Exhibit 4.1
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AMENDED AND RESTATED
TRUST AGREEMENT
between
MMCA AUTO RECEIVABLES TRUST II,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of December 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS...........................................................................................1
ARTICLE II - ORGANIZATION OF THE TRUST............................................................................1
Section 2.1 Name....................................................................................1
Section 2.2 Office..................................................................................1
Section 2.3 Purposes and Powers.....................................................................1
Section 2.4 Appointment of Owner Trustee............................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate......................................2
Section 2.6 Declaration of Trust....................................................................2
Section 2.7 Title to Trust Property.................................................................3
Section 2.8 Situs of Trust..........................................................................3
Section 2.9 Representations and Warranties of the Depositor.........................................3
Section 2.10 Federal Income Tax Matters..............................................................4
Section 2.11 Characterization of the Trust...........................................................4
ARTICLE III - TRUST CERTIFICATES AND TRANSFER OF INTERESTS........................................................5
Section 3.1 Initial Ownership.......................................................................5
Section 3.2 The Certificates........................................................................5
Section 3.3 Authentication of Certificates..........................................................5
Section 3.4 Registration of Certificates; Transfer and Exchange of Certificates.....................5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates......................................10
Section 3.6 Persons Deemed Owners of Certificates..................................................10
Section 3.7 Access to List of Certificateholders' Names and Addresses..............................10
Section 3.8 Maintenance of Office or Agency........................................................11
Section 3.9 Appointment of Paying Agent............................................................11
ARTICLE IV - ACTIONS BY OWNER TRUSTEE............................................................................11
Section 4.1 Prior Notice to Certificateholders with Respect to Certain Matters.....................11
Section 4.2 Action by Certificateholders with Respect to Certain Matters...........................12
Section 4.3 Action by Certificateholders with Respect to Bankruptcy................................12
Section 4.4 Restrictions on Certificateholders' Power..............................................12
Section 4.5 Majority Control.......................................................................12
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...........................................................13
Section 5.1 Establishment of Certificate Distribution Account......................................13
Section 5.2 Application of Trust Funds.............................................................13
Section 5.3 Method of Payment......................................................................13
Section 5.4 No Segregation of Monies; No Interest..................................................14
Section 5.5 Accounting and Reports to the Certificateholders, the Internal Revenue
Service and Others....................................................................14
Section 5.6 Signature on Returns; Tax Matters Partner..............................................14
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE...............................................................15
Section 6.1 General Authority......................................................................15
Section 6.2 General Duties.........................................................................15
Section 6.3 Action upon Instruction................................................................15
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions.....................16
Section 6.5 Restrictions...........................................................................16
ARTICLE VII - REGARDING THE OWNER TRUSTEE........................................................................17
Section 7.1 Acceptance of Trusts and Duties........................................................17
Section 7.2 Furnishing of Documents................................................................18
Section 7.3 Representations and Warranties.........................................................18
Section 7.4 Reliance; Advice of Counsel............................................................18
Section 7.5 Not Acting in Individual Capacity......................................................19
Section 7.6 Owner Trustee Not Liable for Certificates or Receivables...............................19
Section 7.7 Owner Trustee May Own Certificates and Notes...........................................19
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE.....................................................................19
Section 8.1 Owner Trustee's Fees and Expenses......................................................19
Section 8.2 Indemnification........................................................................19
Section 8.3 Payments to the Owner Trustee..........................................................20
ARTICLE IX - TERMINATION.........................................................................................20
Section 9.1 Termination of Trust Agreement.........................................................20
Section 9.2 Prepayment of the Certificates.........................................................21
ARTICLE X - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES..............................................22
Section 10.1 Eligibility Requirements for Owner Trustee.............................................22
Section 10.2 Resignation or Removal of Owner Trustee................................................22
Section 10.3 Successor Owner Trustee................................................................23
Section 10.4 Merger or Consolidation of Owner Trustee...............................................23
Section 10.5 Appointment of Co-Trustee or Separate Trustee..........................................23
ARTICLE XI - MISCELLANEOUS.......................................................................................24
Section 11.1 Supplements and Amendments.............................................................24
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders.............................26
Section 11.3 Limitation on Rights of Others.........................................................26
Section 11.4 Notices................................................................................26
Section 11.5 Severability...........................................................................26
Section 11.6 Separate Counterparts..................................................................27
Section 11.7 Successors and Assigns.................................................................27
Section 11.8 Covenants of the Depositor.............................................................27
Section 11.9 No Petition; Subordination; Claims Against Depositor...................................27
Section 11.10 No Recourse............................................................................28
Section 11.11 Headings...............................................................................28
Section 11.12 Governing Law..........................................................................28
EXHIBITS
Form of Certificate ......................................................................................Exhibit A
Form of Certificate of Trust .............................................................................Exhibit B
Form of Rule 144A Transferor Certificate .................................................................Exhibit C
Form of Investment Letter - Qualified Institutional Buyer ................................................Exhibit D
Form of Investment Letter - Institutional Accredited Investor ............................................Exhibit E
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 1, 2002 (as the
same may be further amended, supplemented or otherwise modified and in effect
from time to time, this "Agreement"), between MMCA AUTO RECEIVABLES TRUST II, a
Delaware statutory trust, as depositor (the "Depositor"), having its principal
executive office at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000; and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee under this
agreement (in such capacity, together with any successor or permitted assign,
the "Owner Trustee"), having its principal corporate trust office at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
WHEREAS, the parties hereto intend to amend and restate that certain Trust
Agreement, dated as of September 10, 2002 between the Depositor and the Owner
Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Depositor and the Owner
Trustee hereby agree as follows:
ARTICLE I - DEFINITIONS
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A to the Indenture (the "Indenture"), dated as of December 1, 2002,
between the Trust, as issuer, and Bank of Tokyo-Mitsubishi Trust Company, as
indenture trustee (the "Indenture Trustee"), which also contains rules as to
usage that shall be applicable herein.
ARTICLE II - ORGANIZATION OF THE TRUST
Section 2.1 Name. The Trust created hereby shall be known as "MMCA Auto
Owner Trust 2002-5," in which name the Owner Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and xxx and be sued.
Section 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in the State of
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.3 Purposes and Powers. (a) The purpose of the Trust is, and the
Trust shall have the power and authority, to engage solely in the following
activities:
(i) to acquire and hold the assets of MART II, including the
Receivables, and the proceeds of those assets;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes upon the
written order of the Depositor;
(iii) to enter into and perform its obligations under any interest
rate protection agreement or agreements between the Trust and one or more
counterparties, including any confirmations evidencing the transactions
thereunder, each of which is an interest rate swap, an interest rate cap,
an obligation to enter into any of the foregoing, or any combination of any
of the foregoing;
(iv) with the proceeds of the sale of the Notes to fund the Reserve
Account and the Yield Supplement Account, to pay the organizational,
start-up and transactional expenses of the Trust, and to pay the balance to
the Depositor pursuant to the Sale and Servicing Agreement;
(v) to pay interest on and principal of the Notes and distributions on
the Certificates;
(vi) to assign, grant, transfer, pledge, mortgage and convey the Owner
Trust Estate (other than the Certificate Distribution Account and the
proceeds thereof) to the Indenture Trustee pursuant to the Indenture;
(vii) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(viii) 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
(ix) 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 Noteholders and
the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents. In addition, notwithstanding anything to the contrary herein or
in any other Basic Document, the Trust shall not take any action (i)
inconsistent with the derecognition of the Receivables under GAAP or (ii) that
would cause the Trust to become a member of MMCA's consolidated group under
GAAP.
