Exhibit 4.1
===============================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
MMCA AUTO RECEIVABLES TRUST II,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of October 1, 2002
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS...........................................................................................1
ARTICLE II - ORGANIZATION OF THE TRUST............................................................................1
Section 2.1 Name....................................................................................1
Section 2.2 Office..................................................................................1
Section 2.3 Purposes and Powers.....................................................................1
Section 2.4 Appointment of Owner Trustee............................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate......................................2
Section 2.6 Declaration of Trust....................................................................2
Section 2.7 Title to Trust Property.................................................................3
Section 2.8 Situs of Trust..........................................................................3
Section 2.9 Representations and Warranties of the Depositor.........................................3
Section 2.10 Federal Income Tax Matters..............................................................4
Section 2.11 Characterization of the Trust...........................................................4
ARTICLE III - TRUST CERTIFICATES AND TRANSFER OF INTERESTS........................................................5
Section 3.1 Initial Ownership.......................................................................5
Section 3.2 The Certificates........................................................................5
Section 3.3 Authentication of Certificates..........................................................5
Section 3.4 Registration of Certificates; Transfer and Exchange of
Certificates...........................................................................5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates......................................10
Section 3.6 Persons Deemed Owners of Certificates..................................................10
Section 3.7 Access to List of Certificateholders' Names and Addresses..............................10
Section 3.8 Maintenance of Office or Agency........................................................11
Section 3.9 Appointment of Paying Agent............................................................11
ARTICLE IV - ACTIONS BY OWNER TRUSTEE............................................................................11
Section 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters...............................................................................11
Section 4.2 Action by Certificateholders with Respect to Certain Matters...........................12
Section 4.3 Action by Certificateholders with Respect to Bankruptcy................................12
Section 4.4 Restrictions on Certificateholders' Power..............................................12
Section 4.5 Majority Control.......................................................................12
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...........................................................13
Section 5.1 Establishment of Certificate Distribution Account......................................13
Section 5.2 Application of Trust Funds.............................................................13
Section 5.3 Method of Payment......................................................................13
Section 5.4 No Segregation of Monies; No Interest..................................................14
Section 5.5 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others............................................................14
Section 5.6 Signature on Returns; Tax Matters Partner..............................................14
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE...............................................................15
Section 6.1 General Authority......................................................................15
Section 6.2 General Duties.........................................................................15
Section 6.3 Action upon Instruction................................................................15
Section 6.4 No Duties Except as Specified in this Agreement or in
Instructions..........................................................................16
Section 6.5 Restrictions...........................................................................16
ARTICLE VII - REGARDING THE OWNER TRUSTEE........................................................................17
Section 7.1 Acceptance of Trusts and Duties........................................................17
Section 7.2 Furnishing of Documents................................................................18
Section 7.3 Representations and Warranties.........................................................18
Section 7.4 Reliance; Advice of Counsel............................................................18
Section 7.5 Not Acting in Individual Capacity......................................................19
Section 7.6 Owner Trustee Not Liable for Certificates or Receivables...............................19
Section 7.7 Owner Trustee May Own Certificates and Notes...........................................19
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE.....................................................................19
Section 8.1 Owner Trustee's Fees and Expenses......................................................19
Section 8.2 Indemnification........................................................................19
Section 8.3 Payments to the Owner Trustee..........................................................20
ARTICLE IX - TERMINATION.........................................................................................20
Section 9.1 Termination of Trust Agreement.........................................................20
Section 9.2 Prepayment of the Certificates.........................................................21
ARTICLE X - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...............................................22
Section 10.1 Eligibility Requirements for Owner Trustee.............................................22
Section 10.2 Resignation or Removal of Owner Trustee................................................22
Section 10.3 Successor Owner Trustee................................................................23
Section 10.4 Merger or Consolidation of Owner Trustee...............................................23
Section 10.5 Appointment of Co-Trustee or Separate Trustee..........................................23
ARTICLE XI - MISCELLANEOUS.......................................................................................24
Section 11.1 Supplements and Amendments.............................................................24
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders.............................26
Section 11.3 Limitation on Rights of Others.........................................................26
Section 11.4 Notices................................................................................26
Section 11.5 Severability...........................................................................26
Section 11.6 Separate Counterparts..................................................................26
Section 11.7 Successors and Assigns.................................................................26
Section 11.8 Covenants of the Depositor.............................................................27
Section 11.9 No Petition; Subordination; Claims Against Depositor...................................27
Section 11.10 No Recourse............................................................................27
Section 11.11 Headings...............................................................................28
Section 11.12 Governing Law..........................................................................28
EXHIBITS
Form of Certificate ......................................................................................Exhibit A
Form of Certificate of Trust .............................................................................Exhibit B
Form of Rule 144A Transferor Certificate .................................................................Exhibit C
Form of Investment Letter - Qualified Institutional Buyer ................................................Exhibit D
Form of Investment Letter - Institutional Accredited Investor ............................................Exhibit E
AMENDED AND RESTATED TRUST AGREEMENT, dated as of October
1, 2002 (as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, this "Agreement"), between MMCA
AUTO RECEIVABLES TRUST II, a Delaware statutory trust, as depositor (the
"Depositor"), having its principal executive office at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000-0000; and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee under this agreement (in such capacity,
together with any successor or permitted assign, the "Owner Trustee"),
having its principal corporate trust office at Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
WHEREAS, the parties hereto intend to amend and restate
that certain Trust Agreement, dated as of August 20, 2002 between the
Depositor and the Owner Trustee, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I - DEFINITIONS
Except as otherwise specified herein or as the context
may otherwise require, capitalized terms used but not otherwise defined
herein are defined in Appendix A to the Indenture (the "Indenture"), dated
as of October 1, 2002, between the Trust, as issuer, and Bank of
Tokyo-Mitsubishi Trust Company, as indenture trustee (the "Indenture
Trustee"), which also contains rules as to usage that shall be applicable
herein.
ARTICLE II - ORGANIZATION OF THE TRUST
Section 2.1 Name. The Trust created hereby shall be known
as "MMCA Auto Owner Trust 2002-4," in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.2 Office. The office of the Trust shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other
address in the State of Delaware as the Owner Trustee may designate by
written notice to the Certificateholders and the Depositor.
Section 2.3 Purposes and Powers. (a) The purpose of the
Trust is, and the Trust shall have the power and authority, to engage
solely in the following activities:
(i) to acquire and hold the assets of MART II,
including the Receivables, and the proceeds of those assets;
(ii) to issue the Notes pursuant to the
Indenture, and the Certificates pursuant to this Agreement, and to
sell the Notes upon the written order of the Depositor;
(iii) to enter into and perform its obligations
under any interest rate protection agreement or agreements between
the Trust and one or more counterparties, including any
confirmations evidencing the transactions thereunder, each of
which is an interest rate swap, an interest rate cap, an
obligation to enter into any of the foregoing, or any combination
of any of the foregoing;
(iv) with the proceeds of the sale of the Notes
to fund the Reserve Account, the Pre-Funding Account, the Negative
Carry Account and the Yield Supplement Account, to pay the
organizational, start-up and transactional expenses of the Trust,
and to pay the balance to the Depositor pursuant to the Sale and
Servicing Agreement;
(v) to pay interest on and principal of the
Notes and distributions on the Certificates;
(vi) to assign, grant, transfer, pledge,
mortgage and convey the Owner Trust Estate (other than the
Certificate Distribution Account and the proceeds thereof) to the
Indenture Trustee pursuant to the Indenture;
(vii) to enter into and perform its obligations
under the Basic Documents to which it is to be a party;
(viii) to engage in those activities, including
entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto
or connected therewith; and
(ix) subject to compliance with the Basic
Documents, to engage in such other activities as may be required
in connection with conservation of the Owner Trust Estate and the
making of distributions to the Noteholders and the
Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents. In addition, notwithstanding
anything to the contrary herein or in any other Basic Document, the Trust
shall not take any action (i) inconsistent with the derecognition of the
Receivables under GAAP or (ii) that would cause the Trust to become a
member of MMCA's consolidated group under GAAP.
Section 2.4 Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of
the date hereof, to have all the rights, powers and duties set forth herein
and in the Statutory Trust Statute.
