUSTEE ...........................................................13
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TABLE OF CONTENTS
(continued)
Page
Section 4.1 Prior Notice to Owners with Respect to Certain Matters ........................ 13
Section 4.2 Action by Certificateholders with Respect to Certain Matters .................. 13
Section 4.3 Action by Certificateholders with Respect to Bankruptcy ....................... 14
Section 4.4 Restrictions on Certificateholders' Power ..................................... 14
Section 4.5 Certificateholder Control ..................................................... 14
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES ......................................... 14
Section 5.1 Establishment of Certificate Distribution Account ............................. 14
Section 5.2 Application of Funds in Certificate Distribution Account ...................... 14
Section 5.3 Method of Payment ............................................................. 15
Section 5.4 No Segregation of Monies; No Interest ......................................... 15
Section 5.5 Accounting and Reports to the Noteholders, Certificateholders,
the Internal Revenue Service and Others ....................................... 15
Section 5.6 Signature on Returns; Tax Matters Partner ..................................... 16
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE .............................................. 16
Section 6.1 General Authority ............................................................. 16
Section 6.2 General Duties ................................................................ 16
Section 6.3 Action upon Instruction ....................................................... 17
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions ............ 17
Section 6.5 No Action Except under Specified Documents or Instructions .................... 18
Section 6.6 Restrictions .................................................................. 18
ARTICLE VII CONCERNING OWNER TRUSTEE ........................................................... 18
Section 7.1 Acceptance of Trusts and Duties ............................................... 18
Section 7.2 Furnishing of Documents ....................................................... 20
Section 7.3 Representations and Warranties ................................................ 20
Section 7.4 Reliance; Advice of Counsel ................................................... 20
Section 7.5 Not Acting in Individual Capacity ............................................. 21
Section 7.6 The Owner Trustee Not Liable for Certificates or Receivables .................. 21
Section 7.7 The Owner Trustee May Own Certificates and Notes .............................. 22
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE ....................................................... 22
Section 8.1 The Owner Trustee's Fees and Expenses ......................................... 22
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TABLE OF CONTENTS
(continued)
Page
Section 8.2 Indemnification ............................................................... 22
Section 8.3 Payments to the Owner Trustee ................................................. 22
ARTICLE IX TERMINATION OF TRUST AGREEMENT ..................................................... 23
Section 9.1 Termination of Trust Agreement ................................................ 23
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES ............................. 24
Section 10.1 Eligibility Requirements for the Owner Trustee ................................ 24
Section 10.2 Resignation or Removal of the Owner Trustee ................................... 24
Section 10.3 Successor Owner Trustee ....................................................... 25
Section 10.4 Merger or Consolidation of the Owner Trustee .................................. 25
Section 10.5 Appointment of Co-Trustee or Separate Trustee ................................. 25
ARTICLE XI MISCELLANEOUS ...................................................................... 26
Section 11.1 Supplements and Amendments .................................................... 26
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders .................... 28
Section 11.3 Limitations on Rights of Others ............................................... 28
Section 11.4 Notices ....................................................................... 28
Section 11.5 Severability .................................................................. 29
Section 11.6 Separate Counterparts ......................................................... 29
Section 11.7 Successors and Assigns ........................................................ 29
Section 11.8 No Petition ................................................................... 29
Section 11.9 No Recourse ................................................................... 29
Section 11.10 Headings ...................................................................... 30
Section 11.11 GOVERNING LAW ................................................................. 30
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Transferor Certificate
Exhibit C Form of Transferee Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT is made as of October 10,
2002 (as from time to amended, supplemented or otherwise modified and in effect,
this "Agreement") between M&I DEALER AUTO SECURITIZATION, LLC, a Delaware
limited liability company, as the depositor (the "Depositor"), THE BANK OF NEW
YORK (DELAWARE), a Delaware banking corporation, as the owner trustee (the
"Owner Trustee") and M&I Xxxxxxxx & Xxxxxx Bank, a Wisconsin banking corporation
as the administrator ("M&I Bank" or the "Administrator").
PRELIMINARY STATEMENTS
WHEREAS, the Depositor, the Owner Trustee and M&I Bank are parties to
that certain Trust Agreement dated as of September 19, 2002 (the "Original Trust
Agreement"); and
WHEREAS, the Depositor, the Owner Trustee and M&I Bank desire to amend
and restate the Original Trust Agreement in its entirety on the terms and
conditions provided for in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the Original Trust Agreement is amended and
restated to read in its entirety, and the parties hereto agree, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Unless otherwise indicated, capitalized
terms used in this Agreement are defined in Appendix X to the Sale and Servicing
Agreement between the Owner Trustee, the Depositor, M&I Bank and Bank One,
National Association (the "Indenture Trustee"), dated as of October 10, 2002, as
the same may be amended and supplemented from time to time.
Section 1.2 Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The trust created hereby shall be known as "M&I AUTO
LOAN TRUST 2002-1".
Section 2.2 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders and the
Administrator.
Section 2.3 Purposes and Powers. The purpose of the Trust is, and the
Owner Trustee shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and
principal of the Notes and distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from the Depositor pursuant to the terms
thereof, to make deposits to and withdrawals from the Trust Accounts
and the Reserve Account and to pay the organizational, start-up and
transactional expenses of the Trust;
(c) to establish and maintain the Certificate Distribution
Account;
(d) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to the Trust pursuant to, the Indenture;
(e) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(f) 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
(g) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities;
provided, however, that neither the Owner Trustee nor officers of the Owner
Trustee on behalf of the Trust shall
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have or exercise any powers not permitted of "Qualifying SPEs" (within the
meaning of the Statement of Financial Accounting Standard No. 140 ("FAS 140"))
under FAS 140 or any successor accounting standard thereto. The Owner Trustee
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 other
Basic Documents.
Section 2.4 Appointment of the Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.5 Initial Capital Contribution of Owner Trust Estate. The
Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of the
date of the Original Trust Agreement, of the sum of $1, which constitutes part
of the Owner Trust Estate.
Section 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a common law trust under the common
laws of the state of Delaware. It is the intention of the parties hereto that,
solely for income and franchise tax purposes, until the Certificates are held by
other than the Depositor, the Trust will be disregarded as an entity separate
from the Depositor and the Notes will be characterized as debt. At such time
that the Certificates are held by more than one Person, it is the intention of
the parties hereto that, solely for income and franchise tax purposes, the Trust
shall be treated as a partnership, with the assets of the partnership being the
Receivables and other assets held by the Trust, the partners of the partnership
being the Certificateholders, and the Notes being debt of the partnership. The
Depositor and the Certificateholders by acceptance of a Certificate agree to
such treatment and agree to take no action inconsistent with such treatment. The
parties agree that, unless otherwise required by appropriate tax authorities,
until the Certificates are held by more than one Person the Trust will not file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as an entity separate from its
owner.