Section 2.4 Appointment of Owner Trustee. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein and in the Statutory Trust
Statute.
Section 2.5 Initial Capital Contribution of Owner Trust Estate. As of
September 10, 2002, the Depositor sold, assigned, transferred, conveyed and set
over to the Owner Trustee the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of such date, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
Section 2.6 Declaration of Trust. The Owner Trustee hereby declares that it
will hold the Owner 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 (i) the Trust constitute a statutory trust under the
Statutory Trust Statute and that this Agreement constitute the governing
instrument of such statutory trust and (ii) solely for income and franchise tax
purposes, the Trust shall be treated (a) if it has a single beneficial owner, as
a nonentity and (b) if it has more than one beneficial owner, as a partnership,
with the assets of the partnership being the Receivables, the Trust's rights
under the Interest Rate Swap Agreements and other assets held by the Trust, the
partners of the partnership being the Certificateholders and the Notes
constituting indebtedness of the partnership. The parties agree that, unless
otherwise required by the appropriate tax authorities, the Trust will file or
cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust either as a nonentity or as a
partnership for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Statutory Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee has filed the Certificate of Trust with the Secretary of
State.
Section 2.7 Title to Trust Property. Legal title to the entirety of the
Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
Section 2.8 Situs of Trust. The Trust shall be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than the
State of Delaware; provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or New York,
and payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in the State of
Delaware.
Section 2.9 Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a statutory
trust in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign business
trust 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.
(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 corporate action; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Depositor by all necessary corporate action.
(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 or both) a default under, the Certificate of Trust or amended and
restated trust agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); 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 of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
Federal income tax attributes or Applicable Tax State franchise or income tax
attributes, of the Notes.
(f) The representations and warranties of the Depositor in Section 3.1 of
the Purchase Agreement are true and correct.
Section 2.10 Federal Income Tax Matters. The Certificateholders acknowledge
that it is their intent and that they understand it is the intent of the
Depositor and the Servicer that, for purposes of Federal income, state and local
income and franchise tax and any other income taxes, the Trust will be treated
either as a "nonentity" under Treasury Regulation Section 301.7701-3 or as a
partnership, and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to such treatment and
agree to take no action inconsistent with such treatment. For each taxable year
(or portion thereof), other than periods in which there is only one
Certificateholder:
(a) to the extent amounts paid to the Depositor pursuant to Sections
4.1(c), 4.7(a), 4.7(c) and 4.12 of the Sale and Servicing Agreement or clause
(i) of the fourth paragraph of Section 5.1(a) of the Sale and Servicing
Agreement for such year (or other period) are paid in respect of items of income
(as determined for Federal income tax purposes), such income shall be allocated
to the Depositor; and
(b) all remaining net income or net loss, as the case may be, of the Trust
for such year (or other period) as determined for Federal income tax purposes
(and each item of income, gain, credit, loss or deduction entering into the
computation thereof) shall be allocated to the Certificateholders pro rata in
accordance with the outstanding principal balances of their respective
Certificates.
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 or the
Certificateholders or as otherwise required by the Code.
Section 2.11 Characterization of the Trust. For purposes of SFAS 140, the
parties hereto intend that the Trust shall be treated as a "qualifying special
purpose entity" as such term is used in SFAS 140 and any successor rule thereto
and its permitted activities shall be limited in accordance with paragraphs 35
through 45 thereof. The Depositor agrees that it does not have the right to
prepay the Notes prior to the maturity date thereof under any circumstances and
does hereby irrevocably waive and relinquish such right.
ARTICLE III - TRUST 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 issued in one or
more registered, definitive, physical certificates, in substantially the form
set forth in Exhibit A, in minimum denominations of at least $1,000,000 and
multiples of $1,000 in excess thereof; provided, however, that a single
Certificate may be issued in a denomination equal to the Initial Certificate
Balance less the aggregate denominations of all other Certificates or a
denomination less than $1,000. No Certificate may be sold, transferred,
assigned, participated, pledged, or otherwise disposed of (any such act, a
"Transfer") to any Person except in accordance with the provisions of Section
3.4, and any attempted Transfer in violation of this Section or Section 3.4
shall be null and void (each, a "Void Transfer"). Notwithstanding the foregoing,
following the delivery to the Owner Trustee of an Opinion of Counsel to the
effect that the elimination of restrictions on transfer will not cause the Trust
to be taxable as a corporation for Federal income tax purposes or for purposes
of the tax laws of any Applicable Tax State, this Agreement may be amended to
modify or delete transfer restrictions in accordance with such Opinion of
Counsel.
The Certificates may be in printed or typewritten form and shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits 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 Transfer of the Certificates is permitted pursuant to this Section 3.2
and Section 3.4, 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 sale of
the Receivables to the Trust pursuant to the Sale and Servicing Agreement, the
Owner Trustee shall cause the Certificates, in an aggregate principal amount
equal to the Initial Certificate Balance, to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by its chief executive officer, chief financial officer, chief accounting
officer, treasurer or secretary, without further corporate action by the
Depositor, in authorized denominations. No Certificate shall entitle its Holder
to any benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A attached hereto executed by the
Owner Trustee or Wilmington Trust Company, as the Owner Trustee's authenticating
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 3.4 Registration of Certificates; 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 Trust
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Wilmington Trust Company shall be
the initial Certificate Registrar. No Transfer of a Certificate shall be
recognized except upon registration of such Transfer in the Certificate
Register.
(b) No Certificateholder shall Transfer any Certificate initially held by
it unless such transfer is made pursuant to an effective registration statement
or otherwise in accordance with the requirements under the Securities Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction which does not require such registration or
qualification. If a transfer is to be made in reliance upon an exemption from
the Securities Act, and under the applicable state securities laws, (i) the
Certificate Registrar shall require an Opinion of Counsel reasonably
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from the Securities Act, applicable state securities laws
and other relevant laws, which Opinion of Counsel shall not be an expense of the
Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate
Registrar shall require the transferee to execute a certification acceptable to
and in form and substance satisfactory to the Certificate Registrar setting
forth the facts surrounding such transfer.
(c) No Transfer of any Certificate shall be permitted, recognized or
recorded unless the Depositor has consented in writing to such Transfer, which
consent may be withheld in the sole discretion of the Depositor; provided,
however, that no such consent of the Depositor shall be required where the
proposed transferee is, and at the time of the Transfer will be, a
Certificateholder. Each Certificate shall bear a legend to the following effect
unless determined otherwise by the Administrator (as certified to the
Certificate Registrar in an Officer's Certificate) consistent with applicable
law:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT
OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT
LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE
144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE
REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM
ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE
CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT
SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT E TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN
ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING
CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE
DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO
REASON)."
As a condition to the registration of any Transfer of a Certificate, the
prospective transferee of such a Certificate shall represent to the Owner
Trustee and the Certificate Registrar the following:
(i) It has neither acquired nor will it Transfer any Certificate it
purchases (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the Code, including,
without limitation, an over-the-counter-market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations.
(ii) It either (A) is not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. Federal income tax
purposes, or (B) is such an entity, but none of the direct or indirect
beneficial owners of any of the interests in such transferee have allowed
or caused, or will allow or cause, 80% or more (or such other percentage as
the Depositor may establish prior to the time of such proposed Transfer) of
the value of such interests to be attributable to such transferee's
ownership of Certificates.
(iii) It understands that no subsequent Transfer of the Certificates
is permitted unless (A) such Transfer is of a Certificate with a
denomination of at least $1,000,000 and (B) the Depositor consents in
writing (which consent may be withheld for any reason or for no reason) to
the proposed Transfer; provided, however, that no such consent shall be
required where the proposed transferee is, and at the time of the Transfer
will be, a Holder of a Certificate.