Section 2.5 Initial Capital Contribution of Owner Trust
Estate. As of August 20, 2002, the Depositor sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of such date,
of the foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate Distribution
Account. The Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section 2.6 Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that (i) the Trust
constitute a statutory trust under the Statutory Trust Statute and that
this Agreement constitute the governing instrument of such statutory trust
and (ii) solely for income and franchise tax purposes, the Trust shall be
treated (a) if it has a single beneficial owner, as a nonentity and (b) if
it has more than one beneficial owner, as a partnership, with the assets of
the partnership being the Receivables, the partners of the partnership
being the Certificateholders and the Notes constituting indebtedness of the
partnership. The parties agree that, unless otherwise required by the
appropriate tax authorities, the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust either as a nonentity or as a partnership
for such tax purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the
Statutory Trust Statute with respect to accomplishing the purposes of the
Trust. The Owner Trustee has filed the Certificate of Trust with the
Secretary of State.
Section 2.7 Title to Trust Property. Legal title to the
entirety of the Owner Trust Estate shall be vested at all times in the
Trust as a separate legal entity, except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the
case may be.
Section 2.8 Situs of Trust. The Trust shall be located
and administered in the State of Delaware. All bank accounts maintained by
the Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of New York. The Trust shall not have any employees
in any state other than the State of Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be
received by the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only office of the
Trust will be at the Corporate Trust Office in the State of Delaware.
Section 2.9 Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner
Trustee that:
(a) The Depositor is duly organized and validly existing
as a statutory trust in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a
foreign business trust in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms, and the Depositor
has full power and authority to sell and assign the property to be sold and
assigned to, and deposited with, the Trust, and the Depositor has duly
authorized such sale and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement has been duly authorized by the Depositor by all necessary
corporate action.
(d) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, the Certificate of Trust or amended and restated trust agreement of
the Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending
or, to the Depositor's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties:
(i) asserting the invalidity of this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Indenture or
any of the other Basic Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of, this
Agreement or (iv) which might adversely affect the Federal income tax
attributes or Applicable Tax State franchise or income tax attributes, of
the Notes.
(f) The representations and warranties of the Depositor
in Section 3.1 of the Purchase Agreement are true and correct.
Section 2.10 Federal Income Tax Matters. The
Certificateholders acknowledge that it is their intent and that they
understand it is the intent of the Depositor and the Servicer that, for
purposes of Federal income, state and local income and franchise tax and
any other income taxes, the Trust will be treated either as a "nonentity"
under Treasury Regulation Section 301.7701-3 or as a partnership, and the
Certificateholders (including the Depositor) will be treated as partners in
that partnership. The Depositor and the other Certificateholders by
acceptance of a Certificate agree to such treatment and agree to take no
action inconsistent with such treatment. For each taxable year (or portion
thereof), other than periods in which there is only one Certificateholder:
(a) to the extent amounts paid to the Depositor pursuant
to Sections 4.1(c), 4.7(a), 4.7(c) and 4.12 of the Sale and Servicing
Agreement or clause (i) of the fourth paragraph of Section 5.1(a) of the
Sale and Servicing Agreement for such year (or other period) are paid in
respect of items of income (as determined for Federal income tax purposes),
such income shall be allocated to the Depositor; and
(b) all remaining net income or net loss, as the case may
be, of the Trust for such year (or other period) as determined for Federal
income tax purposes (and each item of income, gain, credit, loss or
deduction entering into the computation thereof) shall be allocated to the
Certificateholders pro rata in accordance with the outstanding principal
balances of their respective Certificates.
The Depositor is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Depositor or the
Certificateholders or as otherwise required by the Code.
Section 2.11 Characterization of the Trust. For purposes
of SFAS 140, the parties hereto intend that the Trust shall be treated as a
"qualifying special purpose entity" as such term is used in SFAS 140 and
any successor rule thereto and its permitted activities shall be limited in
accordance with paragraphs 35 through 45 thereof. The Depositor agrees that
it does not have the right to prepay the Notes prior to the maturity date
thereof under any circumstances and does hereby irrevocably waive and
relinquish such right.
ARTICLE III - TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1 Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and
until the issuance of the Certificates, the Depositor shall be the sole
beneficiary of the Trust.
Section 3.2 The Certificates. The Certificates shall be
issued in one or more registered, definitive, physical certificates, in
substantially the form set forth in Exhibit A, in minimum denominations of
at least $1,000,000 and multiples of $1,000 in excess thereof; provided,
however, that a single Certificate may be issued in a denomination equal to
the Initial Certificate Balance less the aggregate denominations of all
other Certificates or a denomination less than $1,000. No Certificate may
be sold, transferred, assigned, participated, pledged, or otherwise
disposed of (any such act, a "Transfer") to any Person except in accordance
with the provisions of Section 3.4, and any attempted Transfer in violation
of this Section or Section 3.4 shall be null and void (each, a "Void
Transfer"). Notwithstanding the foregoing, following the delivery to the
Owner Trustee of an Opinion of Counsel to the effect that the elimination
of restrictions on transfer will not cause the Trust to be taxable as a
corporation for Federal income tax purposes or for purposes of the tax laws
of any Applicable Tax State, this Agreement may be amended to modify or
delete transfer restrictions in accordance with such Opinion of Counsel.
The Certificates may be in printed or typewritten form
and shall be executed on behalf of the Trust by manual or facsimile
signature of a Responsible Officer of the Owner Trustee. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits
of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
If Transfer of the Certificates is permitted pursuant to
this Section 3.2 and Section 3.4, a transferee of a Certificate shall
become a Certificateholder, and shall be entitled to the rights and subject
to the obligations of a Certificateholder hereunder upon such transferee's
acceptance of a Certificate duly registered in such transferee's name
pursuant to Section 3.4.
Section 3.3 Authentication of Certificates. Concurrently
with the sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates, in an
aggregate principal amount equal to the Initial Certificate Balance, to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chief executive officer,
chief financial officer, chief accounting officer, treasurer or secretary,
without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its Holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication substantially in
the form set forth in Exhibit A attached hereto executed by the Owner
Trustee or Wilmington Trust Company, as the Owner Trustee's authenticating
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 3.4 Registration of Certificates; Transfer and
Exchange of Certificates. (a) The Certificate Registrar shall keep or cause
to be kept, at the office or agency maintained pursuant to Section 3.8, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trust shall provide for the registration of Certificates
and of Transfers and exchanges of Certificates as herein provided.
Wilmington Trust Company shall be the initial Certificate Registrar. No
Transfer of a Certificate shall be recognized except upon registration of
such Transfer in the Certificate Register.
(b) No Certificateholder shall Transfer any Certificate
initially held by it unless such transfer is made pursuant to an effective
registration statement or otherwise in accordance with the requirements
under the Securities Act and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does
not require such registration or qualification. If a transfer is to be made
in reliance upon an exemption from the Securities Act, and under the
applicable state securities laws, (i) the Certificate Registrar shall
require an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the Securities Act, applicable state securities laws and other relevant
laws, which Opinion of Counsel shall not be an expense of the Certificate
Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar
shall require the transferee to execute a certification acceptable to and
in form and substance satisfactory to the Certificate Registrar setting
forth the facts surrounding such transfer.
(c) No Transfer of any Certificate shall be permitted,
recognized or recorded unless the Depositor has consented in writing to
such Transfer, which consent may be withheld in the sole discretion of the
Depositor; provided, however, that no such consent of the Depositor shall
be required where the proposed transferee is, and at the time of the
Transfer will be, a Certificateholder. Each Certificate shall bear a legend
to the following effect unless determined otherwise by the Administrator
(as certified to the Certificate Registrar in an Officer's Certificate)
consistent with applicable law:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND
ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A
"QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM
ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT
BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER
SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST
AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO
THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH
EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE
OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE
SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY
IN THE FORM ATTACHED AS EXHIBIT E TO THE TRUST AGREEMENT OR (B)
THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH
OTHER EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND
THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE
DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND
BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION,
EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS,
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR
(WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)."
As a condition to the registration of any Transfer of a
Certificate, the prospective transferee of such a Certificate shall
represent to the Owner Trustee and the Certificate Registrar the following:
(i) It has neither acquired nor will it Transfer
any Certificate it purchases (or any interest therein) or cause
any such Certificates (or any interest therein) to be marketed on
or through an "established securities market" within the meaning
of Section 7704(b)(1) of the Code, including, without limitation,
an over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations.
(ii) It either (A) is not, and will not become,
a partnership, Subchapter S corporation, or grantor trust for U.S.
Federal income tax purposes, or (B) is such an entity, but none of
the direct or indirect beneficial owners of any of the interests
in such transferee have allowed or caused, or will allow or cause,
80% or more (or such other percentage as the Depositor may
establish prior to the time of such proposed Transfer) of the
value of such interests to be attributable to such transferee's
ownership of Certificates.
