Exhibit 4.1
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AMENDED AND RESTATED
TRUST AGREEMENT
between
MMCA AUTO RECEIVABLES, INC.,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of August 1, 1998
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS............................................1
SECTION 1.1. Capitalized Terms..................................................1
SECTION 1.2. Other Definitional Provisions......................................4
ARTICLE II
ORGANIZATION OF THE TRUST.....................................6
SECTION 2.1. Name...............................................................6
SECTION 2.2. Office.............................................................6
SECTION 2.3. Purposes and Powers................................................6
SECTION 2.4. Appointment of Owner Trustee. .....................................7
SECTION 2.5. Initial Capital Contribution of Owner Trust Estate.................7
SECTION 2.6. Declaration of Trust...............................................7
SECTION 2.7. [Reserved.]........................................................8
SECTION 2.8. Title to Trust Property............................................8
SECTION 2.9. Situs of Trust.....................................................8
SECTION 2.10 Representations and Warranties of the Depositor....................8
SECTION 2.11 Federal Income Tax Matters.........................................9
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS...........................11
SECTION 3.1. Initial Ownership.................................................11
SECTION 3.2. The Certificates..................................................11
SECTION 3.3. Authentication of Certificates....................................12
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates......................................................12
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.................18
SECTION 3.6. Persons Deemed Owners of Certificate..............................19
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses.........................................................19
SECTION 3.8. Maintenance of Office or Agency...................................19
SECTION 3.9. Appointment of Paying Agent.......................................20
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE.....................................21
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters...................................................21
SECTION 4.2. Action by Certificateholders with Respect to
Certain Matters...................................................22
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy........................................................22
SECTION 4.4. Restrictions on Certificateholders' Power.........................22
SECTION 4.5. Majority Control..................................................22
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES............................23
SECTION 5.1. Establishment of Certificate Distribution Account.................23
SECTION 5.2. Application of Trust Funds........................................23
SECTION 5.3. Method of Payment.................................................24
SECTION 5.4. No Segregation of Monies; No Interest.............................24
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service
and Others........................................................24
SECTION 5.6. Signature on Returns; Tax Matters Partner.........................25
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE..............................26
SECTION 6.1. General Authority.................................................26
SECTION 6.2. General Duties....................................................26
SECTION 6.3. Action upon Instruction...........................................26
SECTION 6.4. No Duties Except as Specified in this Agreement
or in Instructions................................................28
SECTION 6.5. No Action Except Under Specified Documents or
Instructions......................................................28
SECTION 6.6. Restrictions......................................................28
ARTICLE VII
REGARDING THE OWNER TRUSTEE...................................29
SECTION 7.1. Acceptance of Trusts and Duties...................................29
SECTION 7.2. Furnishing of Documents...........................................30
SECTION 7.3. Representations and Warranties....................................30
SECTION 7.4. Reliance; Advice of Counsel.......................................31
SECTION 7.5. Not Acting in Individual Capacity.................................32
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SECTION 7.6. Owner Trustee Not Liable for Certificates or
Receivables.......................................................32
SECTION 7.7. Owner Trustee May Own Certificates and Notes......................32
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE..................................34
SECTION 8.1. Owner Trustee's Fees and Expenses.................................34
SECTION 8.2. Indemnification...................................................34
SECTION 8.3. Payments to the Owner Trustee.....................................34
ARTICLE IX
TERMINATION...........................................35
SECTION 9.1. Termination of Trust Agreement....................................35
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor......................36
SECTION 9.3. Prepayment of the Certificates....................................36
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...............39
SECTION 10.1. Eligibility Requirements for Owner Trustee.......................39
SECTION 10.2. Resignation or Removal of Owner Trustee..........................39
SECTION 10.3. Successor Owner Trustee..........................................40
SECTION 10.4. Merger or Consolidation of Owner Trustee.........................41
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee....................41
ARTICLE XI
MISCELLANEOUS.........................................43
SECTION 11.1. Supplements and Amendments.......................................43
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders...............................................44
SECTION 11.3. Limitation on Rights of Others...................................45
SECTION 11.4. Notices..........................................................45
SECTION 11.5. Severability.....................................................45
SECTION 11.6. Separate Counterparts............................................45
SECTION 11.7. Successors and Assigns...........................................46
SECTION 11.8. Covenants of the Depositor.......................................46
SECTION 11.9. No Petition......................................................46
SECTION 11.10. No Recourse......................................................47
SECTION 11.11. Headings.........................................................47
SECTION 11.12. Governing Law....................................................47
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EXHIBITS
EXHIBIT A Form of Certificate
EXHIBIT B [Reserved]
EXHIBIT C Form of Certificate of Trust
EXHIBIT D Form of Rule 144A Transferor
Certificate
EXHIBIT E Form of Investment Letter --
Qualified Institutional Buyer
EXHIBIT F Form of Investment Letter --
Institutional Accredited Investor
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 1, 1998 (as
the same may be further amended, supplemented or otherwise modified and in
effect from time to time, this "Agreement"), between MMCA AUTO RECEIVABLES,
INC., a Delaware corporation, 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 July 9, 1998 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
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Agreement" shall have the meaning specified in the recitals hereto.