(iv) It understands that the opinion of tax counsel that the Trust is
not a publicly traded partnership taxable as a corporation is dependent in
part on the accuracy of the representations in paragraphs (i), (ii) and
(iii) above.
(v) If it is acquiring any Certificates as a fiduciary or agent for
one or more investor accounts, it has sole investment discretion with
respect to each such account and it has full power to make the
acknowledgments, representations and agreements contained herein on behalf
of each such account.
(vi) It is not (A) an employee benefit plan, as defined in Section
3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in
Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in
Section 3(32) of ERISA, subject to any Federal, state or local law which
is, to a material extent, similar to the provisions of Section 406 of ERISA
or Section 4975 of the Code, (D) an entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (within the
meaning of Department of Labor Regulation 29 X.X.X.xx. 2510.3-101) or (E) a
person investing "plan assets" of any such plan (excluding, for purposes of
this clause (E), any entity registered under the Investment Company Act of
1940, as amended).
(vii) It is a Person who is either (A) (1) a citizen or resident of
the United States, (2) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision
thereof or (3) a Person not described in (1) or (2) whose ownership of the
Certificates is effectively connected with such Person's conduct of a trade
or business within the United States (within the meaning of the Code) and
who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and
such other certifications, representations or opinions of counsel as may be
requested by the Depositor or the Owner Trustee) or (B) an estate or trust
the income of which is includible in gross income for United States Federal
income tax purposes, regardless of source.
(viii) It understands that any purported Transfer of any Certificate
(or any interest therein) in contravention of any of the restrictions and
conditions (including any violation of the representation in paragraph (ii)
above by an investor who continues to hold such Certificates occurring any
time after the Transfer in which it acquired such Certificates) in this
Section 3.4 shall be a Void Transfer, and the purported transferee in a
Void Transfer shall not be recognized by the Trust or any other Person as a
Certificateholder for any purpose.
(ix) It agrees that if it determines to Transfer any of the
Certificates it will cause its proposed transferee to provide to the Trust
and the Certificate Registrar a letter substantially in the form of Exhibit
D or E hereof, as applicable, or such other written statement as the
Depositor shall prescribe.
(d) By acceptance of any Certificate, the Certificateholder thereof
specifically agrees with and represents to the Depositor, the Certificate
Registrar and the Trust that no Transfer of such Certificate shall be made
unless the registration requirements of the Securities Act and any applicable
state securities laws are complied with, or such Transfer is exempt from the
registration requirements under the Securities Act because the Transfer
satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A under the Securities
Act ("Rule 144A"), to a transferee who the transferor reasonably believes
is a Qualified Institutional Buyer that is purchasing for its own account
or for the account of a Qualified Institutional Buyer and to whom notice is
given that such transfer is being made in reliance upon Rule 144A and (x)
the transferor executes and delivers to the Trust and the Certificate
Registrar a Rule 144A transferor certificate substantially in the form
attached as Exhibit C and (y) the transferee executes and delivers to the
Trust and the Certificate Registrar an investment letter substantially in
the form attached as Exhibit D;
(ii) after the appropriate holding period, such Transfer is pursuant
to an exemption from registration under the Securities Act provided by Rule
144 under the Securities Act and the transferee, if requested by the Trust
or the Certificate Registrar, delivers an Opinion of Counsel in form and
substance satisfactory to the Trust and the Depositor; or
(iii) such Transfer is to an institutional accredited investor as
defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Securities Act in a transaction exempt from the registration
requirements of the Securities Act, such Transfer is in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction, and such investor executes and delivers to the Trust and the
Certificate Registrar an investment letter substantially in the form
attached as Exhibit E.
(e) The Trust shall make available to the prospective transferor and
transferee information requested to satisfy the requirements of paragraph (d)(4)
of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall
include any or all of the following items requested by the prospective
transferee:
(i) each statement delivered to Certificateholders pursuant to Section
4.9 of the Sale and Servicing Agreement on each Payment Date preceding such
request; and
(ii) such other information as is reasonably available to the Owner
Trustee in order to comply with requests for information pursuant to Rule
144A under the Securities Act.
None of the Depositor, the Certificate Registrar or the Trust is under an
obligation to register any Certificate under the Securities Act or any other
securities law.
(f) Upon surrender for registration of Transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8 and upon compliance with any
provisions of this Agreement relating to such Transfer, the Owner Trustee shall
execute, authenticate and deliver (or shall cause Wilmington Trust Company, as
its authenticating agent, to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent.
Subject to Sections 3.4(b) and 3.4(c), at the option of a
Certificateholder, Certificates may be exchanged for other Certificates of
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.
Every Certificate presented or surrendered for registration of Transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate surrendered for registration of
Transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
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 of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any Transfer or exchange of Certificates.
(g) The provisions of this Section 3.4 and of this Agreement generally are
intended to prevent the Trust from being characterized as a "publicly traded
partnership" within the meaning of Section 7704 of the Code, in reliance on
Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such
intent into account in determining whether or not to consent to any proposed
Transfer of any Certificate.
The preceding provisions of this Section 3.4 notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar shall not register any
Transfer or exchange of Certificates for a period of 15 days preceding the due
date for any payment with respect to the Certificates.
Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be responsible for ascertaining whether any transfer complies
with the registration provisions or exemptions from the Securities Act, the
Exchange Act, applicable state securities law or the Investment Company Act of
1940, as amended; provided, however, that if a certification is specifically
required to be delivered to the Owner Trustee by a purchaser or transferee of a
Certificate, the Owner Trustee shall be under a duty to examine the same to
determine whether it conforms to the requirements of this Trust Agreement and to
register transfers only upon receipt of documents and certifications specified
herein and shall promptly notify the party delivering the same if such
certification does not so conform.
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 bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
Wilmington Trust Company, as the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for, or in lieu of, any such mutilated,
destroyed, lost or stolen Certificate, as the case may be, a new Certificate of
like tenor and denomination. 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 ownership 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 Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar and any Paying Agent 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 Paying Agent 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 and the
Depositor, or to the Indenture Trustee, within 15 days after receipt by the
Owner Trustee of a written request therefor from the Servicer, the Depositor, or
the Indenture Trustee, as the case may be, a list, in such form as the
requesting party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holders of Certificates evidencing not less
than 25% of the Certificate Balance 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 any of the Depositor,
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 Wilmington, Delaware, an office or offices or agency or agencies
where Certificates may be surrendered for registration of Transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee shall give
prompt written notice to the Depositor and to the Certificateholders of any
change in the location of the Certificate Registrar or any such office or
agency.
Section 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be
Wilmington Trust Company, and any co-paying agent chosen by the Owner Trustee.
Wilmington Trust Company shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. In the event that Wilmington Trust
Company shall no longer be the Paying Agent, the Owner Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE IV - ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless, (i) at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders and the Rating Agencies in
writing of the proposed action and (ii) Certificateholders holding not less than
a majority of the aggregate Certificate Balance shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought by the Servicer in connection with the collection of the
Receivables) and the settlement of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or lawsuits
for collection by the Servicer of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or Swap Counterparty is
required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or Swap Counterparty is not
required and such amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or add any provision that would
not materially adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent for the Notes or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the assignment
by the Note Registrar, Paying Agent for the Notes or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this Agreement,
as applicable.