(iii) It understands that no subsequent Transfer
of the Certificates is permitted unless (A) such Transfer is of a
Certificate with a denomination of at least $1,000,000 and (B) the
Depositor consents in writing (which consent may be withheld for
any reason or for no reason) to the proposed Transfer; provided,
however, that no such consent shall be required where the proposed
transferee is, and at the time of the Transfer will be, a Holder
of a Certificate.
(iv) It understands that the opinion of tax
counsel that the Trust is not a publicly traded partnership
taxable as a corporation is dependent in part on the accuracy of
the representations in paragraphs (i), (ii) and (iii) above.
(v) If it is acquiring any Certificates as a
fiduciary or agent for one or more investor accounts, it has sole
investment discretion with respect to each such account and it has
full power to make the acknowledgments, representations and
agreements contained herein on behalf of each such account.
(vi) It is not (A) an employee benefit plan, as
defined in Section 3(3) of ERISA, that is subject to Title I of
ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C)
a governmental plan, as defined in Section 3(32) of ERISA, subject
to any Federal, state or local law which is, to a material extent,
similar to the provisions of Section 406 of ERISA or Section 4975
of the Code, (D) an entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (within the
meaning of Department of Labor Regulation 29 C.F.R. ss.
2510.3-101) or (E) a person investing "plan assets" of any such
plan (excluding, for purposes of this clause (E), any entity
registered under the Investment Company Act of 1940, as amended).
(vii) It is a Person who is either (A) (1) a
citizen or resident of the United States, (2) a corporation,
partnership or other entity organized in or under the laws of the
United States or any political subdivision thereof or (3) a Person
not described in (1) or (2) whose ownership of the Certificates is
effectively connected with such Person's conduct of a trade or
business within the United States (within the meaning of the Code)
and who provides the Depositor and the Owner Trustee an IRS Form
W-8ECI (and such other certifications, representations or opinions
of counsel as may be requested by the Depositor or the Owner
Trustee) or (B) an estate or trust the income of which is
includible in gross income for United States Federal income tax
purposes, regardless of source.
(viii) It understands that any purported
Transfer of any Certificate (or any interest therein) in
contravention of any of the restrictions and conditions (including
any violation of the representation in paragraph (ii) above by an
investor who continues to hold such Certificates occurring any
time after the Transfer in which it acquired such Certificates) in
this Section 3.4 shall be a Void Transfer, and the purported
transferee in a Void Transfer shall not be recognized by the Trust
or any other Person as a Certificateholder for any purpose.
(ix) It agrees that if it determines to Transfer
any of the Certificates it will cause its proposed transferee to
provide to the Trust and the Certificate Registrar a letter
substantially in the form of Exhibit D or E hereof, as applicable,
or such other written statement as the Depositor shall prescribe.
(d) By acceptance of any Certificate, the
Certificateholder thereof specifically agrees with and represents to the
Depositor, the Certificate Registrar and the Trust that no Transfer of such
Certificate shall be made unless the registration requirements of the
Securities Act and any applicable state securities laws are complied with,
or such Transfer is exempt from the registration requirements under the
Securities Act because the Transfer satisfies one of the following:
(i) such Transfer is in compliance with Rule
144A under the Securities Act ("Rule 144A"), to a transferee who
the transferor reasonably believes is a Qualified Institutional
Buyer that is purchasing for its own account or for the account of
a Qualified Institutional Buyer and to whom notice is given that
such transfer is being made in reliance upon Rule 144A and (x) the
transferor executes and delivers to the Trust and the Certificate
Registrar a Rule 144A transferor certificate substantially in the
form attached as Exhibit C and (y) the transferee executes and
delivers to the Trust and the Certificate Registrar an investment
letter substantially in the form attached as Exhibit D;
(ii) after the appropriate holding period, such
Transfer is pursuant to an exemption from registration under the
Securities Act provided by Rule 144 under the Securities Act and
the transferee, if requested by the Trust or the Certificate
Registrar, delivers an Opinion of Counsel in form and substance
satisfactory to the Trust and the Depositor; or
(iii) such Transfer is to an institutional
accredited investor as defined in rule 501(a)(1), (2), (3) or (7)
of Regulation D promulgated under the Securities Act in a
transaction exempt from the registration requirements of the
Securities Act, such Transfer is in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction, and such investor executes and delivers to the Trust
and the Certificate Registrar an investment letter substantially
in the form attached as Exhibit E.
(e) The Trust shall make available to the prospective
transferor and transferee information requested to satisfy the requirements
of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule
144A Information shall include any or all of the following items requested
by the prospective transferee:
(i) each statement delivered to
Certificateholders pursuant to Section 4.9 of the Sale and
Servicing Agreement on each Payment Date preceding such request;
and
(ii) such other information as is reasonably
available to the Owner Trustee in order to comply with requests
for information pursuant to Rule 144A under the Securities Act.
None of the Depositor, the Certificate Registrar or the
Trust is under an obligation to register any Certificate under the
Securities Act or any other securities law.
(f) Upon surrender for registration of Transfer of any
Certificate at the office or agency maintained pursuant to Section 3.8 and
upon compliance with any provisions of this Agreement relating to such
Transfer, the Owner Trustee shall execute, authenticate and deliver (or
shall cause Wilmington Trust Company, as its authenticating agent, to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a
like aggregate amount dated the date of authentication by the Owner Trustee
or any authenticating agent.
Subject to Sections 3.4(b) and 3.4(c), at the option of a
Certificateholder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for
registration of Transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI in form
satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney duly authorized in
writing. Each Certificate surrendered for registration of Transfer or
exchange shall be cancelled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any registration of
Transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
Transfer or exchange of Certificates.
(g) The provisions of this Section 3.4 and of this
Agreement generally are intended to prevent the Trust from being
characterized as a "publicly traded partnership" within the meaning of
Section 7704 of the Code, in reliance on Treasury Regulation ss.
1.7704-1(e) and (h), and the Depositor shall take such intent into account
in determining whether or not to consent to any proposed Transfer of any
Certificate.
The preceding provisions of this Section 3.4
notwithstanding, the Owner Trustee shall not make and the Certificate
Registrar shall not register any Transfer or exchange of Certificates for a
period of 15 days preceding the due date for any payment with respect to
the Certificates.
Notwithstanding anything contained herein to the
contrary, the Owner Trustee shall not be responsible for ascertaining
whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Exchange Act, applicable state
securities law or the Investment Company Act of 1940, as amended; provided,
however, that if a certification is specifically required to be delivered
to the Owner Trustee by a purchaser or transferee of a Certificate, the
Owner Trustee shall be under a duty to examine the same to determine
whether it conforms to the requirements of this Trust Agreement and to
register transfers only upon receipt of documents and certifications
specified herein and shall promptly notify the party delivering the same if
such certification does not so conform.
Section 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there shall be delivered to the Certificate Registrar
and the Owner Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice that such
Certificate shall have been acquired by a bona fide purchaser, the Owner
Trustee on behalf of the Trust shall execute and the Owner Trustee, or
Wilmington Trust Company, as the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for, or in lieu of, any such
mutilated, destroyed, lost or stolen Certificate, as the case may be, a new
Certificate of like tenor and denomination. In connection with the issuance
of any new Certificate under this Section 3.5, the Owner Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.5
shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.6 Persons Deemed Owners of Certificates. Prior
to due presentation of a Certificate for registration of transfer, the
Owner Trustee, the Certificate Registrar and any Paying Agent may treat the
Person in whose name any Certificate shall be registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.2 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
Paying Agent shall be bound by any notice to the contrary.
Section 3.7 Access to List of Certificateholders' Names
and Addresses. The Owner Trustee shall furnish or cause to be furnished to
the Servicer and the Depositor, or to the Indenture Trustee, within 15 days
after receipt by the Owner Trustee of a written request therefor from the
Servicer, the Depositor, or the Indenture Trustee, as the case may be, a
list, in such form as the requesting party may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Certificateholders or one or more Holders of
Certificates evidencing not less than 25% of the Certificate Balance apply
in writing to the Owner Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of
Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
Section 3.8 Maintenance of Office or Agency. The Owner
Trustee shall maintain in Wilmington, Delaware, an office or offices or
agency or agencies where Certificates may be surrendered for registration
of Transfer or exchange and where notices and demands to or upon the Owner
Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee shall give prompt written notice to the Depositor
and to the Certificateholders of any change in the location of the
Certificate Registrar or any such office or agency.