Section 2.7 Organizational Expenses; Liabilities of the Holders.
(a) The Administrator shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses
paid by the Owner Trustee.
(b) No Certificateholder shall have any personal liability for
any liability or obligation of the Trust.
Section 2.8 Title to the Trust Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
Section 2.9 Situs of the Trust. The Trust will be located and
administered in the State of Delaware or New York. All bank accounts maintained
by the Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of New York. Payments will be
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received by the Owner Trustee only in Delaware or New York, and payments will be
made by the Owner Trustee only from Delaware or New York. The only office of the
Trust will be at the Corporate Trust Office.
Section 2.10 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee and the
Administrator that:
(a) The Depositor is duly organized and validly existing as a
Delaware limited liability company with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications, licenses and approvals, except where the
failure to have such qualifications, licenses and approvals would not
have a material adverse effect on the Depositor.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms and the Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust, and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all
necessary action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Depositor and is enforceable
against the Depositor in accordance with its terms.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the limited liability company agreement, of the Depositor, or any
material indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or,
to the best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(e) There are no proceedings or investigations pending or, to
the Depositor's best knowledge, threatened before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting
the invalidity of this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Indenture or any
of the other Basic Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the
Depositor or its obligations under, or the validity or enforceability
of, this Agreement or
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(iv) which might adversely affect the federal income tax attributes, or
applicable state tax franchise or income tax attributes, of the Notes
or the Certificates.
Section 2.11 Federal Income Tax Allocations. If Certificates are held
by more than one Person,
(a) amounts paid to Certificateholders pursuant to Section 5.2
(a) shall be treated as "guaranteed payments" within the meaning of
Section 707(c) of the Code; and
(b) to the extent that the characterization provided for in
paragraph (a) of this Section 2.11 is not respected, gross ordinary
income of the Trust for such month as determined for federal income tax
purposes (and each item of income, gain, credit, loss or deduction
entering into the computation thereof), to the extent thereof, shall be
allocated among the Certificateholders as of the first Record Date
following the end of such month, in proportion to their Certificate
Percentage Interests in the Trust on such date.
Net losses of the Trust, if any, for any month as determined for federal income
tax purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated to the Depositor to the extent
the Depositor is reasonably expected as determined by the Servicer to bear the
economic burden of such net losses, then net losses shall be allocated among the
Certificateholders as of the first Record Date following the end of such month
in proportion to their Certificate Percentage Interests on such Record Date. The
Depositor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Depositor, the Certificateholders, or
as otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by the Depositor, the
application of this Section 2.11 shall be disregarded.
Section 2.12 Representations and Warranties of the Administrator. The
Administrator hereby represents and warrants to the Owner Trustee and the
Depositor that:
(a) The Administrator is duly organized and validly existing as
a Wisconsin banking corporation with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The Administrator is duly qualified to do business and 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 shall require such qualifications, licenses and
approvals, except where the failure to have such qualifications,
licenses and approvals would not have a material adverse effect on the
Administrator.
(c) The Administrator has the power and authority to execute
and deliver this Agreement and to carry out its terms and the
Administrator has duly authorized the execution, delivery and
performance of this Agreement and this Agreement is enforceable against
the Administrator in accordance with its terms.
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(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the organizational documents, of the Administrator, or any material
indenture, agreement or other instrument to which the Administrator is
a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best
of the Administrator's knowledge, any order, rule or regulation
applicable to the Administrator of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Administrator or its
properties.
(e) There are no proceedings or investigations pending or, to
the Administrator's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Administrator or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other Basic
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Administrator or
its obligations under, or the validity or enforceability of, this
Agreement or (iv) which might adversely affect the federal income tax
attributes, or applicable state tax franchise or income tax attributes,
of the Notes or the Certificates.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.2 The Certificates. The Certificates shall be executed by
manual or facsimile signature of an authorized officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Owner Trustee, shall be validly issued and entitled to the benefit
of this Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. If a transfer of the Certificates is permitted
pursuant to Section 3.11, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
Section 3.3 Authentication of Certificates. Concurrently with the
initial sale of the Trust Property to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate Certificate Percentage Interest equal to 100% to be
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executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president, its chief financial officer, its chief accounting officer, any vice
president, its secretary, any assistant secretary, its treasurer or any
assistant treasurer, without further corporate action by the Depositor. No
Certificate shall entitle its Holder to any benefit under this Agreement, or be
valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit A,
executed by the Owner Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. Upon their issuance, the Certificates shall represent
fully-paid and, except as otherwise expressly provided in this Agreement,
non-assessable beneficial interests in the assets of the Trust.
Section 3.4 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Bank of New York
(Delaware) shall be the initial Certificate Registrar (the "Certificate
Registrar"). No certificate may be sold, transferred, assigned, participated,
pledged, or otherwise disposed of to any Person except in accordance with the
provisions of Section 3.11 and any attempted transfer in violation of Section
3.11 shall be null and void.
(b) Upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.8, and upon
compliance with the provisions of this Agreement relating to such transfer, the
Owner Trustee shall execute, authenticate and deliver in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like class and Certificate Percentage Interest dated the date
of authentication by the Owner Trustee or any authenticating agent. At the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same class in authorized denominations of a like aggregate
amount upon surrender of the Certificates to be exchanged at the office or
agency maintained pursuant to Section 3.8.
(c) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Certificateholder or his attorney
duly authorized in writing, with such signature guaranteed by a member firm of
the New York Stock Exchange, a commercial bank or trust company or an "eligible
guarantor institution" with membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Certificate Registrar
in addition to, or substitution for, STAMP, all in accordance with the Exchange
Act. Each Certificate surrendered for registration of transfer or exchange shall
be canceled and subsequently disposed of by the Owner Trustee or the Certificate
Registrar in accordance with its customary practice.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment
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of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(e) The preceding provisions of this Section 3.4
notwithstanding, the Owner Trustee shall not make and the Certificate Registrar
need not register any transfer or exchange of Certificates for a period of
fifteen (15) days preceding any Payment Date for any payment with respect to the
Certificates.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Owner Trustee shall execute and shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like class, tenor and Certificate Percentage Interest. In
connection with the issuance of any new Certificate under this Section 3.5, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
3.5 shall constitute conclusive evidence of a beneficial interest in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 3.6 Persons Deemed Certificateholders. Every Person by virtue
of becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any agent of the Owner Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate shall be registered in the
Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.2 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
agent of the Owner Trustee or the Certificate Registrar shall be bound by any
notice to the contrary.