Section 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee may not, except upon the occurrence of an Event of Servicing
Termination subsequent to the payment in full of the Notes and in accordance
with the written direction of Certificateholders holding not less than a
majority of the aggregate Certificate Balance, (a) remove the Servicer under the
Sale and Servicing Agreement pursuant to Article VIII thereof, (b) appoint a
successor Servicer pursuant to Article VIII of the Sale and Servicing Agreement,
(c) remove the Administrator under the Administration Agreement pursuant to
Section 8 thereof, (d) appoint a successor Administrator pursuant to Section 8
of the Administration Agreement or (e) sell the Receivables after the
termination of the Indenture, except as expressly provided in the Basic
Documents.
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 unless the Notes have been paid in full and
each Certificateholder approves of such commencement in advance and delivers to
the Owner Trustee 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 Trust or the Owner Trustee under this Agreement or any of the other 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 Majority 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 Balance. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance 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. Pursuant to
Section 4.1(e) of the Sale and Servicing Agreement, there has been established
and there shall be maintained a segregated trust account in the name of the
Owner Trustee which shall be designated as the "Certificate Distribution
Account." The Certificate Distribution Account shall be held in trust in the
name of the Owner Trustee for the benefit of the Certificateholders. Except as
expressly provided in Section 3.9, the Certificate Distribution Account shall be
under the sole dominion and control of the Owner Trustee. All monies deposited
from time to time in the Certificate Distribution Account pursuant to the Sale
and Servicing Agreement or the Indenture shall be applied as provided in this
Agreement and the Sale and Servicing Agreement or the Indenture.
Section 5.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee (if other than the Paying
Agent) shall, based on the information contained in the Servicer's Certificate
delivered on the relevant Determination Date pursuant to Section 3.9 of the Sale
and Servicing Agreement, transfer the amount deposited in the Certificate
Distribution Account pursuant to Section 2.8(a) of the Indenture on such Payment
Date to the Paying Agent, or the Paying Agent, based upon such information,
shall withdraw from the Certificate Distribution Account, for distribution to
the Certificateholders pro rata based on the outstanding principal balance of
the Certificates funds available therein.
(b) On each Payment Date, the Owner Trustee shall, or shall cause the
Paying Agent to, send to each Certificateholder the statement provided to the
Owner Trustee by the Servicer pursuant to Section 4.9 of the Sale and Servicing
Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section 5.2. The Owner Trustee and each Paying Agent is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any such withholding tax
that is legally owed by the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may, in its sole discretion, withhold such
amounts in accordance with this paragraph (d). 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 Holder at a
bank or other entity having appropriate facilities therefor, if (i) such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date, or
(ii) such Certificateholder is the Depositor or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register. Notwithstanding the foregoing, the final distribution in respect of
any Certificate (whether on the Certificateholders' final scheduled Payment Date
or otherwise) 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 hereunder need not be segregated
in any manner except to the extent required by law, the Indenture or the Sale
and Servicing Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.5 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others. The Owner Trustee shall, based on information
provided by the Depositor, (a) maintain (or cause to be maintained) the books of
the Trust on the basis of a fiscal year ending December 31 and based on the
accrual method of accounting, (b) deliver 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) file such tax returns
relating to the Trust (including a partnership information return, IRS Form
1065), 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(c) with respect to income
or distributions to Certificateholders. The Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
The Owner Trustee may satisfy its obligations with respect to this Section
5.5 by retaining, at the expense of the Depositor, a firm of independent public
accountants (the "Accountants") chosen by the Depositor which shall perform the
filing obligations of the Owner Trustee hereunder. The Accountants will provide
prior to December 31, 2002, a letter in form and substance satisfactory to the
Owner Trustee as to whether any Federal tax withholding on Certificates is then
required and, if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no longer
be required. The Owner Trustee shall be deemed to have discharged its
obligations pursuant to this Section upon its retention of the Accountants, and
the Owner Trustee shall not have any liability with respect to the default or
misconduct of the Accountants.
Section 5.6 Signature on Returns; Tax Matters Partner. (a) The Depositor,
as general partner for income tax purposes, shall sign, on behalf of the Trust,
the tax returns of the Trust.
(b) The Depositor shall be designated 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 Trust is to be a party
and each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents to which the Trust is to be a party and any amendment or
other agreement, in each case, in such form as the Depositor shall approve, as
evidenced conclusively by the Owner Trustee's execution thereof and the
Depositor's execution of this Agreement, and to direct the Indenture Trustee to
authenticate and deliver Notes in the aggregate principal amount of $[ ]
(comprised of $[ ] in aggregate principal amount of Class A-1 Notes, $[ ] in
aggregate principal amount of Class A-2 Notes, $[ ] in aggregate principal
amount of Class A-3 Notes, $[ ] in aggregate principal amount of Class A-4
Notes, $[ ] in aggregate principal amount of Class B Notes and $[ ] in aggregate
principal amount of Class C Notes). In addition to the foregoing, the Owner
Trustee is authorized to take all actions required of the Trust pursuant to the
Basic Documents. The Owner Trustee is further authorized from time to time to
take such action on behalf of the Trust as is permitted by the Basic Documents
and which the Servicer or the Administrator recommends 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 to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the lien of the Indenture and in accordance with the provisions of
this Agreement and the other Basic Documents. 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 or any
other Person is required in the Administration Agreement or any of the Basic
Documents to perform any act or to discharge such duty of the Owner Trustee or
the Trust hereunder or under any other Basic Document, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator or any
other Person to carry out its obligations under the Administration Agreement or
any of the Basic Documents.
Section 6.3 Action upon Instruction. (a) Subject to Article IV, and in
accordance with the terms of the Basic Documents, the Certificateholders may, by
written instruction, direct the Owner Trustee in the management of the Trust.
(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 shall have been advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or
of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within 10 days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the other 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.
(d) In the event the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other 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 may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other 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 or the Trust 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 other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any other Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any lien
(other than the lien of the Indenture) on any part of the Owner Trust Estate
that results from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
Section 6.5 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
or Delaware or California income or franchise tax purposes, (ii) be deemed to
cause a taxable exchange of the Notes for Federal income or Delaware or
California income or franchise tax purposes or (iii) cause the Trust or any
portion thereof to be taxable as an association or publicly traded partnership
taxable as a corporation for Federal income or Delaware or California 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 - REGARDING THE 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 monies actually received by it constituting part of the
Owner Trust Estate upon the terms of this Agreement to which the Trust or Owner
Trustee is a party and the other Basic Documents. The Owner Trustee shall not be
answerable or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by the Owner Trustee, in its
individual capacity. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the provisions of this Agreement
at the instructions of any Certificateholder, the Indenture Trustee, the
Depositor, the Administrator or the Servicer;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk its personal funds or otherwise
incur any financial liability in the performance of any of its rights or duties
hereunder, or under any other 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 distributions on the
Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the other Basic Documents, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the other
Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Servicer, the Administrator, the Depositor, the Indenture Trustee or any
other Person under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform or monitor the performance of
the obligations of the Trust under this Agreement or the other Basic Documents
that are required to be performed by the Administrator under the Administration
Agreement, the Servicer under the Sale and Servicing Agreement or the Indenture
Trustee under the Indenture; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Basic Document, at the request, order or direction of any
of the Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby; the right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its willful misconduct, bad faith or negligence in the performance of any
such act.
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 Owner Trustee, in its
individual capacity, hereby represents and warrants to the Depositor, for the
benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of 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) 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 bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
Section 7.4 Reliance; Advice of Counsel. (a) The Owner Trustee may rely
upon, shall be protected in relying upon, and shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this Agreement or
any other Basic Document.