Section 3.9 Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.2 and shall report the amounts
of such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be Wilmington Trust Company, and
any co-paying agent chosen by the Owner Trustee. Wilmington Trust Company
shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Owner Trustee. In the event that Wilmington Trust Company shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner
Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Owner Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the
Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply
to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE IV - ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless, (i) at least 30 days before the
taking of such action, the Owner Trustee shall have notified the
Certificateholders and the Rating Agencies in writing of the proposed
action and (ii) Certificateholders holding not less than a majority of the
aggregate Certificate Balance shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought by the Servicer in connection with the
collection of the Receivables) and the settlement of any action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection by the Servicer of the
Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder 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 assignment by the Note Registrar, Paying Agent for the Notes
or Indenture Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
Section 4.2 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee may not, except upon the occurrence of
an Event of Servicing Termination subsequent to the payment in full of the
Notes and in accordance with the written direction of Certificateholders
holding not less than a majority of the aggregate Certificate Balance, (a)
remove the Servicer under the Sale and Servicing Agreement pursuant to
Article VIII thereof, (b) appoint a successor Servicer pursuant to Article
VIII of the Sale and Servicing Agreement, (c) remove the Administrator
under the Administration Agreement pursuant to Section 8 thereof, (d)
appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement or (e) sell the Receivables after the termination
of the Indenture, except as expressly provided in the Basic Documents.
Section 4.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust unless the Notes
have been paid in full and each Certificateholder approves of such
commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust
is insolvent.
Section 4.4 Restrictions on Certificateholders' Power.
The Certificateholders shall not direct the Owner Trustee to take or
refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Owner Trustee under this Agreement or
any of the other Basic Documents or would be contrary to Section 2.3, nor
shall the Owner Trustee be obligated to follow any such direction, if
given.
Section 4.5 Majority Control. Except as expressly
provided herein, any action that may be taken by the Certificateholders
under this Agreement may be taken by the Holders of Certificates evidencing
not less than a majority of the Certificate Balance. Except as expressly
provided herein, any written notice of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the Certificate Balance
at the time of the delivery of such notice.
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution
Account. Pursuant to Section 4.1(e) of the Sale and Servicing Agreement,
there has been established and there shall be maintained a segregated trust
account in the name of the Owner Trustee which shall be designated as the
"Certificate Distribution Account." The Certificate Distribution Account
shall be held in trust in the name of the Owner Trustee for the benefit of
the Certificateholders. Except as expressly provided in Section 3.9, the
Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee. All monies deposited from time to time in the
Certificate Distribution Account pursuant to the Sale and Servicing
Agreement or the Indenture shall be applied as provided in this Agreement
and the Sale and Servicing Agreement or the Indenture.
Section 5.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee (if other
than the Paying Agent) shall, based on the information contained in the
Servicer's Certificate delivered on the relevant Determination Date
pursuant to Section 3.9 of the Sale and Servicing Agreement, transfer the
amount deposited in the Certificate Distribution Account pursuant to
Section 2.8(a) of the Indenture on such Payment Date to the Paying Agent,
or the Paying Agent, based upon such information, shall withdraw from the
Certificate Distribution Account, for distribution to the
Certificateholders pro rata based on the outstanding principal balance of
the Certificates funds available therein.
(b) On each Payment Date, the Owner Trustee shall, or
shall cause the Paying Agent to, send to each Certificateholder the
statement provided to the Owner Trustee by the Servicer pursuant to Section
4.9 of the Sale and Servicing Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on
the Trust's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2. The Owner Trustee
and each Paying Agent is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any such withholding tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee from
contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings).
The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to
the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Owner Trustee may, in
its sole discretion, withhold such amounts in accordance with this
paragraph (d). In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
Section 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if (i) such Certificateholder shall have provided to
the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date, or (ii) such Certificateholder is
the Depositor or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Notwithstanding the foregoing, the final distribution in respect of any
Certificate (whether on the Certificateholders' final scheduled Payment
Date or otherwise) will be payable only upon presentation and surrender of
such Certificate at the office or agency maintained for that purpose by the
Owner Trustee pursuant to Section 3.8.
Section 5.4 No Segregation of Monies; No Interest.
Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent
required by law, the Indenture or the Sale and Servicing Agreement and may
be deposited under such general conditions as may be prescribed by law, and
the Owner Trustee shall not be liable for any interest thereon.
Section 5.5 Accounting and Reports to the
Certificateholders, the Internal Revenue Service and Others. The Owner
Trustee shall, based on information provided by the Depositor, (a) maintain
(or cause to be maintained) the books of the Trust on the basis of a fiscal
year ending December 31 and based on the accrual method of accounting, (b)
deliver to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its
Federal and state income tax returns, (c) file such tax returns relating to
the Trust (including a partnership information return, IRS Form 1065), and
make such elections as may from time to time be required or appropriate
under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership
for Federal income tax purposes, (d) cause such tax returns to be signed in
the manner required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. The Owner Trustee
shall elect under Section 1278 of the Code to include in income currently
any market discount that accrues with respect to the Receivables. The Owner
Trustee shall not make the election provided under Section 754 of the Code.
The Owner Trustee may satisfy its obligations with
respect to this Section 5.5 by retaining, at the expense of the Depositor,
a firm of independent public accountants (the "Accountants") chosen by the
Depositor which shall perform the filing obligations of the Owner Trustee
hereunder. The Accountants will provide prior to October 31, 2002, a letter
in form and substance satisfactory to the Owner Trustee as to whether any
Federal tax withholding on Certificates is then required and, if required,
the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Accountants shall be required to update the
letter in each instance that any additional tax withholding is subsequently
required or any previously required tax withholding shall no longer be
required. The Owner Trustee shall be deemed to have discharged its
obligations pursuant to this Section upon its retention of the Accountants,
and the Owner Trustee shall not have any liability with respect to the
default or misconduct of the Accountants.
Section 5.6 Signature on Returns; Tax Matters Partner.
(a) The Depositor, as general partner for income tax purposes, shall sign,
on behalf of the Trust, the tax returns of the Trust.
(b) The Depositor shall be designated the "tax matters
partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Trust is to be a party and each certificate or other document attached
as an exhibit to or contemplated by the Basic Documents to which the Trust
is to be a party and any amendment or other agreement, in each case, in
such form as the Depositor shall approve, as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of this
Agreement, and to direct the Indenture Trustee to authenticate and deliver
Notes in the aggregate principal amount of $770,906,000 (comprised of
$66,300,000 in aggregate principal amount of Class A-1 Notes, $230,000,000
in aggregate principal amount of Class A-2 Notes, $200,000,000 in aggregate
principal amount of Class A-3 Notes, $173,500,000 in aggregate principal
amount of Class A-4 Notes, $65,298,000 in aggregate principal amount of
Class B Notes and $35,808,000 in aggregate principal amount of Class C
Notes). In addition to the foregoing, the Owner Trustee is authorized to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action
on behalf of the Trust as is permitted by the Basic Documents and which the
Servicer or the Administrator recommends with respect to the Basic
Documents, except to the extent that this Agreement expressly requires the
consent of Certificateholders for such action.
Section 6.2 General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other
Basic Documents to which the Trust is a party and to administer the Trust
in the interest of the Certificateholders, subject to the lien of the
Indenture and in accordance with the provisions of this Agreement and the
other Basic Documents. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator or
any other Person is required in the Administration Agreement or any of the
Basic Documents to perform any act or to discharge such duty of the Owner
Trustee or the Trust hereunder or under any other Basic Document, and the
Owner Trustee shall not be held liable for the default or failure of the
Administrator or any other Person to carry out its obligations under the
Administration Agreement or any of the Basic Documents.
Section 6.3 Action upon Instruction. (a) Subject to
Article IV, and in accordance with the terms of the Basic Documents, the
Certificateholders may, by written instruction, direct the Owner Trustee in
the management of the Trust.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any Basic Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
this Agreement or any other Basic Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written instruction of the
Certificateholders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action, not inconsistent with
this Agreement or the other Basic Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document
or any such provision is ambiguous as to its application, or is, or appears
to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is
silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction and, to the
extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Owner Trustee shall not
be liable, on account of such action or inaction, to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably
may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such
action or inaction.
Section 6.4 No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record,
sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection
with, any document contemplated hereby to which the Owner Trustee or the
Trust is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.3; and no implied duties or obligations shall
be read into this Agreement or any other Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and
Exchange Commission filing for the Trust or to record this Agreement or any
other Basic Document. The Owner Trustee nevertheless agrees that it will,
at its own cost and expense, promptly take all action as may be necessary
to discharge any lien (other than the lien of the Indenture) on any part of
the Owner Trust Estate that results from actions by, or claims against, the
Owner Trustee that are not related to the ownership or the administration
of the Owner Trust Estate.