Section 3.7 Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Depositor, the Administrator or the Indenture Trustee, within 15 days after
receipt by the Owner Trustee of a request therefor from the Servicer, the
Depositor, the Administrator or the Indenture Trustee in writing, a list, in
such form as the Servicer, the Depositor, the Administrator or the Indenture
Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If Holders of Certificates
evidencing not less than 25% of the Certificate Percentage Interests, apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold the Depositor, the
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Administrator, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 3.8 Maintenance of Office or Agency. The Owner Trustee shall
maintain in the City of Wilmington, Delaware or New York, New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served (the "Certificate Register"). The Owner Trustee initially designates the
office of The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000
as its Corporate Trust Office, as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice to the
Administrator and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 3.9 Appointment of Certificate Paying Agent. Certificate Paying
Agent shall make distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.2 and shall report the amounts of
such distributions to the Owner Trustee; provided that this reporting shall not
be required where the Owner Trustee is serving as Certificate Paying Agent. Any
Certificate Paying Agent shall have the revocable power, upon direction from the
Administrator, with written copy provided to the Owner Trustee, to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove Certificate Paying Agent if the Owner Trustee determines in its sole
discretion that Certificate Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. Certificate Paying
Agent shall initially be the Owner Trustee. Certificate Paying Agent shall be
permitted to resign upon 30 days' written notice to the Owner Trustee and the
Servicer. In the event that the Owner Trustee shall no longer be Certificate
Paying Agent, the Owner Trustee shall appoint a successor to act as Certificate
Paying Agent (which shall be a bank or trust company). The Owner Trustee shall
cause such successor Certificate Paying Agent or any additional Certificate
Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner
Trustee an instrument in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent or additional
Certificate Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
Certificate Paying Agent shall return all unclaimed funds to the Owner Trustee
and upon removal of a Certificate Paying Agent such Certificate Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.1, 7.3, 7.4, 8.1 and 8.2 shall apply to the Owner
Trustee also in its role as Certificate Paying Agent, for so long as the Owner
Trustee shall act as Certificate Paying Agent and, to the extent applicable, to
any other Certificate Paying Agent appointed hereunder. Any reference in this
Agreement to Certificate Paying Agent shall include any co-Certificate Paying
Agent unless the context requires otherwise.
Section 3.10 Form of the Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing definitive Certificates and shall be registered in the
name of M&I Dealer Auto Securitization, LLC as the initial registered owner
thereof. The Owner Trustee shall execute and authenticate, or cause to be
9 2002-1 Trust Agreement
authenticated, the Definitive Certificates in accordance with the instructions
of the Depositor. Neither the Certificate Registrar nor the Owner Trustee shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Certificates, the Owner Trustee and each Certificate Paying Agent
shall recognize the Holders of the Certificates as Certificateholders. The
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Owner Trustee, as evidenced
by its execution thereof.
Section 3.11 Transfer Restrictions. (a) No Certificate may be resold,
assigned or transferred (including by pledge or hypothecation) unless such
resale, assignment or transfer is (i) pursuant to an effective registration
statement under the Securities Act and any applicable state securities or "Blue
Sky" laws, (ii) pursuant to Rule 144A promulgated under the Securities Act
("Rule 144A") or (iii) pursuant to another exemption from the registration
requirements of the Securities Act and subject to the receipt by the Owner
Trustee and the Administrator of (A) a certification by both the prospective
transferor and the prospective transferee of the facts surrounding such
transfer, which certification shall be in form and substance satisfactory to the
Owner Trustee and the Administrator and (B) an opinion of counsel (which will
not be at the expense of the Administrator or the Owner Trustee), satisfactory
to the Administrator and the Owner Trustee, to the effect that the transfer is
in compliance with the Securities Act, and, in each case, in compliance with any
applicable securities or "Blue Sky" laws of any state of the United States. In
addition, each transferee shall provide to the Owner Trustee its tax
identification number, address, nominee name (if applicable) and wire transfer
instructions. Prior to any resale, assignment or transfer of the Certificates
described in clause (ii) above, each prospective purchaser of the Certificates
shall have acknowledged, represented and agreed as follows:
(1) It is a "qualified institutional buyer" as defined in Rule
144A ("QIB") and is acquiring the Certificates for its own institutional
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are QIBs).
(2) It acknowledges that the Certificates have not been and will
not be registered under the Securities Act or the securities laws of any
jurisdiction.
(3) It is familiar with Rule 144A and is aware that the sale is
being made in reliance on Rule 144A and it is not acquiring the
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the meaning of
the Securities Act or a violation of the Securities Act, and that, if in
the future it decides to resell, assign, pledge or otherwise transfer any
Certificates, such Certificates may be resold, assigned, pledged or
transferred only (i) so long as such Certificate is eligible for resale
pursuant to Rule 144A, to a person whom it reasonably believes after due
inquiry is a QIB acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are QIBs)
to whom notice is given that the resale, pledge, assignment or transfer is
being made in reliance on Rule 144A, (ii) pursuant to an effective
registration statement under the Securities Act or (iii) in a sale, pledge
or other transfer made in a transaction otherwise exempt from the
registration requirements of the Securities Act, in which case (A) the
Owner Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner
10 2002-1 Trust Agreement
Trustee and the Administrator in writing the facts surrounding such
transfer, which certification shall be in form and substance satisfactory
to the Owner Trustee and the Administrator and (B) the Owner Trustee shall
require a written opinion of counsel (which will not be at the expense of
the Administrator or the Owner Trustee) satisfactory to the Administrator
and the Owner Trustee to the effect that such transfer will not violate the
Securities Act, in each case in accordance with any applicable securities
or "Blue Sky" laws of any state of the United States.
(4) It is aware that it (or any account for which it is
purchasing) may be required to bear the economic risk of an investment in
the Certificates for an indefinite period, and it (or such account) is able
to bear such risk for an indefinite period.
(5) It understands that the Certificates will bear legends
substantially as set forth in Section 3.12.
(6) If it is acquiring any Certificates for the account of one or
more qualified institutional buyers, it represents that it has sole
investment discretion with respect to each such account and that it has
full power to make the foregoing acknowledgments, representations and
agreements on behalf of each such account.
(7) It acknowledges that the Owner Trustee and the Depositor and
their Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
Each transferor of the Certificates shall be required to execute or to have
executed a representation letter substantially in the form of Exhibit B, and
each transferee shall be required to execute or to have executed a
representation letter substantially in the form of Exhibit C, or each may
deliver such other representations (or an opinion of counsel) as may be approved
by the Owner Trustee and the Administrator, to the effect that such transfer may
be made pursuant to an exemption from registration under the Securities Act and
any applicable state securities or "Blue Sky" laws.
In addition, such prospective purchaser shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Owner Trustee or the Administrator, to support the truth and accuracy of the
foregoing acknowledgments, representations and agreements, it being understood
that such additional information is not intended to create additional
restrictions on the transfer of the Certificates. Neither the Depositor, the
Administrator, the Trust nor the Owner Trustee shall be obligated to register
the Certificates under the Securities Act or any state securities or "Blue Sky"
laws.