Section 7.5 Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any other Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.6 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, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any other 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 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 any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document, or the
accuracy of any such warranty or representation or any action of the Indenture
Trustee, the Administrator or the Servicer or any subservicer taken in the name
of the Owner Trustee.
Section 7.7 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, the Servicer,
the Administrator and the Indenture Trustee in banking transactions with the
same rights as it would have if it were not Owner Trustee.
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE
Section 8.1 Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Owner Trustee, and the Owner Trustee shall be entitled to and reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
Section 8.2 Indemnification. The Depositor shall be liable as prime obligor
for, and shall indemnify Wilmington Trust Company and the Owner Trustee and its
successors, assigns, agents and servants (each, an "Indemnified Party" and
collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against Wilmington Trust Company or the Owner Trustee or any Indemnified Party
in any way relating to or arising out of this Agreement, the other Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust Estate
or the action or inaction of the Owner Trustee hereunder; provided that the
Depositor shall not be liable for or required to indemnify an Indemnified Party
from and against Expenses arising or resulting from any of the matters described
in the third sentence of Section 7.1. The Depositor will in no event be entitled
to make any claim upon the Trust Property for the payment or reimbursement of
any Expenses. The indemnities contained in this Section 8.2 shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 8.2, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Depositor, which approval shall
not be unreasonably withheld.
Section 8.3 Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX - TERMINATION
Section 9.1 Termination of Trust Agreement. (a) This Agreement (other than
the provisions of Article VIII) and the Trust shall dissolve, wind-up and
terminate in accordance with Section 3808 of the Statutory Trust Statute and be
of no further force or effect (i) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement and Article V or (ii)
on the Payment Date next succeeding the month which is one year after the
maturity or other liquidation of the last Receivable and the disposition of any
amounts received upon liquidation of any property remaining in the Trust in
accordance with the terms and priorities set forth in the Indenture, the Sale
and Servicing Agreement and Article V. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not (x) operate to terminate
this Agreement or the Trust, 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) No 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
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,
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 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 Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders, amounts distributable on such Payment Date pursuant to
Section 5.2.
In the event that all of the Certificateholders shall not surrender their
Certificates, as the case may be, for cancellation within six months after the
date specified in the above mentioned written notice, the Owner Trustee shall
give a second written notice to the remaining Certificateholders to surrender
their Certificates, respectively, for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Certificates shall not have been surrendered for cancellation, the Owner
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders, as the case may be,
concerning surrender of their Certificates as the case may be, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable escheat laws, any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Statutory Trust Statute.
Section 9.2 Prepayment of the Certificates. (a) The Certificates shall be
prepaid in whole, but not in part, at the direction of the Servicer pursuant to
Section 9.1(a) of the Sale and Servicing Agreement, on any Payment Date on which
the Servicer exercises its option to purchase the assets of the Trust pursuant
to said Section 9.1(a), and the amount paid by the Servicer shall be treated as
collections of Receivables and applied to pay the unpaid principal amount of the
Notes plus accrued and unpaid interest thereon, together with the unpaid
principal amount of the Certificates. The Servicer shall furnish the Rating
Agencies and the Certificateholders notice of such prepayment. If the
Certificates are to be prepaid pursuant to this Section 9.2(a), the Servicer
shall furnish notice of such election to the Owner Trustee not later than 20
days prior to the Prepayment Date and the Trust shall deposit by 10:00 A.M. (New
York City time) on the Prepayment Date in the Certificate Distribution Account
the Prepayment Price of the Certificates to be prepaid, whereupon all such
Certificates shall be due and payable on the Prepayment Date.
(b) In addition, following payment in full of the Notes, the Holders of
100% of the Certificate Balance may agree to liquidate the Trust and prepay the
Certificates.
(c) Notice of prepayment under Section 9.2(a) shall be given by the Owner
Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted immediately following receipt of notice from the Trust or Servicer
pursuant to Section 9.2(a), but not later than 10 days prior to the applicable
Prepayment Date, to each Holder of Certificate as of the close of business on
the Record Date preceding the applicable Prepayment Date, at such Holder's
address or facsimile number appearing in the Certificate Register.
All notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to be surrendered for
payment of the Prepayment Price (which shall be the office or agency of the
Owner Trustee to be maintained as provided in Section 3.8).
Notice of prepayment of the Certificates shall be given by the Owner
Trustee in the name and at the expense of the Trust. Failure to give notice of
prepayment, or any defect therein, to any Holder of any Certificate shall not
impair or affect the validity of the prepayment of any other Certificate.
(d) The Certificates to be prepaid shall, following notice of prepayment as
required by Section 9.2(a), on the Prepayment Date be paid by the Trust at the
Prepayment Price and (unless the Trust shall default in the payment of the
Prepayment Price) no interest shall accrue on the Prepayment Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Prepayment Price. Following payment in full of the Prepayment
Price, this Agreement and the Trust shall terminate.
ARTICLE X - SUCCESSOR OWNER TRUSTEES
AND ADDITIONAL OWNER TRUSTEES
Section 10.1 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times (i) be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; (ii) be authorized to exercise corporate
trust powers; (iii) have a combined capital and surplus of at least $50,000,000
and shall be subject to supervision or examination by Federal or state
authorities; and (iv) shall have (or shall have a parent that has) a long-term
debt rating of investment grade by each of the Rating Agencies or be otherwise
acceptable to the Rating Agencies. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 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 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, at the expense of the Trust,
petition any court of competent jurisdiction for the appointment of a successor
Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 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 the Certificateholders, the
Indenture Trustee, the Noteholders and each of the Rating Agencies.
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 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 10.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
Any successor Owner Trustee appointed pursuant to this Section 10.3 shall
file an amendment to the Certificate of Trust reflecting the name and principal
place of business of such succession in the state of Delaware.
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, the Indenture Trustee, the Noteholders
and 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 Owner Trustee. Any corporation into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor to the Owner Trustee hereunder; provided
that such corporation shall be eligible pursuant to Section 10.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided
further, however, 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, 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 at any time 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 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:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
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 X. 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 as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Supplements and Amendments. (a) This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders, the Certificateholders
or the Swap Counterparty to: (i) cure any ambiguity, to revise, correct or
supplement any provisions herein, (ii) enable the Trust to avoid becoming a
member of MMCA's consolidated group under GAAP or (iii) enable the Transferor or
any Affiliate of the Transferor 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, however, that such action shall not (x)
adversely affect the rights or obligations of the Swap Counterparty under the
Interest Rate Swap Agreement or impair the ability of the Trust to fully perform
any of its obligations under the Interest Rate Swap Agreement, (y) as evidenced
by an Opinion of Counsel satisfactory to the Owner Trustee and the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder (unless each such Holder has consented thereto),
or (y) as evidenced by an Opinion of Counsel, (i) materially adversely affect
the Federal or any Applicable Tax State income or franchise taxation of any
outstanding Note or Certificate, or any Holder thereof or (ii) cause the Trust
to be taxable as a corporation for Federal or any Applicable Tax State income or
franchise tax purposes; provided, further, that no such amendment shall be
inconsistent with the derecognition by MMCA of the Receivables under GAAP or
cause the Trust to become a member of MMCA's consolidated group under GAAP.