Section 6.5 Restrictions. The Owner Trustee shall not
take any action (a) that is inconsistent with the purposes of the Trust set
forth in Section 2.3 or (b) that, to the actual knowledge of a Responsible
Officer of the Owner Trustee, would (i) affect the treatment of the Notes
as indebtedness for Federal income or Delaware or California income or
franchise tax purposes, (ii) be deemed to cause a taxable exchange of the
Notes for Federal income or Delaware or California income or franchise tax
purposes or (iii) cause the Trust or any portion thereof to be taxable as
an association or publicly traded partnership taxable as a corporation for
Federal income or Delaware or California income or franchise tax purposes.
The Certificateholders shall not direct the Owner Trustee to take action
that would violate the provisions of this Section 6.6.
ARTICLE VII - REGARDING THE OWNER TRUSTEE
Section 7.1 Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms
of this Agreement to which the Trust or Owner Trustee is a party and the
other Basic Documents. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by the Owner Trustee, in
its individual capacity. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error
of judgment made in good faith by a responsible officer or employee of the
Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
provisions of this Agreement at the instructions of any Certificateholder,
the Indenture Trustee, the Depositor, the Administrator or the Servicer;
(c) no provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk its personal
funds or otherwise incur any financial liability in the performance of any
of its rights or duties hereunder, or under any other Basic Document, if
the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
personally liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the Notes or
distributions on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or
in respect of the validity or sufficiency of the other Basic Documents,
other than the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the other Basic Documents;
(f) the Owner Trustee shall not be liable for the default
or misconduct of the Servicer, the Administrator, the Depositor, the
Indenture Trustee or any other Person under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or liability to
perform or monitor the performance of the obligations of the Trust under
this Agreement or the other Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Servicer under the Sale and Servicing Agreement or the Indenture Trustee
under the Indenture; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document, at
the request, order or direction of any of the Certificateholders, unless
such Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred by the Owner Trustee therein or thereby; the right of
the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any other Basic Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than its willful
misconduct, bad faith or negligence in the performance of any such act.
Section 7.2 Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
Section 7.3 Representations and Warranties. The Owner
Trustee, in its individual capacity, hereby represents and warrants to the
Depositor, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware.
It has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any Federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, or constitute any default under its charter
documents or bylaws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
Section 7.4 Reliance; Advice of Counsel. (a) The Owner
Trustee may rely upon, shall be protected in relying upon, and shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of the determination of which
is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Owner Trustee (i) may act
directly or through its agents or attorneys pursuant to agreements entered
into with any of them, and the Owner Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled
Persons to be selected with reasonable care and employed by it. The Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this
Agreement or any other Basic Document.
Section 7.5 Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created,
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
other Basic Document shall look only to the Owner Trust Estate for payment
or satisfaction thereof.
Section 7.6 Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other
than the signature and countersignature of the Owner Trustee on the
Certificates) shall be taken as the statements of the Depositor, and the
Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement, of any other Basic Document or of the Certificates (other
than the signature and countersignature of the Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any
Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the
Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including: the existence, condition and ownership of
any Financed Vehicle; the existence and enforceability of any insurance
thereon; the existence and contents of any Receivable on any computer or
other record thereof; the validity of the assignment of any Receivable to
the Trust or any intervening assignment; the completeness of any
Receivable; the performance or enforcement of any Receivable; the
compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document, or
the accuracy of any such warranty or representation or any action of the
Indenture Trustee, the Administrator or the Servicer or any subservicer
taken in the name of the Owner Trustee.
Section 7.7 Owner Trustee May Own Certificates and Notes.
The Owner Trustee, in its individual or any other capacity, may become the
owner or pledgee of Certificates or Notes and may deal with the Depositor,
the Servicer, the Administrator and the Indenture Trustee in banking
transactions with the same rights as it would have if it were not Owner
Trustee.
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE
Section 8.1 Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees
as have been separately agreed upon before the date hereof between the
Depositor and the Owner Trustee, and the Owner Trustee shall be entitled to
and reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
Section 8.2 Indemnification. The Depositor shall be
liable as prime obligor for, and shall indemnify Wilmington Trust Company
and the Owner Trustee and its successors, assigns, agents and servants
(each, an "Indemnified Party" and collectively, the "Indemnified Parties")
from and against, any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at
any time be imposed on, incurred by, or asserted against Wilmington Trust
Company or the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Basic Documents, the Owner
Trust Estate, the administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee hereunder; provided that the Depositor shall
not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from any of the matters described in
the third sentence of Section 7.1. The Depositor will in no event be
entitled to make any claim upon the Trust Property for the payment or
reimbursement of any Expenses. The indemnities contained in this Section
8.2 shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section 8.2,
the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably
withheld.
Section 8.3 Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VIII shall be deemed not
to be a part of the Owner Trust Estate immediately after such payment.
ARTICLE IX - TERMINATION
Section 9.1 Termination of Trust Agreement. (a) This
Agreement (other than the provisions of Article VIII) and the Trust shall
dissolve, wind-up and terminate in accordance with Section 3808 of the
Statutory Trust Statute and be of no further force or effect (i) upon the
payment to the Noteholders and the Certificateholders of all amounts
required to be paid to them pursuant to the terms of the Indenture, the
Sale and Servicing Agreement and Article V or (ii) on the Payment Date next
succeeding the month which is one year after the maturity or other
liquidation of the last Receivable and the disposition of any amounts
received upon liquidation of any property remaining in the Trust in
accordance with the terms and priorities set forth in the Indenture, the
Sale and Servicing Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding
up of all or any part of the Trust or Owner Trust Estate nor (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) No Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying
the Payment Date upon which the Certificateholders shall surrender their
Certificates, to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer, stating (i) the Payment Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates, at the office of the Paying
Agent therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates,
the Paying Agent shall cause to be distributed to Certificateholders,
amounts distributable on such Payment Date pursuant to Section 5.2.
In the event that all of the Certificateholders shall not
surrender their Certificates, as the case may be, for cancellation within
six months after the date specified in the above mentioned written notice,
the Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates, respectively, for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice all the Certificates shall not have
been surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders, as the case may be, concerning surrender of
their Certificates as the case may be, and the cost thereof shall be paid
out of the funds and other assets that shall remain subject to this
Agreement. Subject to applicable escheat laws, any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination,
the Owner Trustee shall cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Statutory Trust
Statute.
Section 9.2 Prepayment of the Certificates. (a) The
Certificates shall be prepaid in whole, but not in part, at the direction
of the Servicer pursuant to Section 9.1(a) of the Sale and Servicing
Agreement, on any Payment Date on which the Servicer exercises its option
to purchase the assets of the Trust pursuant to said Section 9.1(a), and
the amount paid by the Servicer shall be treated as collections of
Receivables and applied to pay the unpaid principal amount of the Notes
plus accrued and unpaid interest thereon, together with the unpaid
principal amount of the Certificates. The Servicer shall furnish the Rating
Agencies and the Certificateholders notice of such prepayment. If the
Certificates are to be prepaid pursuant to this Section 9.2(a), the
Servicer shall furnish notice of such election to the Owner Trustee not
later than 20 days prior to the Prepayment Date and the Trust shall deposit
by 10:00 A.M. (New York City time) on the Prepayment Date in the
Certificate Distribution Account the Prepayment Price of the Certificates
to be prepaid, whereupon all such Certificates shall be due and payable on
the Prepayment Date.
(b) In addition, following payment in full of the Notes,
the Holders of 100% of the Certificate Balance may agree to liquidate the
Trust and prepay the Certificates.
(c) Notice of prepayment under Section 9.2(a) shall be
given by the Owner Trustee by first-class mail, postage prepaid, or by
facsimile mailed or transmitted immediately following receipt of notice
from the Trust or Servicer pursuant to Section 9.2(a), but not later than
10 days prior to the applicable Prepayment Date, to each Holder of
Certificate as of the close of business on the Record Date preceding the
applicable Prepayment Date, at such Holder's address or facsimile number
appearing in the Certificate Register.
All notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to
be surrendered for payment of the Prepayment Price (which shall be
the office or agency of the Owner Trustee to be maintained as
provided in Section 3.8).
Notice of prepayment of the Certificates shall be given by the Owner
Trustee in the name and at the expense of the Trust. Failure to give notice
of prepayment, or any defect therein, to any Holder of any Certificate
shall not impair or affect the validity of the prepayment of any other
Certificate.