In determining compliance with the transfer restrictions contained in this
Section 3.11, the Owner Trustee may rely upon a written opinion of counsel
(which may include in-house counsel of the Transferor), the cost of obtaining
which shall be an expense of the Holder of the Certificate to be transferred.
(b) No Certificate may be acquired or held (i) by any "employee
benefit plan" whether or not subject to ERISA or a "plan" described by Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or by any entity
deemed to hold the assets of any of the
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foregoing by reason of an employee benefit plan's or other plan's investment in
such entity (each, a "Benefit Plan"). Each Person who acquires any Certificate
or interest therein shall certify that the foregoing conditions are satisfied.
Section 3.12 Legending of Certificates. Each Certificate shall bear a
legend in substantially the following form, unless the Administrator determines
otherwise in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS,
PURSUANT TO AN EXEMPTION THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
IT AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY ACCOUNTS FOR WHICH IT IS
ACTING AS AGENT, THAT SUCH CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR
TRANSFERRED ONLY (A) SO LONG AS THE CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH TO A PERSON WHOM THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE
RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS
MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE
OWNER TRUSTEE SHALL REQUIRE (I) THAT BOTH THE PROSPECTIVE TRANSFEROR AND
THE PROSPECTIVE TRANSFEREE CERTIFY TO THE OWNER TRUSTEE AND THE
ADMINISTRATOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH
CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND (II) A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE
EXPENSE OF THE OWNER TRUSTEE OR THE ADMINISTRATOR) SATISFACTORY TO THE
OWNER TRUSTEE AND THE ADMINISTRATOR, TO THE EFFECT THAT SUCH TRANSFER WILL
NOT VIOLATE THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR JURISDICTION. ANY
ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING
RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE INITIAL
ACQUISITION OR THROUGH A TRANSFER) WITH
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PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" WHETHER OR NOT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY
"PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE ASSETS OF ANY OF THE
FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT PLAN").
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Owners with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders;
(c) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or
defect or to amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholders; or
(d) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note Registrar,
Certificate Paying Agent or Indenture Trustee or the Certificate Registrar
of its obligations under the Indenture or this Agreement, as applicable.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Certificate Paying Agent or the Certificate Registrar
within five Business Days thereof.
Section 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, to (a) except as expressly provided in the Transactions
Documents, remove the Servicer under the Sale and Servicing Agreement pursuant
to Section 8.1 thereof, (b) except as expressly provided in the Basic Documents,
sell the Receivables after the termination of the Indenture, (c) remove the
Administrator under the Administration Agreement pursuant to Section 9 thereof
or (d) appoint a successor Administrator pursuant to Section 9 of the
Administration Agreement. The Owner
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Trustee shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders.
Section 4.3 Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust until the Outstanding Amount of all the Notes
has been reduced to zero and without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Owner Trustee under this Agreement or any of the Basic Documents or would
be contrary to Section 2.3 nor shall the Owner Trustee be obligated to follow
any such direction, if given.
Section 4.5 Certificateholder Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Holders of Certificates evidencing not less than a majority of
the Certificate Percentage Interests. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Certificateholders of Certificates evidencing
not less than a majority of the Certificate Percentage 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. The Owner
Trustee, for the benefit of the Certificateholders, shall establish and maintain
in the name of the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders. Except as
otherwise provided herein, the Certificate Distribution Account shall be under
the sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders.
Section 5.2 Application of Funds in Certificate Distribution Account. (a)
On each Payment Date, the Owner Trustee will, or will cause the Certificate
Paying Agent to, based on the information contained in the Servicer's Report
delivered on the related Determination Date pursuant to Section 4.9 of the Sale
and Servicing Agreement, distribute to Certificateholders, as of the related
Record Date all amounts deposited in the Certificate Distribution Account
pursuant to the Sale and Servicing Agreement on such Payment Date based upon
each Certificateholder's Certificate Percentage Interest:
(b) In the event that any withholding tax is imposed on the Owner
Trustee's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2. The Owner Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of
any
14 2002-1 Trust Agreement
tax that is legally owed by the Owner Trustee (but such authorization shall
not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Owner Trustee 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-United States
Certificateholder), the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this clause (b). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
Section 5.3 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders on any Payment Date shall be made to
each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (a) such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, by check mailed to such Certificateholder at the address of
such Certificateholder appearing in the Certificate Register. Notwithstanding
the foregoing, the final distribution in respect of any Certificate will be
payable only upon presentation and surrender of such Certificate at the office
or agency maintained for that purpose by the Owner Trustee pursuant to Section
3.8.
Section 5.4 No Segregation of Monies; No Interest. Subject to Sections 5.1
and 5.2, monies received by the Owner Trustee or any Certificate Paying Agent
hereunder including all Certificate Account Property need not be segregated in
any manner except to the extent required by law or the Indenture or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and neither the Owner Trustee nor any Certificate Paying
Agent shall be liable for any interest thereon.
Section 5.5 Accounting and Reports to the Noteholders, Certificateholders,
the Internal Revenue Service and Others. Subject to Section 2.6, the
Administrator shall (a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis on the accrual method of accounting, (b) deliver
(or cause to be delivered) to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its federal
and state income tax returns, (c) prepare and file such tax returns relating to
the Trust (including a partnership information return, Form 1065, if
applicable), 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 a partnership for
federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.2(b) with respect to income
or distributions to Certificateholders. The Owner Trustee shall cooperate with
the Administrator in making all elections pursuant to this Section 5.5 as
directed in writing
15 2002-1 Trust Agreement
by the Administrator. The Trust shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect to the
Receivables and shall elect under Section 171 of the Code to amortize any bond
premium with respect to the Receivables. The Trust shall not make the election
provided under Section 754 of the Code.
Section 5.6 Signature on Returns; Tax Matters Partner. (a) Notwithstanding
the provisions of Section 5.5 and subject to Section 2.6, the Administrator
shall sign on behalf of the Trust the tax returns of the Trust, unless
applicable law requires the Owner Trustee to sign such documents, in which case
such documents shall be signed by the Owner Trustee at the written direction of
the Administrator.
(b) Subject to Section 2.6, the Administrator shall be the "tax
matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code
and applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1 General Authority. The Owner Trustee is authorized and directed
to execute and deliver the Basic Documents to which the Owner Trustee is named
as a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Owner Trustee is named as a
party and any amendment thereto, in each case, in such form as the Administrator
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof, and at the written direction of the Administrator, to direct the
Indenture Trustee to authenticate and deliver Class A-1 Notes in the aggregate
principal amount of $133,000,000, Class A-2 Notes in the aggregate principal
amount of $122,000,000, Class A-3 Notes in the aggregate principal amount of
$190,000,000, Class A-4 Notes in the aggregate principal amount of $68,187,500,
and Class B Notes in the aggregate principal amount of $11,812,500. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be obligated,
to take all actions required of the Owner Trustee pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to time to take
such action as the Servicer or the Administrator recommends or directs in
writing with respect to the Basic Documents, except to the extent that this
Agreement expressly requires the consent of Certificateholders for such action.