(b) This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice of the substance of such
amendment to the Rating Agencies and the Indenture Trustee, with the consent of
(i) the Holders (as defined in the Indenture) of Notes evidencing not less than
a majority of the aggregate principal amount of the then outstanding Notes,
voting as a group and (ii) the Holders of Certificates evidencing not less than
a majority of the Certificate Balance and (iii) the Swap Counterparty (if any
Interest Rate Swap Agreements are then in effect) to the extent such amendment
adversely affects the rights or obligations of the Swap Counterparty or modifies
or impairs the ability of the Trust to fully perform any of its obligations
under the Interest Rate Swap Agreement, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of, or
change the allocation or priority of, collections of payments on Receivables or
distributions that are required to be made on any Note or Certificate, or change
any Note Interest Rate, or (ii) reduce the aforesaid percentage of the principal
amount of the then outstanding Notes and the Certificate Balance required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates affected thereby or (iii) adversely affect
the ratings of any Class of Notes by the Rating Agencies without the consent,
respectively, of holders of Notes evidencing not less than 66 2/3% of the
aggregate principal amount of the then outstanding Notes of such Class or (iv)
amend the activities of the Trust as permitted in Section 2.3; and provided
further that an Opinion of Counsel shall be furnished to the Indenture Trustee
and the Owner Trustee to the effect that such amendment (A) will not materially
adversely affect the Federal or any Applicable Tax State income or franchise
taxation of any outstanding Note or Certificate, or any Holder thereof and (B)
will not cause the Trust to be taxable as a corporation for Federal or any
Applicable Tax State income or franchise tax purposes. A Swap Counterparty's
consent will be deemed to have been given if the Swap Counterparty does not
object in writing within 10 Business Days of receipt of a written request for
such consent.
(c) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee, the Swap
Counterparty (to the extent the Interest Rate Swap Agreement is in effect) and
each of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders, the Swap Counterparty or the Indenture Trustee pursuant to this
Section 11.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) 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.
(g) Prior to the execution of any amendment to this Trust Agreement or any
amendment to any other agreement to which the Trust is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel, a copy of which will be sent to the Rating Agencies, to the effect that
such amendment is authorized or permitted by the Basic Documents and that all
conditions precedent in the Basic Documents for the execution and delivery
thereof by the Trust or the Owner Trustee, as the case may be, have been
satisfied.
Section 11.2 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 beneficial 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 Limitation on Rights of Others. The provisions of this
Agreement are solely for the benefit of the 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
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Owner
Trustee shall be deemed given only upon actual receipt by the Owner Trustee), if
to the Owner Trustee, addressed to the Corporate Trust Office; if to the
Depositor, addressed to MMCA Auto Receivables Trust II at the address of its
principal executive office first above written; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.5 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 of this Agreement or the Certificates, 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
Owner Trustee and their respective 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 Covenants of the Depositor. In the event that (a) the
principal balance of Receivables underlying the Certificates shall be reduced by
Realized Losses and (b) any litigation with claims in excess of $1,000,000 to
which the Depositor is a party which shall be reasonably likely to result in a
material judgment against the Depositor that the Depositor will not be able to
satisfy shall be commenced by a Certificateholder, during the period beginning
nine months following the commencement of such litigation and continuing until
such litigation is dismissed or otherwise terminated (and, if such litigation
has resulted in a final judgment against the Depositor, such judgment has been
satisfied), the Depositor shall not pay any dividend to MMCA, or make any
distribution on or in respect of its capital stock to MMCA, or repay the
principal amount of any indebtedness of the Depositor held by MMCA, unless (i)
after giving effect to such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual damages claimed in
such litigation or (ii) the Rating Agency Condition shall have been satisfied
with respect to any such payment, distribution or repayment. The Depositor will
not at any time institute against the Trust any bankruptcy proceedings under any
United States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
Section 11.9 No Petition; Subordination; Claims Against Depositor. The
Owner Trustee (not in its individual capacity but solely as Owner Trustee), by
entering into this Agreement, each Certificateholder, by accepting a
Certificate, and the Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that:
(a) they will not at any time institute against the Depositor or the Trust,
or join in 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, this Agreement or any of the other Basic Documents;
(b) any claim that they may have at any time against the Subtrust Assets of
any Subtrust unrelated to the Notes or the Certificates, and any claim that they
may have at any time against the Depositor that they may seek to enforce against
the Subtrust Assets of any Subtrust unrelated to the Notes or the Certificates,
shall be subordinate to the payment in full, including post-petition interest,
in the event that the Depositor becomes a debtor or debtor in possession in a
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other similar proceedings, of the
claims of the holders of any Securities related to such unrelated Subtrust and
the holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust; and
(c) they hereby irrevocably make the election afforded by Title 00 Xxxxxx
Xxxxxx Code Section 1111(b)(1)(A)(i) to secured creditors to receive the
treatment afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(2) with
respect to any secured claim that they may have at any time against the
Depositor. The obligations of the Depositor under this Agreement and the
Certificates are limited to the related Subtrust and the related Subtrust
Assets.
Section 11.10 No Recourse. 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 Owner
Trustee, the Indenture Trustee or any Affiliate thereof, and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Certificates, or the other Basic
Documents.
Section 11.11 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 11.12 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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.
MMCA AUTO RECEIVABLES TRUST II,
as Depositor
By:________________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Secretary & Treasurer
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:___________________________________________
Name:
Title:
Exhibit A
NUMBER $_____________
R-1
THIS CERTIFICATE
MAY NOT BE
TRANSFERRED BY A
STOCK POWER BUT
ONLY AS SET FORTH
BELOW.
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT C TO THE TRUST AGREEMENT REFERRED TO BELOW AND (B) THE RECEIPT BY THE
TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM
ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
SUBJECT TO THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH
EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT E TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT
AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS
AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED
STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING
CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR
(WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON).
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST
AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
MMCA AUTO OWNER TRUST 2002-5
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of retail installment sale contracts secured by
new and used automobiles and light-duty trucks sold from time to time to MMCA
Auto Receivables Trust II by Mitsubishi Motors Credit of America, Inc. and sold
by MMCA Auto Receivables Trust II from time to time to the Trust. The property
of the Trust (other than the Certificate Distribution Account and the proceeds
thereof) has been pledged to the Indenture Trustee pursuant to the Indenture to
secure the payment of the Notes issued thereunder.
(This Certificate does not represent an interest in or obligation of Mitsubishi
Motors Credit of America, Inc., MMCA Auto Receivables Trust II or any of their
respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT MMCA AUTO RECEIVABLES TRUST II is the
registered owner of a ____________________________ DOLLARS nonassessable, fully
paid, beneficial interest in Certificates of MMCA Auto Owner Trust 2002-5 (the
"Trust") formed by MMCA Auto Receivables Trust II, a Delaware statutory trust
(the "Depositor"). The Certificates have an aggregate Initial Certificate
Balance of
$_____________________.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated:______________
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity but or not in its individual capacity but
solely as Owner Trustee solely as Owner Trustee
By: _______________________ By: WILMINGTON TRUST COMPANY
Responsible Officer as Authenticating Agent
By: ________________________
Responsible Officer
The Trust was created pursuant to a Trust Agreement, dated as of September
10, 2002 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Trust Agreement"), by and between the Depositor and Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement or the Sale and Servicing Agreement,
dated as of December 1, 2002 (as amended, supplemented or otherwise modified and
in effect from time to time, the "Sale and Servicing Agreement"), by and among
the Trust, the Depositor, as seller (in such capacity, the "Seller"), and
Mitsubishi Motors Credit of America, Inc., as servicer (the "Servicer"), as
applicable.