"Basic Documents" shall mean this Agreement, the Purchase Agreement,
the Sale and Servicing Agreement, the Indenture, the Yield Supplement Agreement,
the Note Depository Agreement, the Administration Agreement and the other
documents and certificates delivered in connection therewith.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Certificate" shall mean a physical certificate evidencing the
beneficial interest of a Certificateholder in the property of the Trust,
substantially in the form of Exhibit A attached hereto. Such certificate shall
entitle the Holder thereof to distributions pursuant to this Agreement from
collections and other proceeds in respect of the Owner Trust Estate; provided,
however, that the Owner Trust Estate has been pledged to the Indenture Trustee
to secure payment of the Notes and that the rights of Certificateholders to
receive distributions on the Certificates are subordinated to the rights of the
Noteholders as described in the Sale and Servicing Agreement and the Indenture.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit C filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder" shall mean a Holder of a Certificate.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000;
or at such other address as the Owner Trustee may designate by notice to the
Certificateholders and the Depositor, or the principal corporate trust office of
any successor Owner Trustee (the address of which the successor Owner Trustee
will notify the Certificateholders and the Company).
"Depositor" shall mean MMCA Auto Receivables, Inc., a Delaware
corporation.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" shall mean a Person in whose name a Certificate is registered
in the Certificate Register.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Indenture" shall mean the Indenture, dated as of August 1, 1998,
between the Trust and Bank of Tokyo - Mitsubishi Trust Company, a New York
banking corporation, as indenture trustee, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Initial Certificate Balance" shall mean $[ ].
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9 and shall initially be Wilmington Trust
Company.
"Prepayment Date" shall mean the Payment Date specified by the
Servicer pursuant to Section 9.3(a).
"Prepayment Price" means an amount equal to the Certificate Balance.
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"Qualified Institutional Buyer" has the meaning specified in Rule
144A.
"Record Date" shall mean, with respect to any Payment Date, the close
of business on the fourteenth day of the calendar month in which such Payment
Date occurs.
"Rule 144A" shall have the meaning assigned to such term in Section
3.4(c).
"Rule 144A Information" shall have the meaning assigned to such term
in Section 3.4(e).
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of August 1, 1998, by and among the Trust, the Depositor, as
seller, and MMCA, as servicer, as the same may be amended, supplemented or
otherwise modified and in effect from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Transfer" shall have the meaning assigned to such term in Section
3.2.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Void Transfer" shall have the meaning assigned to such term in
Section 3.2.
SECTION 1.2. Other Definitional Provisions.
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(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Indenture.
(b) All terms in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
documents made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder", and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust created hereby shall be known as "MMCA
Auto Owner Trust 1998-1", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and 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 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;
(ii) 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;
(iii) to pay interest on and principal of the Notes and distributions
on the Certificates.
(iv) 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;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
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(vi) 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
(vii) 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.
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
Business Trust Statute.
SECTION 2.5. Initial Capital Contribution of Owner Trust Estate. As of
July 9, 1998, 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 business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business 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 non-entity and if has more than one beneficial owner, as
a partnership, with the assets of the partnership being the Receivables and
other assets held by the Trust, the partners of the partnership being the
Certificateholders and the Notes constituting indebtedness of the partnership.
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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 Business 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 of Delaware.
SECTION 2.7. [Reserved.]
SECTION 2.8. 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 2.9. 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 2.10. 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
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
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(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 articles of
incorporation or by-laws 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 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent of
the
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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 Treas. Reg. 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 and with respect to which the Depositor has received an
opinion of counsel that the Trust will be characterized as a "nonentity" under
Treas. Reg. Section 301.7701-3 for Federal, state and all other income tax
purposes,
(a) amounts paid to the Depositor pursuant to Section 4.7(a) 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) shall be treated as a guaranteed payment within the meaning of
Section 707(c) of the Code;
(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.
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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 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 an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the 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.