Section 6.2 General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer the
Trust in the interest of Certificateholders, subject to the Basic Documents and
in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee hereunder or under any Basic
Document, and the Owner Trustee shall not be liable for the default or failure
of the Administrator to carry out its obligations under the Administration
Agreement and shall have no duty to monitor the performance of the Administrator
or any other Person under the Administration Agreement or any other document.
16 2002-1 Trust Agreement
The Owner Trustee shall have no obligation to administer, service or collect the
Receivables or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Receivables.
Section 6.3 Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Basic Documents, the Certificateholders may, by written
instruction, direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined or been advised by counsel that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to law
and a copy of such opinion has been provided to the Servicer.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Basic Document or is unsure as to the application of any provision of
this Agreement or any Basic Document or any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to
a particular set of facts, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted or application of such provision, and to the extent the Owner
Trustee acts or refrains from acting in good faith in accordance with any
written instruction of the Certificateholders received, the Owner Trustee
shall not be liable on account of such action or inaction to any Person. If
the Owner Trustee receives two or more sets of conflicting instructions,
the Owner Trustee shall act on the instructions from the group of
Certificateholders holding the largest Certificate Percentage Interest. If
the Owner Trustee shall not have received appropriate instruction within
ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such
action or inaction.
Section 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or Lien granted to
it hereunder or to
17 2002-1 Trust Agreement
prepare or file any filing with the Commission (including any filings required
under the Xxxxxxxx-Xxxxx Act of 2002, subject to Section 3.3(h) herein) for the
Trust or to record this Agreement or any Basic Document. The Bank of New York
(Delaware) nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any Liens on any part
of the Trust Estate that result from actions by, or claims against, The Bank of
New York (Delaware) that are not related to the ownership or the administration
of the Trust Estate.
Section 6.5 No Action Except under Specified Documents or Instructions. The
Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with any part of the Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance
with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.3.
Section 6.6 Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would (i) affect the treatment of the Notes as indebtedness for federal income,
state and local income and franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or state income or franchise
tax purposes or (iii) cause the Trust or any portion thereof to be treated as an
association or publicly traded partnership taxable as a corporation for federal
income, state and local income or franchise tax purposes. The Certificateholders
shall not direct the Owner Trustee to take action that would violate the
provisions of this Section 6.6.
ARTICLE VII
CONCERNING OWNER TRUSTEE
Section 7.1 Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it constituting part of the
Owner Trust Estate upon the terms of the Basic Documents and this Agreement. The
Owner Trustee shall not be personally liable or accountable hereunder or under
any Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or gross negligence, (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 7.3 expressly made by The
Bank of New York (Delaware) in its individual capacity, (iii) for liabilities
arising from the failure of The Bank of New York (Delaware) to perform
obligations expressly undertaken by it in the last sentence of Section 6.4 or
(iv) for taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) The Owner Trustee shall not be personally liable for any error of
judgment made by a Responsible Officer of the Owner Trustee;
18 2002-1 Trust Agreement
(b) The Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Depositor, the Servicer, the Administrator or any
Certificateholder;
(c) No provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any personal
liability in the performance of any of its rights or powers hereunder or
under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) The Owner Trustee shall not be personally liable for or in respect
of the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or the Administrator or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Estate or
for or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any personal liability,
duty or obligation to any Noteholder or to any Certificateholder, other
than as expressly provided for herein and in the Basic Documents;
(f) The Owner Trustee shall not be personally liable for the default
or misconduct of the Indenture Trustee, the Servicer, the Custodian, or the
Administrator under any of the Basic Documents or otherwise and the Owner
Trustee shall have no duty or personal liability to perform obligations
under this Agreement or the Basic Documents that are required to be
performed by the Indenture Trustee under the Indenture, the Servicer, the
Custodian under the Sale and Servicing Agreement or the Administrator under
the Administration Agreement; and
(g) The Owner Trustee shall be under no duty to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation
to this Agreement or any Basic Document, at the request, order or written
direction of any of the Certificateholders, unless such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement or in any Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence, bad faith or willful
misconduct in the performance of any such act.
(h) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to execute, deliver or certify on
behalf of the Trust or any other Person any filings, certificates,
affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of
2002.
19 2002-1 Trust Agreement
(i) In no event shall the Owner Trustee be personally liable (i) for
special, consequential or punitive damages, (ii) for the acts or omissions
of its nominees, correspondents, clearing agencies or securities
depositories (except for any acts or omissions of The Bank of New York, as
agent of the Owner Trustee), (iii) for the acts or omissions of brokers or
dealers, and (iv) for any losses due to forces beyond the control of the
Owner Trustee, including without limitation strikes, work stoppages, acts
of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God and interruptions. The Owner Trustee shall have
no responsibility for the accuracy of any information provided to the
Certificateholders or any other person that has been obtained from, or
provided to the Owner Trustee by, any other entity.
Section 7.2 Furnishing of Documents. The Owner Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 7.3 Representations and Warranties. The Bank of New York (Delaware)
hereby represents and warrants to the Depositor and the Administrator, for the
benefit of the Certificateholders, that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors of
banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws.
Section 7.4 Reliance; Advice of Counsel. (a) The Owner Trustee shall incur
no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request,
20 2002-1 Trust Agreement
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer, secretary or other authorized officers
of the relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or
the Basic Documents, the Owner Trustee (i) may act directly or through its
agents including, but not limited to, The Bank of New York, which will
perform certain duties and obligations of the Owner Trustee under this
Agreement, or attorneys pursuant to agreements entered into with any of
them, but the Owner Trustee shall not be personally liable for the conduct
or misconduct of such agents, custodians, nominees (including persons
acting under a power of attorney) or attorneys selected with reasonable
care and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected with reasonable
care and employed by it at the expense of the Trust. The Owner Trustee
shall not be personally liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons.
Section 7.5 Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, The Bank of New York
(Delaware) acts solely as the Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.6 The Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor or the Administrator, as the case may be, and
the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no personal representations as to the validity or
sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of the Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. The Owner
Trustee shall at no time have any responsibility or personal liability for or
with respect to the legality, validity and enforceability of any Receivable, or
the perfection and priority of any security interest created by any Receivable
in any Financed Vehicle or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders under
this Agreement or the Noteholders under the Indenture, including: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening
21 2002-1 Trust Agreement
assignment; the completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Depositor, the Administrator or the
Servicer with any warranty or representation made under any Basic Document or in
any related document or the accuracy of any such warranty or representation or
any action of Indenture Trustee, the Administrator, or the Servicer or any
subservicer taken in the name of the Owner Trustee.