This Certificate is one of the duly authorized Certificates designated as
"Asset Backed Certificates" (herein called the "Certificates"). 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. The
property of the Trust includes (i) a pool of retail installment sale contracts
for new and used automobiles and light-duty trucks and certain rights and
obligations thereunder (the "Receivables"), (ii) with respect to Actuarial
Receivables, monies due thereunder after the Cutoff Date (including Payaheads)
and, with respect to Simple Interest Receivables, monies received thereunder
after the Cutoff Date; (iii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of the
Trust in the Financed Vehicles; (iv) all rights to receive proceeds with respect
to the Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the Financed Vehicles or Obligors; (v)
all rights to receive proceeds with respect to the Receivables from recourse to
Dealers thereon pursuant to the Dealer Agreements; (vi) all of the Seller's
rights to the Receivable Files; (vii) the Trust Accounts and all amounts,
securities, financial assets, investments and other property deposited in or
credited to any of the foregoing and all proceeds thereof; (viii) all of the
rights under the Sale and Servicing Agreement and the Yield Supplement
Agreement, (ix) all of the rights under the Purchase Agreement, including the
right of the Seller to cause MMCA to repurchase Receivables from the Seller; (x)
all payments and proceeds with respect to the Receivables held by the Servicer;
(xi) all property (including the right to receive Liquidation Proceeds and
Recoveries and Financed Vehicles and the proceeds thereof acquired by the Trust
pursuant to the terms of the Final Payment Receivables), guarantees and other
collateral securing a Receivable (other than a Receivable repurchased by the
Servicer or purchased by the Seller); (xii) all rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; (xiii) the Issuer's rights under
the Interest Rate Swap Agreement; and (xiv) all present and future claims,
demands, causes of action and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing. The rights of the Trust in the foregoing property of the Trust (other
than the Certificate Distribution Account and the proceeds thereof) have been
pledged to the Indenture Trustee to secure the payment of the Notes and payments
to the Swap Counterparty pursuant to the Interest Rate Swap Agreement.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing [January 15, 2003], to the Person in whose
name this Certificate is registered at the close of business on the fourteenth
day of such calendar month (the "Record Date") such Certificateholder's
percentage interest in the amount to be distributed to Certificateholders on
such Payment Date; provided, however, that principal will be distributed to the
Certificateholders on each Payment Date (to the extent of funds remaining after
the Total Servicing Fee, all required payments on Notes and any required deposit
to the Reserve Account have been made on such Payment Date). Notwithstanding the
foregoing, following the occurrence and during the continuation of an Event of
Default under the Indenture which has resulted in an acceleration of the Notes
or following certain events of insolvency with respect to the Depositor, no
distributions of principal or interest will be made on the Certificates until
all the Notes have been paid in full.
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 and the Swap Counterparty as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement.
It is the intent of the Depositor, the Servicer and the Certificateholders
that, for purposes of Federal income, state and local income tax and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholders (including the Depositor) will be treated as partners in that
partnership. The Depositor and the other Certificateholders by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as partnership interests in
the Trust.
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 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
Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee or the Paying Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for the purpose by the Owner Trustee in Wilmington, Delaware.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
a Responsible 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, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
In WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: __________________________________________
Responsible Officer
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Servicer, the Administrator, the Owner Trustee or any Affiliates
of any of them and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein, in the Trust
Agreement or in the other Basic Documents. This Certificate has been executed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Trust, and in no event shall Wilmington Trust
Company in its individual capacity have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder,
as to all of which recourse shall be solely to the assets of the Trust. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Sale and Servicing Agreement. The Trust will
furnish, upon the request of any holder of a Certificate, such information as is
specified in paragraph (d)(4) of Rule 144A of the Securities Act with respect to
the Trust. A registration statement, which includes the Trust Agreement as an
exhibit thereto, has been filed with the Securities and Exchange Commission with
respect to the Notes of the Trust issued concurrently with this Certificate.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the Holders
of the Notes and the Holders of the Certificates each voting as a class
evidencing not less than a majority of the principal amount of the then
outstanding Notes and the Certificate Balance, respectively, and the consent of
the Swap Counterparty. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the registration of Transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Trust Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Swap Counterparty or the Holders of any of the Certificates.
This Certificate may be Transferred only under the circumstances described
in Section 3.4 of the Trust Agreement, which, among other things, requires that
each prospective transferee represent in writing in the form provided as an
exhibit to the Trust Agreement that it will not acquire or Transfer the
Certificates through an established securities market, is not and will not
become, except in certain circumstances, a partnership, Subchapter S corporation
or grantor trust for U.S. Federal income tax purposes, and will not acquire the
Certificates for or on behalf of an employee benefit plan, except in certain
limited circumstances. Any attempted Transfer in contravention of the
restrictions and conditions of Section 3.4 of the Trust Agreement shall be null
and void. As provided in the Trust Agreement, the Transfer of this Certificate
is registerable in the Certificate Register upon surrender of this Certificate
for registration of Transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in Wilmington, Delaware, accompanied
by the written representations required by the Trust Agreement and, if the
Depositor has consented to such transfer, a written instrument of transfer in
form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Trust Agreement is Wilmington
Trust Company.
Except for Certificates issued to the Depositor, the Certificates are
issuable only as registered Certificates without coupons in denominations of
$1,000,000 and in integral multiples of $1,000 in excess thereof. Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of Transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Noteholders, the
Swap Counterparty and the Certificateholders of all amounts required to be paid
to them pursuant to the Indenture, the Trust Agreement and the Sale and
Servicing Agreement and the Interest Rate Swap Agreement, and any remaining
assets of the Trust shall be distributed to the Depositor, in its capacity as
Depositor. The Servicer of the Receivables may at its option purchase the assets
of the Trust at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect early
retirement of the Notes and the Certificates; however, such right of purchase is
exercisable only as of the last day of any Collection Period as of which the
Pool Balance is less than or equal to 10% of the aggregate Principal Balance of
the Receivables as of the respective Cutoff Dates for the Receivables.
The Holder of this Certificate, by acceptance of this Certificate,
covenants and agrees by accepting the benefits of the Trust Agreement that any
claim that such Holder may have at any time against the Subtrust Assets of any
Subtrust unrelated to the Certificates, and any claim that such Holder may have
against the Depositor that such Holder may seek to enforce against the Subtrust
Assets of any Subtrust unrelated to the Certificates, shall be subordinate to
the payment in full, including post-petition interest, in the event that the
Depositor becomes a debtor or debtor in possession in a case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Depositor represented by this
Certificate are limited to the related Subtrust and the related Subtrust Assets.
EACH HOLDER, BY ACCEPTANCE OF A CERTIFICATE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH HOLDER MAY
HAVE AT ANY TIME AGAINST THE DEPOSITOR.
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:
___________________________________________________*/
Signature Guaranteed:
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
Exhibit B
[Form of Certificate of Trust]
CERTIFICATE OF TRUST OF
MMCA AUTO OWNER TRUST 2002-5
This Certificate of Trust of MMCA AUTO OWNER TRUST 2002-5 (the "Trust") is
being duly executed and filed by the Undersigned as trustee, to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. Code, Section 3801 et
seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is MMCA AUTO OWNER
TRUST 2002-5.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811 of the
Act.
WILMINGTON TRUST COMPANY,
as trustee
By: ____________________________________
Name:
Title:
Exhibit C
[Form of Rule 144A Transferor Certificate]
[Date]
Wilmington Trust Company
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in denomination of Asset
Backed Certificates (the "Certificates") of MMCA Auto Owner Trust 2002-5 (the
"Trust").