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SECTION 3.3. Authentication of Certificates. Concurrently with the
initial 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 chairman of the board, its president, any executive
vice president, any vice president, its secretary or its treasurer, 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 of 1933, as amended (the "1933 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 1933 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
1933 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
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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 (other than the Retained 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 D 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 E 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)
13
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 F 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.
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(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 C.F.R. Section 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 4224 (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.
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(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
E or F 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 under the Securities Act 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 D and (y) the transferee executes and delivers to
the Trust and the Certificate Registrar an investment letter
substantially in the form attached as Exhibit E.
(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; and
16
(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 F.
(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.
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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 4224 or W-9 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
Treas. Reg. Sections 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 fifteen (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 of 1933,
as amended, the Securities Act of 1934, as amended applicable state securities
law or the Investment Company Act; 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
18
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 , as the case may be,
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 fifteen (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 (5) 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
19
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
thirty (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.
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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 thirty (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 Business
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the 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
21
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.
22
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.
Pursuant to Section 4.1(c) 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 at 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) Amounts, if any, distributed to the Depositor pursuant to Section
4.7(a) and clause (i) of the fourth paragraph of Section 5.1(a) of the Sale and
Servicing Agreement shall be deemed to be distributions on the Retained
Certificates.
(c) 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.
(d) 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
23
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 (5) 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.
24
SECTION 5.5. Accounting and Reports to the Noteholders,
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(d) 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 November 17, 1997, 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 Internal Revenue
Code of 1986, as amended. 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.
25
(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.
26
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
and $[ ] in aggregate principal amount of Class B 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 is
required in the Administration Agreement 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 to carry out its obligations under the
Administration Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and
in accordance with the terms of the Basic Documents, the Certificateholders
27
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 ten (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 ten (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
28
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. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the other Basic
Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of 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
29
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.
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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 by a responsible officer 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 funds or otherwise incur any
financial liability in the performance of any of its rights or powers
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 liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or 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
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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 or the
Indenture Trustee under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the 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:
32
(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
by-laws 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
33
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, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or 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.
34
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.
35
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 (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.
36
ARTICLE IX
TERMINATION
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than the provisions of Article VIII) and the Trust shall terminate 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)
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. 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
(5) 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 addition, upon the presentation and surrender of the Retained
Certificate issued by the Depositor pursuant to a termination in accordance with
Section
37
9.1(a)(i), the Owner Trustee shall distribute any remaining assets of the Trust
(after giving effect to any distributions made pursuant to the preceding
sentence) to the Depositor, in its capacities as Depositor and as Holder of such
Certificate.
In the event that all of the Certificateholders shall not surrender
their Certificates, as the case may be, for cancellation within six (6) 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 Business Trust Statute.
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor. Promptly
after the occurrence of any Insolvency Event with respect to the Depositor, (A)
the Depositor shall give the Indenture Trustee and the Owner Trustee written
notice of such Insolvency Event, (B) the Owner Trustee shall, upon the receipt
of such written notice from the Depositor, give prompt written notice to the
Certificateholders, holders of interests, if any, in the Reserve Account and the
Indenture Trustee, of the occurrence of such event and (C) the Indenture Trustee
shall, upon receipt of written notice of such Insolvency Event from the Owner
Trustee or the Depositor, give prompt written notice to the Noteholders of the
occurrence of such event;
SECTION 9.3. 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
38
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 9.3(a), the Servicer shall furnish notice of
such election to the Owner Trustee not later than twenty (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 Certificate 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 9.3(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 9.3(a), but not later than ten (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.
39
(d) The Certificates to be prepaid shall, following notice of
prepayment as required by Section 9.3(b), 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.
40
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 Business 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 thirty (30) days after the giving of such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 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
41
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
42
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 ten (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 of 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 fifteen (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:
43
(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.
44
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 or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement inconsistent with any other provision of this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement; provided,
however, that such action shall not, 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 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.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders (as defined in the Indenture) of Notes
evidencing not less than 51% of the aggregate principal amount of the then
outstanding Notes, voting as a group, and the consent of the Holders of
Certificates evidencing not less than 51% of the Certificate Balance, 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; and provided further that an Opinion of Counsel
shall be
45
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.
(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 and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders 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 Issuer is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Basic Documents and that all conditions precedent in the Basic Documents for the
execution and delivery thereof by the Issuer 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
46
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. Except for Section 2.7,
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 (other than Section 2.7), 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, Inc. 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
47
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 its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. 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 (9) 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. 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 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
48
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 11.10. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificates, as the
case may be, 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.
49
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
MMCA AUTO RECEIVABLES, INC.,
as Depositor
By:
-----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
-----------------------------
Name:
Title:
50
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 D 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 E 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
A-1
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 F 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.
A-2
MMCA AUTO OWNER TRUST 1998-1
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of retail installment sales contracts secured by
new and used automobiles and light- or medium-duty trucks sold to MMCA Auto
Receivables, Inc. by Mitsubishi Motors Credit of America, Inc. and sold by MMCA
Auto Receivables, Inc. 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, Inc. or any of their
respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT MMCA AUTO RECEIVABLES, INC. is the registered
owner of a [ ] nonassessable, fully-paid, beneficial interest in Certificates of
MMCA Auto Owner Trust 1998-1 (the "Trust") formed by MMCA Auto Receivables,
Inc., a Delaware corporation (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: August , 1998
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
as Owner Trustee or as Owner Trustee
By: By: WILMINGTON TRUST COMPANY
---------------------
Authorized Officer as Authenticating Agent
By:
------------------------
Authorized Officer
A-3
The Trust was created pursuant to an Amended and Restated Trust
Agreement, dated as of August 1, 1998 (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 August 1, 1998 (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
sales contracts for new and used automobiles and light- or medium-duty trucks
and certain rights and obligations thereunder (the "Receivables"), (ii) with
respect to Actuarial Receivables, monies due thereunder on or after the Cutoff
Date (including Payaheads) and, with respect to Simple Interest Receivables,
monies due or received thereunder on or 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)
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) 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, the Certificate Distribution Account, the Reserve Account, the
Supplemental Reserve Account and the Yield Supplement Account and all amounts,
securities, investments in financial assets and other property deposited in or
credited to any of the foregoing and all proceeds thereof; (viii) all of the
Seller's rights under the Yield Supplement Agreement and the Purchase Agreement,
including the right of the Seller to cause MMCA to repurchase Receivables from
the Seller; (ix) payments and proceeds with respect to the Receivables held by
the Servicer; (x) 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); (xi) rebates of premiums and other
A-4
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; and (xii) 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.
Under the Trust Agreement, there will be distributed on the fifteenth
day of each month or, if such fifteenth day is not a Business Day, the next
Business Day (each, a "Payment Date"), commencing September 15, 1998, 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 and the Supplemental 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 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
A-5
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 an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the
State of Delaware, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
A-6
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 1998-1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Owner Trustee
By:
---------------------------------
Authorized Officer
A-7
[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. 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 of 1933, as amended 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. 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 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
A-8
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 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 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 Initial Pool Balance.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said
----------------------------------------------Certificate on the books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:
*/
-------------------------------
Signature Guaranteed:
*/
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration,
A-10
enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-11
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
MMCA AUTO OWNER TRUST 1998-1
----------------------------
This Certificate of Trust of MMCA AUTO OWNER TRUST 1998-1 (the
"Trust") is being duly executed and filed by the Undersigned as trustee, to form
a business trust under the Delaware Business Trust Act (12 Del. Code, Section
3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MMCA AUTO
OWNER TRUST 1998-1.
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:
C-1
EXHIBIT D
[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 1998-1
(the "Issuer").
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 August 1, 1998 relating to the Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
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
----------------------------
[(*) minimum of $1,000,000]
D-1
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:
D-2
EXHIBIT E
[FORM OF INVESTMENT LETTER --
QUALIFIED INSTITUTIONAL BUYER]
[Date]
MMCA Auto Owner Trust 1997-1
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 1998-1 (the
"Issuer"), a trust formed by MMCA Auto Receivables, Inc. (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 August 1, 1998 (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.
E-1
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 Issuer 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 Internal Revenue Code of 1986, as amended (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. Section 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).
E-2
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 Issuer an IRS Form 4224 (and such other certifications,
representations or opinions of counsel as may be requested by the Depositor or
the Issuer) 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 Issuer 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 Issuer and the
Certificate Registrar a letter substantially in the form of this Exhibit F or
Exhibit G 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
E-3
EXHIBIT F
[FORM OF INVESTMENT LETTER --
INSTITUTIONAL ACCREDITED INVESTOR]
[Date]
MMCA Auto Owner Trust 1998-1
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 1998 (the "Issuer"),
a trust formed by MMCA Auto Receivables, Inc. (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 August 1, 1998 (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.
F-1
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 Issuer 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 Internal Revenue Code of 1986, as amended (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. Section
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 Issuer an IRS Form 4224 (and such other certifications,
representations or opinions of counsel as may be requested
F-2
by the Depositor or the Issuer) 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 Issuer 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 Issuer 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:
F-3