Section 7.7 The Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, Indenture Trustee, the
Servicer and the Administrator in banking transactions with the same rights as
it would have if it were not the Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1 The Owner Trustee's Fees and Expenses. The Administrator shall
pay to The Bank of New York (Delaware) pursuant to the Administration Agreement
from time to time reasonable compensation for all services rendered by The Bank
of New York (Delaware) under this Agreement (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Administrator, pursuant to the Administration Agreement,
shall reimburse The Bank of New York (Delaware) upon its request for all
reasonable expenses, disbursements and advances incurred or made by The Bank of
New York (Delaware) in accordance with any provision of this Agreement or any
Basic Document (including the reasonable compensation, expenses and
disbursements of such agents and counsel as The Bank of New York (Delaware) may
employ in connection with the exercise and performance of its rights and its
duties hereunder), except any such expense as may be attributable to its willful
misconduct, gross negligence or bad faith.
Section 8.2 Indemnification. To the fullest extent permitted by law, the
Administrator shall indemnify The Bank of New York (Delaware) in its individual
capacity and as trustee and its successors, assigns, directors, officers,
employees and agents (the "Indemnified Parties") from and against, any and all
loss, liability and expense, tax, penalty or claim (including reasonable legal
fees and expenses) of any kind and nature whatsoever which may at any time be
imposed on, incurred by, or asserted against The Bank of New York (Delaware) in
its individual capacity and as trustee or any Indemnified Party in any way
relating to or arising out of this Agreement, the Basic Documents, the Owner
Trust Estate, the administration of the Owner Trust Estate or the action or
inaction of The Bank of New York (Delaware) hereunder, provided, however, that
the Administrator shall not be liable for or required to indemnify The Bank of
New York (Delaware) from and against any of the foregoing expenses arising or
resulting from any of the matters described in the third sentence of Section
7.1. This Section 8.2 shall survive the termination of this Agreement and the
Trust and the resignation or removal of the Owner Trustee.
Section 8.3 Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII and the Administration Agreement shall be
deemed not to be a part of the Owner Trust Estate immediately after such
payment.
22 2002-1 Trust Agreement
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.1 Termination of Trust Agreement. (a) This Agreement (other than
Article VIII) and the Trust shall terminate and be of no further force or
effect, upon the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and Article V; provided,
however, that in no event shall the Trust created by this Agreement continue
beyond the expiration of 110 years from the date of this Agreement. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates
to the Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 6.02 of the
Indenture, stating (i) the Payment Date upon or with respect to which final
payment of the Certificates shall be made upon presentation and surrender
of the Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Certificate Paying
Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their Certificates for
cancellation within sixty (60) days after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
sixty (60) days after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining after exhaustion of such remedies
shall be distributed, subject to applicable escheat laws, by the Owner Trustee
to the Administrator.
23 2002-1 Trust Agreement
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
Section 10.1 Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or examination by Federal or state authorities. If
such bank 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 10.1, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 10.1, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 10.2.
Section 10.2 Resignation or Removal of the Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator. Upon receiving such notice
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 10.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses owed
to the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
24 2002-1 Trust Agreement
Section 10.3 Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as the Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 10.2 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 10.3, the Administrator shall mail notice of the successor of such
Owner Trustee to all Certificateholders, Indenture Trustee, the Noteholders and
each of the Rating Agencies. If the Administrator shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Administrator.
Section 10.4 Merger or Consolidation of the Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 10.1; and
provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5 Appointment of Co-Trustee or Separate Trustee. Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Owner Trust
Estate or any Financed Vehicle may at the time be located, the Administrator and
the Owner Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Owner
Trustee to act as co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 10.5, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to
25 2002-1 Trust Agreement
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, 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 become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Supplements and Amendments. (a) This Agreement may be amended
by the Depositor, the Administrator and the Owner Trustee, with prior written
notice to the Rating Agencies, without the consent of any of the Noteholders or
the Certificateholders:
26 2002-1 Trust Agreement
(i) to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided that such
action shall not adversely affect in any material respect the
interests of any Noteholder or Certificateholder;
(ii) in connection with any such election, to modify or
eliminate existing provisions set forth in this Agreement relating to
the intended federal income tax treatment of the Notes or Certificates
and the Trust in the absence of the election; it being a condition to
any such amendment that each Rating Agency shall have notified the
Depositor, the Administrator, Indenture Trustee and the Owner Trustee
in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or Certificates with
respect to which it is a Rating Agency; and
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to the
Trust of all or any portion of the Receivables to be recognized as a
sale under GAAP by the Depositor to the Trust, (b) the Trust to avoid
becoming a member of the Depositor consolidated group under GAAP or
(c) the Depositor, the Administrator or any of their Affiliates to
otherwise comply with or obtain more favorable treatment under any law
or regulation or any accounting rule or principle;
provided that any amendment entered into pursuant to this Section 11.1(a) shall
not significantly change the permitted activities of the Trust as set forth
herein.
(b) This Agreement may also be amended from time to time by the Depositor,
the Administrator and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Controlling Note Class and, to the
extent affected thereby, the consent of the Holders of Certificates evidencing
not less than a majority of the Certificate Percentage Interests for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Percentage Interests required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
Holders of all outstanding Certificates.
(c) Promptly after the execution of any such amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders or Indenture Trustee pursuant to this Section 11.1 to approve the
particular form of any proposed
27 2002-1 Trust Agreement
amendment or consent, but it shall be sufficient if such consent, where
required, shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement the Owner
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
Section 11.3 Limitations on Rights of Others. Except for Section 2.7, the
provisions of this Agreement are solely for the benefit of the Owner Trustee (in
its individual capacity and in its capacity as Owner Trustee), the Depositor,
the Administrator, the Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 11.4 Notices. (a) Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
by telecopy with receipt acknowledged by the recipient thereof or upon receipt
personally delivered, delivered by overnight courier or mailed certified mail,
return receipt requested, if to the Owner Trustee, addressed to the Corporate
Trust Office, with a copy to The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx Xxxx, Attention: Corporate Trust - ABS Group, fax no. (000) 000-0000;
if to the Depositor, addressed to 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxx; if to the Administrator, addressed to 000
Xxxxx Xxxxx Xxxxxx XX0, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx;
or, as to each party, at such other address and in such manner as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such notice.
28 2002-1 Trust Agreement
Section 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Administrator, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 11.8 No Petition. The Owner Trustee (not in its individual
capacity but solely as the Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder or Note Owner by accepting the benefits of this Agreement,
hereby covenants and agrees that they will not at any time institute against the
Trust or the Depositor, or solicit or join in or cooperate with or encourage any
institution against the Trust or the Depositor of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, this
Agreement or any of the Basic Documents.
Section 11.9 No Recourse. (a) Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Administrator, the Depositor, the Owner Trustee
(in its individual capacity), the Indenture Trustee or any Affiliate thereof and
no recourse may be had against such parties or their assets, except as expressly
set forth or contemplated in this Agreement, the Certificates or the Basic
Documents.
(b) In furtherance of and not in derogation of the foregoing, to the
extent the Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of the Depositor (other than the Trust Estate conveyed or purported to be
conveyed by the Depositor to another securitization trust or other Person or
Persons in connection therewith (whether by way of a sale, capital contribution
or by virtue of the granting of a Lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentences of this Section 11.9, a Certificateholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, whether asserted against or
through the Depositor or any other Person owned by the Depositor, or (ii) is
deemed to have any such interest, claim or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of Section 1111(b) of the
Federal Bankruptcy Code or any successor provision having similar effect under
the Bankruptcy Code), and whether deemed asserted against or through the
Depositor or any other Person owned by the
29 2002-1 Trust Agreement
Depositor, then each Certificateholder, by accepting a Certificate, further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible payment
in full of all obligations and liabilities of the Depositor which, under the
terms of the relevant documents relating to the securitization of such Other
Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to priority of distribution
or application under applicable law, including insolvency laws, and whether
asserted against the Depositor or any other Person owned by the Depositor),
including the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Certificateholder, by acceptance of a Certificate, further acknowledges and
agrees that no adequate remedy at law exists for a breach of this Section
11.9(b) and the terms of this Section 11.9(b) may be enforced by an action for
specific performance. The provisions of this Section 11.9(b) shall be for the
third party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
Section 11.10 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 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
30 2002-1 Trust Agreement
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.
THE BANK OF NEW YORK (DELAWARE),
as the Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
S-1 2002-1 Trust Agreement
M&I DEALER AUTO SECURITIZATION, LLC,
as Depositor
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
S-2 2002-1 Trust Agreement
M&I XXXXXXXX & ILSLEY BANK,
as the Administrator
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
S-3 2002-1 Trust Agreement
EXHIBIT A
FORM OF CERTIFICATE
NUMBER $100% CERTIFICATE PERCENTAGE INTEREST
R-1
M&I AUTO LOAN TRUST 2002-1
CERTIFICATE
Evidencing a beneficial interest in certain distributions of the Trust,
as defined below, the property of which includes a pool of Receivables sold to
the Trust by the Depositor.
(This Certificate does not represent an interest in or obligation of
M&I DEALER AUTO SECURITIZATION, LLC or any of its Affiliates, except to the
extent described below.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER JURISDICTION, AND
MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF AND ON BEHALF
OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH CERTIFICATE MAY BE
RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS THE CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH TO A
PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE
RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHER
SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE OWNER TRUSTEE SHALL REQUIRE (I)
THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO
THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND (II) A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE
EXPENSE OF THE OWNER TRUSTEE OR THE DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
SECURITIES ACT, IN EACH CASE
A-1
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR
JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY
PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE INITIAL
ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT
PLAN" WHETHER OR NOT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), ANY "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE
ASSETS OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER
PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT PLAN").
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THIS CERTIFIES THAT M&I DEALER AUTO SECURITIZATION, LLC is the
registered owner of a 100% Certificate Percentage Interest that is
nonassessable, fully-paid, beneficial interest in certain distributions of M&I
AUTO LOAN TRUST 2002-1 (the "Trust") formed by M&I Dealer Auto Securitization,
LLC, a Delaware limited liability company (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated as of
September 19, 2002 (the "Initial Trust Agreement"), between the Depositor and
The Bank of New York (Delaware), as owner trustee (the "Owner Trustee") and
amended and restated on October 10, 2002, 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 Sale and Servicing Agreement among the Owner Trustee, M&I Xxxxxxxx & Xxxxxx
Bank in such capacity as the Servicer (the "Servicer") the Depositor and the
Indenture Trustee, dated as of October 10, 2002, as the same may be amended or
supplemented from time to time.
This Certificate is one of the duly authorized Certificates designated
as M&I Auto Loan Trust 2002-1 Certificates (herein called the "Certificates").
Also issued under the Indenture dated as of October 10, 2002, between the Trust
and Indenture Trustee, are five classes of Notes designated as 1.77% Class A-1
Notes (the "Class A-1 Notes"), 1.95% Class A-2 Notes (the "Class A-2 Notes"),
2.49% Class A-3 Notes (the "Class A-3 Notes") 3.04% Class A-4 Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes") and 3.52% Class B Notes (the "Class B
Notes" and together with the Class A Notes, the "Notes"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there will be distributed on the 20/th/ day
of each month (or, if such 20/th/ day is not a Business Day, the next Business
Day), commencing on November 20, 2002, to the Person in whose name this
Certificate is registered at the close of business on the last day of the
preceding month, such Certificateholder's Certificate Percentage Interest in the
amount to be distributed to Certificateholders on such date.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, the Sale and Servicing
Agreement and the Trust Agreement, as applicable.
It is the intent of the Depositor and M&I Xxxxxxxx & Ilsley Bank, in
such capacity the administrator (the "Administrator") pursuant to the
Administration Agreement dated as of October 10, 2002, among the Administrator,
the Indenture Trustee and the Owner Trustee (the "Administration Agreement") and
the Certificateholder that, for purposes of federal income, state and local
income and franchise tax, so long as the Certificate is held solely by the
Depositor, the Trust will be disregarded as an entity separate from its owner.
At such time that the Certificate is held by more than one person, it is the
intent of the Administrator and the Certificateholder that, for purposes of
federal income, state and local income and franchise tax, the Trust will be
treated as a partnership, the assets of which are the assets held by the Trust,
and the Certificateholders will be treated as partners in that partnership. The
Certificateholder, by
A-3
acceptance of a Certificate, agrees to treat, and to take no action inconsistent
with the treatment of, the Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor or the Trust, or join in or encourage any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Trust Agreement or any
of the Basic Documents.
Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in the
Trust only and do not represent interests in or obligations of the Depositor,
the Servicer, the Administrator, the Seller, the Owner Trustee (in its
individual capacity), the Indenture Trustee or any Affiliate thereof and no
recourse may be had against such parties or their assets, except as expressly
set forth or contemplated in the Trust Agreement, the Certificates or the Basic
Documents.
In furtherance of and not in derogation of the foregoing, to the extent
the Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of the Depositor conveyed or purported to be conveyed by the Depositor to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a Lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained herein, a Certificateholder either (i) asserts an interest
or claim to, or benefit from, Other Assets, whether asserted against or through
the Depositor or any other Person owned by the Depositor, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through the Depositor
or any other Person owned by the Depositor, then each Certificateholder, by
accepting a Certificate, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of the
Depositor which, under the terms of the relevant documents relating to the
securitization of such Other Assets, are entitled to be paid from, entitled to
the benefits of, or otherwise secured by such Other Assets (whether or not any
such entitlement or security interest is legally perfected or otherwise entitled
to priority of distribution or application under applicable law, including
insolvency laws, and whether asserted against the Depositor or any other Person
owned by the Depositor), including the payment of post-petition interest on such
other obligations and liabilities. This subordination agreement shall be deemed
a subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. Each Certificateholder, by acceptance of a Certificate, further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this paragraph and the terms of this paragraph may be enforced by an action for
specific performance. The provisions of this paragraph shall be for the third
party benefit of those entitled to rely thereon and shall survive the
termination of the Trust Agreement.
A-4
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-5
IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity, but solely
as the Owner Trustee
Dated:_______________ By:___________________________________
A-6
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
THE BANK OF NEW YORK (DELAWARE), as
the Owner Trustee
By:________________________
Authenticating Agent
By:________________________
Authorized Signatory
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip
code, of assignee)
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:_________________ _____________________________________
*
Signature Guaranteed:
*
_____________________________________
___________________________
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate
in every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by a member firm of the New
York Stock Exchange or a commercial bank or trust company.
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[Date]
M&I Auto Loan Trust 2002-1
c/o The Bank of New York (Delaware),
as the Owner Trustee and
as the Certificate Registrar
Xxxxx Xxxx Center, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed sale of the 100% Certificate (the
"Certificate") of M&I Auto Loan Trust 2002-1 (the "Trust"), a trust formed by
M&I Dealer Auto Securitization, LLC, (the "Depositor"), we confirm that:
a. the Depositor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all
claims and encumbrances whatsoever.
b. Neither the Depositor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any interest in the Certificate or any other
similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition
of the Certificate, any interest in the Certificate or any other
similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to the Certificate, any
interest in the Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with
respect to the Certificate, any interest in the Certificate or
any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to
the Certificate, any interest in the Certificate or any other
similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution under the Securities Act of 1933 (the "Securities
Act"), or would render the disposition of the Certificate a
violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification
of the Certificate pursuant to the Securities Act or any state
securities laws.
c. The Depositor and any person acting on behalf of the Depositor
in this matter reasonably believe that the Transferee is either
(a) a "qualified institutional buyer" (as that term is defined
in Rule 144A ("Rule 144A") under the Securities Act) purchasing
for its own account or (b) either (i) an "accredited investor"
within the meaning of paragraph (1), (2), (3) or (7) of Rule
501(a) under the Securities Act
B-1
or (ii) an entity in which all the equity owners are "accredited
investors" within the meaning of paragraph (1), (2), (3) or (7)
of Rule 501(a) under the Securities Act, and has such knowledge
and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in
the Certificate.
d. Unless the Transferee is either (a) an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act or (b) an entity in which all the equity owners
are "accredited investors" within the meaning of paragraph (1),
(2), (3) or (7) of Rule 501(a) under the Securities Act that is
furnishing a Transferee Certificate in the form of Exhibit C to
the Trust Agreement, the Depositor or a person acting on its
behalf has taken reasonable steps to ensure that the Transferee
is aware that the Depositor is relying on the exemption from the
provisions of Section 5 of the Securities Act provided by Rule
144A.
e. The Depositor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information
regarding (a) the Certificates and distributions thereon, (b)
the nature, performance and servicing of the Receivables, (c)
the Trust Agreement, and (d) any credit enhancement mechanism
associated with the Certificate, that the Transferee has
requested.
Very truly yours,
Print Name of Transferor
By:_________________________________
Name:_______________________________
Title:______________________________
B-2
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
[Date]
M&I Auto Loan Trust 2002-1,
c/o The Bank of New York (Delaware),
as the Owner Trustee and
as the Certificate Registrar
Xxxxx Xxxx Center, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of the 100% Certificates (the
"Certificates") of M&I Auto Loan Trust 2002-1 (the "Trust"), a trust formed by
M&I Dealer Auto Securitization, LLC (the "Depositor"), we confirm that:
a. We are a "qualified institutional buyer" as defined in Rule 144A
("QIB") and are acquiring the Certificate for its own
institutional account (and not for the account of others) or as
a fiduciary or agent for others (which others also are QIBs);
b. We acknowledge that the Certificates have not been and will not
be registered under the Securities Act or the securities laws of
any jurisdiction;
c. We are familiar with Rule 144A and are aware that the sale is
being made in reliance on Rule 144A and we are not acquiring the
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the
meaning of the Securities Act or a violation of the Securities
Act, and that, if in the future we decide to resell, assign,
pledge or otherwise transfer any Certificates, such Certificates
may be resold, assigned, pledged or transferred only (i) to the
Depositor or any Affiliate thereof, (ii) so long as such
Certificate is eligible for resale pursuant to Rule 144A, to a
person whom we reasonably believe after due inquiry is a QIB
acting for its own account (and not for the account of others)
or as a fiduciary or agent for others (which others also are
QIBs) to whom notice is given that the resale, pledge,
assignment or transfer is being made in reliance on Rule 144A,
(iii) pursuant to an effective registration statement under the
Securities Act or (iv) in a sale, pledge or other transfer made
in a transaction otherwise exempt from the registration
requirements of the Securities Act, in which case (A) the Owner
Trustee will require that both the prospective transferor and
the prospective transferee certify to the Owner Trustee and the
Depositor in writing the facts surrounding such transfer, which
certification shall be in form and substance satisfactory to the
Owner Trustee and the Depositor and (B) the Owner Trustee will
require a written opinion of counsel
C-1
(which will not be at the expense of the Depositor or the Owner
Trustee) satisfactory to the Depositor and the Owner Trustee to
the effect that such transfer will not violate the Securities
Act, in each case in accordance with any applicable securities
or "Blue Sky" laws of any state of the United States;
d. No Certificate will be acquired or held by any "employee benefit
plan" subject to ERISA or a "plan" described by Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or
by any entity deemed to hold the assets of any of the foregoing
by reason of an employee benefit plan's or other plan's
investment in such entity. Each Person who acquires any
Certificate or interest therein will certify that the foregoing
conditions are satisfied.
e. We are aware that we (or any account for which we are
purchasing) may be required to bear the economic risk of an
investment in the Certificates for an indefinite period, and we
(or such account) are able to bear such risk for an indefinite
period;
f. We understand that the Certificates will bear legends
substantially as set forth in Section 3.12 of the Trust
Agreement;
g. If we are acquiring any Certificates for the account of one or
more qualified institutional buyers, we represents that we have
sole investment discretion with respect to each such account and
that we have full power to make the foregoing acknowledgments,
representations and agreements on behalf of each such account;
and
h. We acknowledge that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of
the foregoing acknowledgments, representations and agreements.
C-2
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:___________________
Name:
Title:
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