The undersigned is the holder of the Certificates and with this notice
hereby deposits with the Owner Trustee $ [*] in denomination of Certificates and
requests that Certificates in the same aggregate denomination be issued,
executed and authenticated and registered to the purchaser on , , as specified
in the Amended and Restated Trust Agreement dated as of December 1, 2002
relating to the Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
--------
[* minimum of $1,000,000]
The undersigned represents and warrants that the undersigned (i) reasonably
believes the purchaser is a "qualified institutional buyer," as defined in Rule
144A under the Securities Act of 1933 (the "Act"), (ii) such purchaser has
acquired the Certificates in a transaction effected in accordance with the
exemption from the registration requirements of the Act provided by Rule 144A
and, (iii) if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, (A) each such account is
a qualified institutional buyer and (B) the purchaser is acquiring Certificates
for its own account or for one or more institutional accounts for which it is
acting as fiduciary or agent in a minimum amount equivalent to at least
$1,000,000 for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By: __________________________________________
Name:
Title:
Exhibit D
[Form of Investment Letter - Qualified Institutional Buyer]
[Date]
MMCA Auto Owner Trust 2002-5,
as Issuer
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Asset Backed Certificates
(the "Certificates") of MMCA Auto Owner Trust 2002-5 (the "Trust"), a trust
formed by MMCA Auto Receivables Trust II (the "Depositor" or "Seller"), we
confirm that:
1. We agree to be bound by the restrictions and conditions set forth in the
Amended and Restated Trust Agreement dated as of December 1, 2002 (the "Trust
Agreement") relating to the Certificates and we agree to be bound by, and not to
resell, transfer, assign, participate, pledge, or otherwise dispose of (any such
act, a "Transfer") the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We have neither acquired nor will we Transfer any Certificate we
purchase (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
3. We either (a) are not, and will not become, a partnership, Subchapter S
corporation, or grantor trust for U.S. Federal income tax purposes or (b) are
such an entity, but none of the direct or indirect beneficial owners of any of
the interests in us have allowed or caused, or will allow or cause, 80% or more
(or such other percentage as the Seller may establish prior to the time of such
proposed Transfer) of the value of such interests to be attributable to our
ownership of Certificates.
4. We understand that no subsequent Transfer of the Certificates is
permitted unless (i) such Transfer is of a Certificate with a denomination of at
least $1,000,000 and (ii) the Depositor consents in writing (which consent may
be withheld for any reason or for no reason) to the proposed Transfer; provided,
however, that no such consent shall be required where the proposed transferee
is, and at the time of the Transfer will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the Trust is not a
publicly traded partnership taxable as a corporation is dependent in part on the
accuracy of the representations in paragraphs 2, 3 and 4.
6. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the Certificates
for our own account or for the account of a QIB for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act, and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificates, and we and any accounts for which
we are acting are each able to bear the economic risk of our or their
investment. We acknowledge that the sale of the Certificates to us is being made
in reliance on Rule 144A.
7. We are acquiring each of the Certificates purchased by us for our own
account or for a single account (which is a QIB and from which no resale,
pledge, or other transfer may be made) as to which we exercise sole investment
discretion.
8. We are not (A) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that
is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of
the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject
to any Federal, state or local law which is, to a material extent, similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of Labor Regulation
29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such
plan (excluding, for purposes of this clause (E), any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a person who is either (A) (i) a citizen or resident of the
United States, (ii) a corporation, partnership or other entity organized in or
under the laws of the United States or any political subdivision thereof or
(iii) a person not described in (i) or (ii) whose ownership of the Certificates
is effectively connected with such person's conduct of a trade or business
within the United States (within the meaning of the Code) and who provides the
Depositor and the Trust an IRS Form W-8ECI (and such other certifications,
representations or opinions of counsel as may be requested by the Depositor or
the Trust) or (B) an estate or trust the income of which is includible in gross
income for United States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any Certificate (or any
interest therein) in contravention of the restrictions and conditions (including
any violation of the representation in paragraph 3 by an investor who continues
to hold such Certificates occurring any time after the Transfer in which it
acquired such Certificates) in paragraphs 1 through 9 above shall be null and
void (each, a "Void Transfer"), and the purported transferee in a Void Transfer
shall not be recognized by the Trust or any other person as a Certificateholder
for any purpose.
11. We agree that if we determine to Transfer any of the Certificates we
will cause our proposed transferee to provide to the Trust and the Certificate
Registrar a letter substantially in the form of this Exhibit D or Exhibit E to
the Trust Agreement, as applicable.
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:
Securities To Be Purchased:
$ principal balance of Certificates
Exhibit E
[Form of Investment Letter - Institutional Accredited Investor]
[Date]
MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Asset Backed Certificates
(the "Certificates") of MMCA Auto Owner Trust 2002-5 (the "Trust"), a trust
formed by MMCA Auto Receivables Trust II (the "Depositor" or "Seller"), we
confirm that:
1. We agree to be bound by the restrictions and conditions set forth in the
Amended and Restated Trust Agreement dated as of December 1, 2002 (the "Trust
Agreement") relating to the Certificates and we agree to be bound by, and not to
resell, transfer, assign, participate, pledge, or otherwise dispose of (any such
act, a "Transfer") the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We have neither acquired nor will we Transfer any Certificate we
purchase (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
3. We either (a) are not, and will not become, a partnership, Subchapter S
corporation, or grantor trust for U.S. Federal income tax purposes or (b) are
such an entity, but none of the direct or indirect beneficial owners of any of
the interests in us have allowed or caused, or will allow or cause, 80% or more
(or such other percentage as the Depositor may establish prior to the time of
such proposed Transfer) of the value of such interests to be attributable to our
ownership of Certificates.
4. We understand that no subsequent Transfer of the Certificates is
permitted unless (i) such Transfer is of a Certificate with a denomination of at
least $1,000,000 and (ii) the Depositor consents in writing (which consent may
be withheld for any reason or for no reason) to the proposed Transfer; provided,
however, that no such consent shall be required where the proposed transferee
is, and at the time of the Transfer will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the Trust is not a
publicly traded partnership taxable as a corporation is dependent in part on the
accuracy of the representations in paragraphs 2, 3 and 4 and that in addition to
being subject to having its purchase rescinded, it will be liable for damages.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act,
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment.
7. We are acquiring each of the Certificates purchased by us for our own
account or for a single account (each of which is an institutional "accredited
investor" and from which no resale, pledge or other transfer may be made) as to
which we exercise sole investment discretion.
8. We are not (A) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that
is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of
the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject
to any Federal, state or local law which is, to a material extent, similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of Labor Regulation
29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such
plan (excluding, for purposes of this clause (E), any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a person who is either (A) (i) a citizen or resident of the
United States, (ii) a corporation, partnership or other entity organized in or
under the laws of the United States or any political subdivision thereof or
(iii) a person not described in (i) or (ii) whose ownership of the Certificates
is effectively connected with such person's conduct of a trade or business
within the United States (within the meaning of the Code) and who provides the
Depositor and the Trust an IRS Form W-8ECI (and such other certifications,
representations or opinions of counsel as may be requested by the Depositor or
the Trust) or (B) an estate or trust the income of which is includible in gross
income for United States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any Certificate (or any
interest therein) in contravention of the restrictions and conditions (including
any violation of the representation in paragraph 3 by an investor who continues
to hold such Certificates occurring any time after the Transfer in which it
acquired such Certificates) in paragraphs 1 through 9 above shall be null and
void (each, a "Void Transfer"), and the purported transferee in a Void Transfer
shall not be recognized by the Trust or any other person as a Certificateholder
for any purpose.
11. We agree that if we determine to Transfer any of the Certificates, we
will cause our proposed transferee to provide to the Trust and the Certificate
Registrar a letter substantially in the form of this Exhibit F or Exhibit E to
the Trust Agreement, as applicable.
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:
