Exhibit 4.1
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AMENDED AND RESTATED
TRUST AGREEMENT
between
MMCA AUTO RECEIVABLES TRUST II,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of August 5, 2002
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS...........................................................................................1
ARTICLE II - ORGANIZATION OF THE TRUST............................................................................1
Section 2.1 Name....................................................................................1
Section 2.2 Office..................................................................................1
Section 2.3 Purposes and Powers.....................................................................1
Section 2.4 Appointment of Owner Trustee............................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate......................................2
Section 2.6 Declaration of Trust....................................................................2
Section 2.7 Title to Trust Property.................................................................3
Section 2.8 Situs of Trust..........................................................................3
Section 2.9 Representations and Warranties of the Depositor.........................................3
Section 2.10 Federal Income Tax Matters..............................................................4
Section 2.11 Characterization of the Trust...........................................................4
ARTICLE III - TRUST CERTIFICATES AND TRANSFER OF INTERESTS........................................................5
Section 3.1 Initial Ownership.......................................................................5
Section 3.2 The Certificates........................................................................5
Section 3.3 Authentication of Certificates..........................................................5
Section 3.4 Registration of Certificates; Transfer and Exchange of Certificates.....................5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates......................................10
Section 3.6 Persons Deemed Owners of Certificates..................................................10
Section 3.7 Access to List of Certificateholders' Names and Addresses..............................10
Section 3.8 Maintenance of Office or Agency........................................................11
Section 3.9 Appointment of Paying Agent............................................................11
ARTICLE IV - ACTIONS BY OWNER TRUSTEE............................................................................11
Section 4.1 Prior Notice to Certificateholders with Respect to Certain Matters.....................11
Section 4.2 Action by Certificateholders with Respect to Certain Matters...........................12
Section 4.3 Action by Certificateholders with Respect to Bankruptcy................................12
Section 4.4 Restrictions on Certificateholders' Power..............................................12
Section 4.5 Majority Control.......................................................................12
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...........................................................13
Section 5.1 Establishment of Certificate Distribution Account......................................13
Section 5.2 Application of Trust Funds.............................................................13
Section 5.3 Method of Payment......................................................................13
Section 5.4 No Segregation of Monies; No Interest..................................................14
Section 5.5 Accounting and Reports to the Certificateholders, the Internal Revenue
Service and Others.....................................................................14
Section 5.6 Signature on Returns; Tax Matters Partner..............................................14
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE...............................................................15
Section 6.1 General Authority......................................................................15
Section 6.2 General Duties.........................................................................15
Section 6.3 Action upon Instruction................................................................15
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions.....................16
Section 6.5 Restrictions...........................................................................16
ARTICLE VII - REGARDING THE OWNER TRUSTEE........................................................................17
Section 7.1 Acceptance of Trusts and Duties........................................................17
Section 7.2 Furnishing of Documents................................................................18
Section 7.3 Representations and Warranties.........................................................18
Section 7.4 Reliance; Advice of Counsel............................................................18
Section 7.5 Not Acting in Individual Capacity......................................................19
Section 7.6 Owner Trustee Not Liable for Certificates or Receivables...............................19
Section 7.7 Owner Trustee May Own Certificates and Notes...........................................19
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE.....................................................................19
Section 8.1 Owner Trustee's Fees and Expenses......................................................19
Section 8.2 Indemnification........................................................................19
Section 8.3 Payments to the Owner Trustee..........................................................20
ARTICLE IX - TERMINATION.........................................................................................20
Section 9.1 Termination of Trust Agreement.........................................................20
Section 9.2 Prepayment of the Certificates.........................................................21
ARTICLE X - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES..............................................22
Section 10.1 Eligibility Requirements for Owner Trustee.............................................22
Section 10.2 Resignation or Removal of Owner Trustee................................................22
Section 10.3 Successor Owner Trustee................................................................23
Section 10.4 Merger or Consolidation of Owner Trustee...............................................23
Section 10.5 Appointment of Co-Trustee or Separate Trustee..........................................23
ARTICLE XI - MISCELLANEOUS.......................................................................................24
Section 11.1 Supplements and Amendments.............................................................24
Section 11.2 No Legal Title to Owner Trust Estate in Certificateholders.............................26
Section 11.3 Limitation on Rights of Others.........................................................26
Section 11.4 Notices................................................................................26
Section 11.5 Severability...........................................................................26
Section 11.6 Separate Counterparts..................................................................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 August 5,
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 business 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 5, 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 August
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 2002-3," 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
Business Trust Statute.
Section 2.5 Initial Capital Contribution of Owner Trust Estate. As of
August 5, 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 business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust and (ii) solely for income and
franchise tax purposes, the Trust shall be treated (a) if it has a single
beneficial owner, as a 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 Business Trust Statute with respect to accomplishing the
purposes of the Trust. The Owner Trustee has filed the Certificate of Trust
with the Secretary of State.
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
business 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 or chief accounting officer, 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 Business
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or add any provision that would
not materially adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent for the Notes or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
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 August 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 $594,750,000 (comprised of $70,000,000 in aggregate principal amount
of Class A-1 Notes, $165,000,000 in aggregate principal amount of Class A-2
Notes, $150,000,000 in aggregate principal amount of Class A-3 Notes,
$131,750,000 in aggregate principal amount of Class A-4 Notes, $50,375,000 in
aggregate principal amount of Class B Notes and $27,625,000 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 Business 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 Business 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 Business Trust Statute; (ii) be authorized to exercise
corporate trust powers; (iii) have a combined capital and surplus of at least
$50,000,000 and shall be subject to supervision or examination by Federal or
state authorities; and (iv) shall have (or shall have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or be
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 10.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
10.1, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
Section 10.2 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 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 hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the 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/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant 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 2002-3
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
2002-3 (the "Trust") formed by MMCA Auto Receivables Trust II, a Delaware
business trust (the "Depositor"). The Certificates have an aggregate Initial
Certificate Balance of
$ _____.
----------------------
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
Dated:______________
-
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity but or not in its individual capacity but
solely as Owner Trustee solely as Owner Trustee
By: _______________________ By: WILMINGTON TRUST COMPANY
Responsible Officer as Authenticating Agent
By: ________________________
Responsible Officer
The Trust was created pursuant to a Trust Agreement, dated as of
August 5, 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 August 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 September 16, 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 2002-3
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 Initial Pool Balance.
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 2002-3
This Certificate of Trust of MMCA AUTO OWNER TRUST 2002-3 (the
"Trust") is being duly executed and filed by the Undersigned as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is MMCA AUTO
OWNER TRUST 2002-3.
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 2002-3 (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 August 5, 2002 relating to the Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act 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 2002-3,
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 2002-3 (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 August 5, 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 2002-3
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 2002-3 (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 August 5, 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:
--------
[* minimum of $1,000,000]