(d) The Certificates to be prepaid shall, following
notice of prepayment as required by Section 9.2(a), on the Prepayment Date
be paid by the Trust at the Prepayment Price and (unless the Trust shall
default in the payment of the Prepayment Price) no interest shall accrue on
the Prepayment Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Prepayment Price.
Following payment in full of the Prepayment Price, this Agreement and the
Trust shall terminate.
ARTICLE X - SUCCESSOR OWNER TRUSTEES
AND ADDITIONAL OWNER TRUSTEES
Section 10.1 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times (i) be a corporation satisfying the
provisions of Section 3807(a) of the Statutory Trust Statute; (ii) be
authorized to exercise corporate trust powers; (iii) have a combined
capital and surplus of at least $50,000,000 and shall be subject to
supervision or examination by Federal or state authorities; and (iv) shall
have (or shall have a parent that has) a long-term debt rating of
investment grade by each of the Rating Agencies or be otherwise acceptable
to the Rating Agencies. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 10.1, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner
Trustee shall cease to be eligible in accordance with the provisions of
this Section 10.1, the Owner Trustee shall resign immediately in the manner
and with the effect specified in Section 10.2.
Section 10.2 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner Trustee
may, at the expense of the Trust, petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 10.1 and shall fail
to resign after written request therefor by the Administrator, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the outgoing Owner Trustee so removed and one copy to the successor
Owner Trustee and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section 10.2 shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 10.3 and
payment of all fees and expenses owed to the outgoing Owner Trustee. The
Administrator shall provide notice of such resignation or removal of the
Owner Trustee to the Certificateholders, the Indenture Trustee, the
Noteholders and each of the Rating Agencies.
Section 10.3 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties, and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall, upon payment of its fees and expenses, deliver to the
successor Owner Trustee all documents and statements and monies held by it
under this Agreement, and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties,
and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section 10.3 unless, at the time of such acceptance, such
successor Owner Trustee shall be eligible pursuant to Section 10.1.
Any successor Owner Trustee appointed pursuant to this
Section 10.3 shall file an amendment to the Certificate of Trust reflecting
the name and principal place of business of such succession in the state of
Delaware.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section 10.3, the Administrator shall mail notice
of the successor of such Owner Trustee to all Certificateholders, the
Indenture Trustee, the Noteholders and the Rating Agencies. If the
Administrator shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
Section 10.4 Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the successor to
the Owner Trustee hereunder; provided that such corporation shall be
eligible pursuant to Section 10.1, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided further, however,
that the Owner Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.
Section 10.5 Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall at
any time have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 10.5, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee
or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties, and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other
trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article X. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Supplements and Amendments. (a) This
Agreement may be amended by the Depositor and the Owner Trustee, with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholders to: (i) cure any ambiguity, to
revise, correct or supplement any provisions herein, (ii) enable the Trust
to avoid becoming a member of MMCA's consolidated group under GAAP or (iii)
enable the Transferor or any Affiliate of the Transferor or any of their
Affiliates to otherwise comply with or obtain more favorable treatment
under any law or regulation or any accounting rule or principle; provided,
however, that such action shall not (x) as evidenced by an Opinion of
Counsel satisfactory to the Owner Trustee and the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder (unless each such Holder has consented thereto), or (y)
as evidenced by an Opinion of Counsel, (i) materially adversely affect the
Federal or any Applicable Tax State income or franchise taxation of any
outstanding Note or Certificate, or any Holder thereof or (ii) cause the
Trust to be taxable as a corporation for Federal or any Applicable Tax
State income or franchise tax purposes; provided, further, that no such
amendment shall be inconsistent with the derecognition by MMCA of the
Receivables under GAAP or cause the Trust to become a member of MMCA's
consolidated group under GAAP.
(b) This Agreement may also be amended from time to time
by the Depositor and the Owner Trustee, with prior written notice of the
substance of such amendment to the Rating Agencies and the Indenture
Trustee, with the consent of (i) the Holders (as defined in the Indenture)
of Notes evidencing not less than a majority of the aggregate principal
amount of the then outstanding Notes, voting as a group and (ii) the
Holders of Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that are required to be made on any Note or
Certificate, or change any Note Interest Rate, or (ii) reduce the aforesaid
percentage of the principal amount of the then outstanding Notes and the
Certificate Balance required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates
affected thereby or (iii) adversely affect the ratings of any Class of
Notes by the Rating Agencies without the consent, respectively, of holders
of Notes evidencing not less than 66 2/3% of the aggregate principal amount
of the then outstanding Notes of such Class or (iv) amend the activities of
the Trust as permitted in Section 2.3; and provided further that an Opinion
of Counsel shall be furnished to the Indenture Trustee and the Owner
Trustee to the effect that such amendment (A) will not materially adversely
affect the Federal or any Applicable Tax State income or franchise taxation
of any outstanding Note or Certificate, or any Holder thereof and (B) will
not cause the Trust to be taxable as a corporation for Federal or any
Applicable Tax State income or franchise tax purposes.
(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 Trust is a
party, the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel, a copy of which will be sent to the Rating
Agencies, to the effect that such amendment is authorized or permitted by
the Basic Documents and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
Section 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to
any part of the Owner Trust Estate. The Certificateholders shall be
entitled to receive distributions with respect to their undivided
beneficial interest therein only in accordance with Articles V and IX. No
transfer, by operation of law or otherwise, of any right, title, or
interest of the Certificateholders to and in their beneficial interest in
the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Owner Trust Estate.
Section 11.3 Limitation on Rights of Others. The
provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Administrator, the Certificateholders the
Servicer and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 11.4 Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt by the intended recipient or three
Business Days after mailing if mailed by certified mail, postage prepaid
(except that notice to the Owner Trustee shall be deemed given only upon
actual receipt by the Owner Trustee), if to the Owner Trustee, addressed to
the Corporate Trust Office; if to the Depositor, addressed to MMCA Auto
Receivables Trust II at the address of its principal executive office first
above written; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.5 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or the Certificates, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 11.6 Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 11.7 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Depositor, the Owner Trustee and their respective successors and
each Certificateholder and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 11.8 Covenants of the Depositor. In the event
that (a) the principal balance of Receivables underlying the Certificates
shall be reduced by Realized Losses and (b) any litigation with claims in
excess of $1,000,000 to which the Depositor is a party which shall be
reasonably likely to result in a material judgment against the Depositor
that the Depositor will not be able to satisfy shall be commenced by a
Certificateholder, during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in
a final judgment against the Depositor, such judgment has been satisfied),
the Depositor shall not pay any dividend to MMCA, or make any distribution
on or in respect of its capital stock to MMCA, or repay the principal
amount of any indebtedness of the Depositor held by MMCA, unless (i) after
giving effect to such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual damages claimed
in such litigation or (ii) the Rating Agency Condition shall have been
satisfied with respect to any such payment, distribution or repayment. The
Depositor will not at any time institute against the Trust any bankruptcy
proceedings under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Certificates, the
Notes, this Agreement or any of the other Basic Documents.
Section 11.9 No Petition; Subordination; Claims Against
Depositor. The Owner Trustee (not in its individual capacity but solely as
Owner Trustee), by entering into this Agreement, each Certificateholder, by
accepting a Certificate, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and agree that:
(a) they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or
the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any
of the other Basic Documents;
(b) any claim that they may have at any time against the
Subtrust Assets of any Subtrust unrelated to the Notes or the Certificates,
and any claim that they may have at any time against the Depositor that
they may seek to enforce against the Subtrust Assets of any Subtrust
unrelated to the Notes or the Certificates, shall be subordinate to the
payment in full, including post-petition interest, in the event that the
Depositor becomes a debtor or debtor in possession in a case under any
applicable Federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other similar proceedings,
of the claims of the holders of any Securities related to such unrelated
Subtrust and the holders of any other notes, bonds, contracts or other
obligations that are related to such unrelated Subtrust; and
(c) they hereby irrevocably make the election afforded by
Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i) to secured creditors
to receive the treatment afforded by Title 00 Xxxxxx Xxxxxx Code Section
1111(b)(2) with respect to any secured claim that they may have at any time
against the Depositor. The obligations of the Depositor under this
Agreement and the Certificates are limited to the related Subtrust and the
related Subtrust Assets.
Section 11.10 No Recourse. Each Certificateholder, by
accepting a Certificate, acknowledges that such Certificateholder's
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, the
Certificates, or the other Basic Documents.
Section 11.11 Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
Section 11.12 Governing Law. This Agreement shall be
construed in accordance with the laws of the State of Delaware and the
obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
MMCA AUTO RECEIVABLES TRUST II,
as Depositor
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Secretary & Treasurer
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Exhibit A
---------
NUMBER $_____________
R-1
THIS CERTIFICATE MAY
NOT BE TRANSFERRED
BY A STOCK POWER BUT
ONLY AS SET FORTH BELOW.
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF
THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST
$1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE
TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE
FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT REFERRED TO BELOW AND (B)
THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER
SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST
AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE
REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO
THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE
REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER,
RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND
THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR
ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF
THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING
CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE
DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON).
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS CERTIFICATE
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
MMCA AUTO OWNER TRUST 2002-4
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined
below, which property includes a pool of retail installment sale contracts
secured by new and used automobiles and light-duty trucks sold from time to
time to MMCA Auto Receivables Trust II by Mitsubishi Motors Credit of
America, Inc. and sold by MMCA Auto Receivables Trust II from time to time
to the Trust. The property of the Trust (other than the Certificate
Distribution Account and the proceeds thereof) has been pledged to the
Indenture Trustee pursuant to the Indenture to secure the payment of the
Notes issued thereunder.
(This Certificate does not represent an interest in or obligation of
Mitsubishi Motors Credit of America, Inc., MMCA Auto Receivables Trust II
or any of their respective affiliates, except to the extent described
below.)
THIS CERTIFIES THAT MMCA AUTO RECEIVABLES TRUST II is the
registered owner of a ____________________________ DOLLARS nonassessable,
fully paid, beneficial interest in Certificates of MMCA Auto Owner Trust
2002-4 (the "Trust") formed by MMCA Auto Receivables Trust II, a Delaware
statutory trust (the "Depositor"). The Certificates have an aggregate
Initial Certificate Balance of $ _____.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated:______________
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity but or not in its individual capacity
solely as Owner Trustee but solely as Owner Trustee
By: _______________________ By: WILMINGTON TRUST COMPANY
Responsible Officer as Authenticating Agent
By: ______________________
Responsible Officer
The Trust was created pursuant to a Trust Agreement,
dated as of August 20, 2002 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Trust Agreement"), by and between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement
or the Sale and Servicing Agreement, dated as of October 1, 2002 (as
amended, supplemented or otherwise modified and in effect from time to
time, the "Sale and Servicing Agreement"), by and among the Trust, the
Depositor, as seller (in such capacity, the "Seller"), and Mitsubishi
Motors Credit of America, Inc., as servicer (the "Servicer"), as
applicable.
This Certificate is one of the duly authorized
Certificates designated as "Asset Backed Certificates" (herein called the
"Certificates"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The property of the Trust
includes (i) a pool of retail installment sale contracts for new and used
automobiles and light-duty trucks and certain rights and obligations
thereunder (the "Receivables"), (ii) with respect to Actuarial Receivables,
monies due thereunder on or after the related Cutoff Date (including
Payaheads) and, with respect to Simple Interest Receivables, monies
received thereunder on or after the related Cutoff Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Trust in the Financed Vehicles;
(iv) all rights to receive proceeds with respect to the Receivables from
claims on any physical damage, theft, credit life or disability insurance
policies covering the Financed Vehicles or Obligors; (v) all rights to
receive proceeds with respect to the Receivables from recourse to Dealers
thereon pursuant to the Dealer Agreements; (vi) all of the Seller's rights
to the Receivable Files; (vii) the Trust Accounts and all amounts,
securities, financial assets, investments and other property deposited in
or credited to any of the foregoing and all proceeds thereof; (viii) all of
the rights under the Sale and Servicing Agreement and the Yield Supplement
Agreement, (ix) all of the rights under the Purchase Agreement, including
the right of the Seller to cause MMCA to repurchase Receivables from the
Seller; (x) all payments and proceeds with respect to the Receivables held
by the Servicer; (xi) all property (including the right to receive
Liquidation Proceeds and Recoveries and Financed Vehicles and the proceeds
thereof acquired by the Trust pursuant to the terms of the Final Payment
Receivables), guarantees and other collateral securing a Receivable (other
than a Receivable repurchased by the Servicer or purchased by the Seller);
(xii) all rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
related Cutoff Date; and (xiii) 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 15th day of each month or, if such 15th day is not a Business Day, the
next Business Day (each, a "Payment Date"), commencing November 15, 2002,
to the Person in whose name this Certificate is registered at the close of
business on the fourteenth day of such calendar month (the "Record Date")
such Certificateholder's percentage interest in the amount to be
distributed to Certificateholders on such Payment Date; provided, however,
that principal will be distributed to the Certificateholders on each
Payment Date (to the extent of funds remaining after the Total Servicing
Fee, all required payments on Notes and any required deposit to the Reserve
Account have been made on such Payment Date). Notwithstanding the
foregoing, following the occurrence and during the continuation of an Event
of Default under the Indenture which has resulted in an acceleration of the
Notes or following certain events of insolvency with respect to the
Depositor, no distributions of principal or interest will be made on the
Certificates until all the Notes have been paid in full.
The Holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local
income tax and any other income taxes, the Trust will be treated as a
partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate, agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for
such tax purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder will not at
any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Certificates, the Trust Agreement or any of the other Basic Documents.
Distributions on this Certificate will be made as
provided in the Trust Agreement by the Owner Trustee or the Paying Agent by
wire transfer or check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for the
purpose by the Owner Trustee in Wilmington, Delaware.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall
have been executed by a Responsible Officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
This Certificate shall be construed in accordance with
the laws of the State of Delaware, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
In WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly
executed.
MMCA AUTO OWNER TRUST 2002-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: _________________________________
Responsible Officer
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Administrator, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein, in the Trust Agreement or in the other Basic
Documents. This Certificate has been executed by Wilmington Trust Company
not in its individual capacity but solely in its capacity as Owner Trustee
of the Trust, and in no event shall Wilmington Trust Company in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Trust hereunder, as to
all of which recourse shall be solely to the assets of the Trust. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections
with respect to the Receivables (and certain other amounts), all as more
specifically set forth herein and in the Sale and Servicing Agreement. The
Trust will furnish, upon the request of any holder of a Certificate, such
information as is specified in paragraph (d)(4) of Rule 144A of the
Securities Act with respect to the Trust. A registration statement, which
includes the Trust Agreement as an exhibit thereto, has been filed with the
Securities and Exchange Commission with respect to the Notes of the Trust
issued concurrently with this Certificate.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights
and obligations of the Depositor and the rights of the Certificateholders
under the Trust Agreement at any time by the Depositor and the Owner
Trustee with the consent of the Holders of the Notes and the Holders of the
Certificates each voting as a class evidencing not less than a majority of
the principal amount of the then outstanding Notes and the Certificate
Balance, respectively. 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 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 aggregate
Principal Balance of the Receivables as of the respective Cutoff Dates for
the Receivables.
The Holder of this Certificate, by acceptance of this
Certificate, covenants and agrees by accepting the benefits of the Trust
Agreement that any claim that such Holder may have at any time against the
Subtrust Assets of any Subtrust unrelated to the Certificates, and any
claim that such Holder may have against the Depositor that such Holder may
seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Certificates, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Depositor becomes a debtor or
debtor in possession in a case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders
of any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Depositor represented by this
Certificate are limited to the related Subtrust and the related Subtrust
Assets.
EACH HOLDER, BY ACCEPTANCE OF A CERTIFICATE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH HOLDER MAY HAVE AT ANY TIME AGAINST THE
DEPOSITOR.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________________________________________Attorney
to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*/
----------------------------------
Signature Guaranteed:
*/
----------------------------------
Signature Guaranteed:
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company.
Exhibit B
---------
[Form of Certificate of Trust]
CERTIFICATE OF TRUST OF
MMCA AUTO OWNER TRUST 2002-4
This Certificate of Trust of MMCA AUTO OWNER TRUST 2002-4
(the "Trust") is being duly executed and filed by the Undersigned as
trustee, to form a statutory trust under the Delaware Statutory Trust Act
(12 Del. Code, Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is
MMCA AUTO OWNER TRUST 2002-4.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust in accordance
with Section 3811 of the Act.
WILMINGTON TRUST COMPANY,
as trustee
By: ___________________________
Name:
Title:
Exhibit C
---------
[Form of Rule 144A Transferor Certificate]
[Date]
Wilmington Trust Company
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in
denomination of Asset Backed Certificates (the "Certificates") of MMCA Auto
Owner Trust 2002-4 (the "Trust").
The undersigned is the holder of the Certificates and
with this notice hereby deposits with the Owner Trustee $ [*] in
denomination of Certificates and requests that Certificates in the same
aggregate denomination be issued, executed and authenticated and registered
to the purchaser on , , as specified in the Amended
and Restated Trust Agreement dated as of October 1, 2002 relating to the
Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
--------
[* minimum of $1,000,000]
The undersigned represents and warrants that the
undersigned (i) reasonably believes the purchaser is a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act of
1933 (the "Act"), (ii) such purchaser has acquired the Certificates in a
transaction effected in accordance with the exemption from the registration
requirements of the Act provided by Rule 144A and, (iii) if the purchaser
has purchased the Certificates for one or more accounts for which it is
acting as fiduciary or agent, (A) each such account is a qualified
institutional buyer and (B) the purchaser is acquiring Certificates for its
own account or for one or more institutional accounts for which it is
acting as fiduciary or agent in a minimum amount equivalent to at least
$1,000,000 for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By: ____________________________
Name:
Title:
Exhibit D
---------
[Form of Investment Letter - Qualified Institutional Buyer]
[Date]
MMCA Auto Owner Trust 2002-4,
as Issuer
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Asset
Backed Certificates (the "Certificates") of MMCA Auto Owner Trust 2002-4
(the "Trust"), a trust formed by MMCA Auto Receivables Trust II (the
"Depositor" or "Seller"), we confirm that:
1. We agree to be bound by the restrictions and
conditions set forth in the Amended and Restated Trust Agreement dated as
of October 1, 2002 (the "Trust Agreement") relating to the Certificates and
we agree to be bound by, and not to resell, transfer, assign, participate,
pledge, or otherwise dispose of (any such act, a "Transfer") the
Certificates except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
2. We have neither acquired nor will we Transfer any
Certificate we purchase (or any interest therein) or cause any such
Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), including,
without limitation, an over-the-counter-market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations.
3. We either (a) are not, and will not become, a
partnership, Subchapter S corporation, or grantor trust for U.S. Federal
income tax purposes or (b) are such an entity, but none of the direct or
indirect beneficial owners of any of the interests in us have allowed or
caused, or will allow or cause, 80% or more (or such other percentage as
the Seller may establish prior to the time of such proposed Transfer) of
the value of such interests to be attributable to our ownership of
Certificates.
4. We understand that no subsequent Transfer of the
Certificates is permitted unless (i) such Transfer is of a Certificate with
a denomination of at least $1,000,000 and (ii) the Depositor consents in
writing (which consent may be withheld for any reason or for no reason) to
the proposed Transfer; provided, however, that no such consent shall be
required where the proposed transferee is, and at the time of the Transfer
will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the
Trust is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs 2, 3
and 4.
6. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Securities Act) (a "QIB") and we are
acquiring the Certificates for our own account or for the account of a QIB
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment. We acknowledge that
the sale of the Certificates to us is being made in reliance on Rule 144A.
7. We are acquiring each of the Certificates purchased by
us for our own account or for a single account (which is a QIB and from
which no resale, pledge, or other transfer may be made) as to which we
exercise sole investment discretion.
8. We are not (A) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to Title I of ERISA, (B) a plan
described in Section 4975(e)(1) of the Code, (C) a governmental plan, as
defined in Section 3(32) of ERISA, subject to any Federal, state or local
law which is, to a material extent, similar to the provisions of Section
406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying
assets include plan assets by reason of a plan's investment in the entity
(within the meaning of Department of Labor Regulation 29 C.F.R. ss.
2510.3-101) or (E) a person investing "plan assets" of any such plan
(excluding, for purposes of this clause (E), any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a person who is either (A) (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other
entity organized in or under the laws of the United States or any political
subdivision thereof or (iii) a person not described in (i) or (ii) whose
ownership of the Certificates is effectively connected with such person's
conduct of a trade or business within the United States (within the meaning
of the Code) and who provides the Depositor and the Trust an IRS Form
W-8ECI (and such other certifications, representations or opinions of
counsel as may be requested by the Depositor or the Trust) or (B) an estate
or trust the income of which is includible in gross income for United
States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any
Certificate (or any interest therein) in contravention of the restrictions
and conditions (including any violation of the representation in paragraph
3 by an investor who continues to hold such Certificates occurring any time
after the Transfer in which it acquired such Certificates) in paragraphs 1
through 9 above shall be null and void (each, a "Void Transfer"), and the
purported transferee in a Void Transfer shall not be recognized by the
Trust or any other person as a Certificateholder for any purpose.
11. We agree that if we determine to Transfer any of the
Certificates we will cause our proposed transferee to provide to the Trust
and the Certificate Registrar a letter substantially in the form of this
Exhibit D or Exhibit E to the Trust Agreement, as applicable.
You are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
By:___________________________
Name:
Title:
Securities To Be Purchased:
$ principal balance of Certificates
Exhibit E
---------
[Form of Investment Letter - Institutional Accredited Investor]
[Date]
MMCA Auto Owner Trust 2002-4
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Asset
Backed Certificates (the "Certificates") of MMCA Auto Owner Trust 2002-4
(the "Trust"), a trust formed by MMCA Auto Receivables Trust II (the
"Depositor" or "Seller"), we confirm that:
1. We agree to be bound by the restrictions and
conditions set forth in the Amended and Restated Trust Agreement dated as
of October 1, 2002 (the "Trust Agreement") relating to the Certificates and
we agree to be bound by, and not to resell, transfer, assign, participate,
pledge, or otherwise dispose of (any such act, a "Transfer") the
Certificates except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
2. We have neither acquired nor will we Transfer any
Certificate we purchase (or any interest therein) or cause any such
Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), including,
without limitation, an over-the-counter-market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations.
3. We either (a) are not, and will not become, a
partnership, Subchapter S corporation, or grantor trust for U.S. Federal
income tax purposes or (b) are such an entity, but none of the direct or
indirect beneficial owners of any of the interests in us have allowed or
caused, or will allow or cause, 80% or more (or such other percentage as
the Depositor may establish prior to the time of such proposed Transfer) of
the value of such interests to be attributable to our ownership of
Certificates.
4. We understand that no subsequent Transfer of the
Certificates is permitted unless (i) such Transfer is of a Certificate with
a denomination of at least $1,000,000 and (ii) the Depositor consents in
writing (which consent may be withheld for any reason or for no reason) to
the proposed Transfer; provided, however, that no such consent shall be
required where the proposed transferee is, and at the time of the Transfer
will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the
Trust is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs 2, 3
and 4 and that in addition to being subject to having its purchase
rescinded, it will be liable for damages.
6. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and we
are acquiring the Certificates for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in violation
of the Securities Act, and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of
our investment in the Certificates, and we and any accounts for which we
are acting are each able to bear the economic risk of our or their
investment.
7. We are acquiring each of the Certificates purchased by
us for our own account or for a single account (each of which is an
institutional "accredited investor" and from which no resale, pledge or
other transfer may be made) as to which we exercise sole investment
discretion.
8. We are not (A) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to Title I of ERISA, (B) a plan
described in Section 4975(e)(1) of the Code, (C) a governmental plan, as
defined in Section 3(32) of ERISA, subject to any Federal, state or local
law which is, to a material extent, similar to the provisions of Section
406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying
assets include plan assets by reason of a plan's investment in the entity
(within the meaning of Department of Labor Regulation 29 C.F.R. ss.
2510.3-101) or (E) a person investing "plan assets" of any such plan
(excluding, for purposes of this clause (E), any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a person who is either (A) (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other
entity organized in or under the laws of the United States or any political
subdivision thereof or (iii) a person not described in (i) or (ii) whose
ownership of the Certificates is effectively connected with such person's
conduct of a trade or business within the United States (within the meaning
of the Code) and who provides the Depositor and the Trust an IRS Form
W-8ECI (and such other certifications, representations or opinions of
counsel as may be requested by the Depositor or the Trust) or (B) an estate
or trust the income of which is includible in gross income for United
States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any
Certificate (or any interest therein) in contravention of the restrictions
and conditions (including any violation of the representation in paragraph
3 by an investor who continues to hold such Certificates occurring any time
after the Transfer in which it acquired such Certificates) in paragraphs 1
through 9 above shall be null and void (each, a "Void Transfer"), and the
purported transferee in a Void Transfer shall not be recognized by the
Trust or any other person as a Certificateholder for any purpose.
11. We agree that if we determine to Transfer any of the
Certificates, we will cause our proposed transferee to provide to the Trust
and the Certificate Registrar a letter substantially in the form of this
Exhibit F or Exhibit E to the Trust Agreement, as applicable.
You are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
By: __________________________
Name:
Title:
