Exhibit 4.1
-----------
===========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
MMCA AUTO RECEIVABLES TRUST,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of December 1, 2001
===========================================================================
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........................................13
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.......................................14
Section 5.4 No Segregation of Monies; No Interest...................14
Section 5.5 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others..............14
Section 5.6 Signature on Returns; Tax Matters Partner...............14
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE...........................15
Section 6.1 General Authority.......................................15
Section 6.2 General Duties..........................................15
Section 6.3 Action upon Instruction.................................15
Section 6.4 No Duties Except as Specified in this Agreement
or in Instructions...................................16
Section 6.5 Restrictions............................................16
ARTICLE VII - REGARDING THE OWNER TRUSTEE....................................17
Section 7.1 Acceptance of Trusts and Duties.........................17
Section 7.2 Furnishing of Documents.................................18
Section 7.3 Representations and Warranties..........................18
Section 7.4 Reliance; Advice of Counsel.............................18
Section 7.5 Not Acting in Individual Capacity.......................19
Section 7.6 Owner Trustee Not Liable for Certificates
or Receivables.......................................19
Section 7.7 Owner Trustee May Own Certificates and Notes............19
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE.................................19
Section 8.1 Owner Trustee's Fees and Expenses.......................19
Section 8.2 Indemnification.........................................19
Section 8.3 Payments to the Owner Trustee...........................20
ARTICLE IX - TERMINATION.....................................................20
Section 9.1 Termination of Trust Agreement..........................20
Section 9.2 Prepayment of the Certificates..........................21
ARTICLE X - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...........22
Section 10.1 Eligibility Requirements for Owner Trustee..............22
Section 10.2 Resignation or Removal of Owner Trustee.................22
Section 10.3 Successor Owner Trustee.................................23
Section 10.4 Merger or Consolidation of Owner Trustee................23
Section 10.5 Appointment of Co-Trustee or Separate Trustee...........23
ARTICLE XI - MISCELLANEOUS...................................................24
Section 11.1 Supplements and Amendments..............................24
Section 11.2 No Legal Title to Owner Trust Estate
in Certificateholders................................26
Section 11.3 Limitation on Rights of Others..........................26
Section 11.4 Notices.................................................26
Section 11.5 Severability............................................26
Section 11.6 Separate Counterparts...................................27
Section 11.7 Successors and Assigns..................................27
Section 11.8 Covenants of the Depositor..............................27
Section 11.9 No Petition; Subordination; Claims Against Depositor....27
Section 11.10 No Recourse.............................................28
Section 11.11 Headings................................................28
Section 11.12 Governing Law...........................................28
EXHIBITS
EXHIBIT A Form of Certificate
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Rule 144A Transferor Certificate
EXHIBIT D Form of Investment Letter C Qualified Institutional Buyer
EXHIBIT E Form of Investment Letter C Institutional Accredited Investor
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 1,
2001 (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, a Delaware business trust, as depositor (the "Depositor"),
having its principal executive office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; 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 ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, the parties hereto intend to amend and restate that
certain Trust Agreement, dated as of October 17, 2001 between the Depositor
and the Owner Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Depositor and
the Owner Trustee hereby agree as follows:
ARTICLE I - DEFINITIONS
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein
are defined in Appendix A to the Indenture (the "Indenture"), dated as of
December 1, 2001, between the Trust, as issuer, and Bank of Tokyo-Mitsubishi
Trust Company, as 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 2001-4," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments
on behalf of the Trust and ▇▇▇ and be sued.
Section 2.2 OFFICE. The office of the Trust shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address in
the State of Delaware as the Owner Trustee may designate by written notice to
the Certificateholders and the Depositor.
Section 2.3 PURPOSES AND POWERS. (a) The purpose of the Trust is,
and the Trust shall have the power and authority, to engage solely in the
following activities:
(i) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes upon the
written order of the Depositor;
(ii) 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;
(iii) with the proceeds of the sale of the Notes to fund the
Reserve Account and the Yield Supplement Account, to pay the
organizational, start-up and transactional expenses of the Trust, and
to pay the balance to the Depositor pursuant to the Sale and Servicing
Agreement;
(iv) to pay interest on and principal of the Notes and
distributions on the Certificates;
(v) 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;
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) 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
(viii) 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 October 17, 2001, 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 Trust's rights under the Interest Rate
Swap Agreements and other assets held by the Trust, the partners of the
partnership being the Certificateholders and the Notes constituting
indebtedness of the partnership. The parties agree that, unless otherwise
required by the appropriate tax authorities, the Trust will file or cause to
be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust either as a nonentity or as
a partnership for such tax purposes. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and
in the 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 Treas. Reg. ss. 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) amounts paid to the Depositor pursuant to Sections 4.1(e),
4.7(a) and 4.7(b) of the Sale and Servicing Agreement or clause (i) of the
fourth paragraph of Section 5.1(a) of the Sale and Servicing Agreement for
such year (or other period) shall be treated as a guaranteed payment within
the meaning of Section 707(c) of the Code; 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
▇.▇.▇.▇▇. 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 under the Securities Act and (x)
the transferor executes and delivers to the Trust and the Certificate
Registrar a Rule 144A transferor certificate substantially in the form
attached as Exhibit 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 Treas. Reg. 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 or Swap Counterparty is
required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or Swap Counterparty is not
required and such amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement or the Administration Agreement, except to cure any
ambiguity or to amend or supplement any provision in a manner or add any
provision that would not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent for the Notes or Indenture Trustee or pursuant to
this Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent for the Notes or Indenture
Trustee or Certificate Registrar of its obligations under the Indenture or
this Agreement, as applicable.
Section 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee may not, except upon the occurrence of an Event of
Servicing Termination subsequent to the payment in full of the Notes and in
accordance with the written direction of Certificateholders holding not less
than a majority of the aggregate Certificate Balance, (a) remove the Servicer
under the Sale and Servicing Agreement pursuant to Article VIII thereof, (b)
appoint a successor Servicer pursuant to Article VIII of the Sale and
Servicing Agreement, (c) remove the Administrator under the Administration
Agreement pursuant to Section 8 thereof, (d) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement or (e)
sell the Receivables after the termination of the Indenture, except as
expressly provided in the Basic Documents.
Section 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust unless the Notes
have been paid in full and each Certificateholder approves of such
commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
Section 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the other Basic Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
Section 4.5 MAJORITY CONTROL. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less
than a majority of the Certificate Balance. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to
this Agreement shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Certificate Balance at the time of
the delivery of such notice.
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT.
Pursuant to Section 4.1(e) of the Sale and Servicing Agreement, there has
been established and there shall be maintained a segregated trust account in
the name of the Owner Trustee which shall be designated as the "Certificate
Distribution Account." The Certificate Distribution Account shall be held in
trust in the name of the Owner Trustee for the benefit of the
Certificateholders. Except as expressly provided in Section 3.9, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee. All monies deposited from time to time in the
Certificate Distribution Account pursuant to the Sale and Servicing Agreement
or the Indenture shall be applied as provided in this Agreement and the Sale
and Servicing Agreement or the Indenture.
Section 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Payment Date, the Owner Trustee (if other than the
Paying Agent) shall, based on the information contained in the Servicer's
Certificate delivered on the relevant Determination Date pursuant to Section
3.9 of the Sale and Servicing Agreement, transfer the amount deposited in the
Certificate Distribution Account pursuant to Section 2.8(a) of the Indenture
on such Payment Date to the Paying Agent, or the Paying Agent, based upon
such information, shall withdraw from the Certificate Distribution Account,
for distribution to the Certificateholders pro rata based on the outstanding
principal balance of the Certificates funds available therein.
(b) On each Payment Date, the Owner Trustee shall, or shall cause
the Paying Agent to, send to each Certificateholder the statement provided to
the Owner Trustee by the Servicer pursuant to Section 4.9 of the Sale and
Servicing Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.2. The Owner Trustee and each Paying Agent is
hereby authorized and directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any such
withholding tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the Trust
and remitted to the appropriate taxing authority. If there is a possibility
that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Owner Trustee may, in its
sole discretion, withhold such amounts in accordance with this paragraph (d).
In the event that a Certificateholder wishes to apply for a refund of any
such withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
Section 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of such Holder at a bank or other entity having appropriate facilities
therefor, if (i) such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date, or (ii) such Certificateholder is the
Depositor or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register. Notwithstanding
the foregoing, the final distribution in respect of any Certificate (whether
on the Certificateholders' Final Scheduled Payment Date or otherwise) will be
payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by the Owner Trustee pursuant to
Section 3.8.
Section 5.4 No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law, the
Indenture or the Sale and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and the Owner Trustee shall
not be liable for any interest thereon.
Section 5.5 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others. The Owner Trustee shall, based on
information provided by the Depositor, (a) maintain (or cause to be
maintained) the books of the Trust on the basis of a fiscal year ending
December 31 and based on the accrual method of accounting, (b) deliver to
each Certificateholder, as may be required by the Code and applicable
Treasury Regulations, such information as may be required (including Schedule
K-1) to enable each Certificateholder to prepare its Federal and state income
tax returns, (c) file such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065), and make such elections as
may from time to time be required or appropriate under any applicable state
or Federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as a partnership for Federal income tax purposes,
(d) cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.2(c) with respect to income or distributions to
Certificateholders. The Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Receivables. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
The Owner Trustee may satisfy its obligations with respect to
this Section 5.5 by retaining, at the expense of the Depositor, a firm of
independent public accountants (the "Accountants") chosen by the Depositor
which shall perform the filing obligations of the Owner Trustee hereunder.
The Accountants will provide prior to [ ], 2002, a letter in form and
substance satisfactory to the Owner Trustee as to whether any Federal tax
withholding on Certificates is then required and, if required, the procedures
to be followed with respect thereto to comply with the requirements of the
Code. The Accountants shall be required to update the letter in each instance
that any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required. The Owner
Trustee shall be deemed to have discharged its obligations pursuant to this
Section upon its retention of the Accountants, and the Owner Trustee shall
not have any liability with respect to the default or misconduct of the
Accountants.
Section 5.6 SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a) The
Depositor, as general partner for income tax purposes, shall sign, on behalf
of the Trust, the tax returns of the Trust.
(b) The Depositor shall be designated the "tax matters partner"
of the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1 GENERAL AUTHORITY. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is to be a party
and any amendment or other agreement, in each case, in such form as the
Depositor shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof and the Depositor's execution of this Agreement, and to
direct the Indenture Trustee to authenticate and deliver Notes in the
aggregate principal amount of $[ ] (comprised of $[ ] in aggregate principal
amount of Class A-1 Notes, $[ ] in aggregate principal amount of Class A-2
Notes, $[ ] in aggregate principal amount of Class A-3 Notes, $[ ] in
aggregate principal amount of Class A-4 Notes and $[ ] in aggregate principal
amount of Class B Notes). In addition to the foregoing, the Owner Trustee is
authorized to take all actions required of the Trust pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to time to take
such action on behalf of the Trust as is permitted by the Basic Documents and
which the Servicer or the Administrator recommends with respect to the Basic
Documents, except to the extent that this Agreement expressly requires the
consent of Certificateholders for such action.
Section 6.2 GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the other Basic Documents to
which the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the lien of the Indenture and in accordance
with the provisions of this Agreement and the other Basic Documents.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator 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 ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall
deem to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten 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
(6) months after the date specified in the above mentioned written notice,
the Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates, respectively, for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice all the Certificates shall not have
been surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders, as the case may be, concerning surrender of
their Certificates as the case may be, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement.
Subject to applicable escheat laws, any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
Depositor.
(d) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing
a certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
Section 9.2 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 ten 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 ten 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 or the Swap Counterparties (if any Interest Rate Swap
Agreements are then in effect), to: (i) cure any ambiguity, to revise,
correct or supplement any provisions herein, (ii) enable the Trust to avoid
becoming a member of MMCA's consolidated group under GAAP or (iii) enable the
Transferor or any Affiliate of the Transferor or any of their Affiliates to
otherwise comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; provided, however, that such
action shall not: (x) adversely affect the rights or obligations of any Swap
Counterparty under the Interest Rate Swap Agreements or impair the ability of
the Trust to fully perform any of its obligations under the Interest Rate
Swap Agreements, (y) as evidenced by an Opinion of Counsel satisfactory to
the Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder (unless each
such Holder has consented thereto), or (z) 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, (ii) the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Balance
and (iii) a Swap Counterparty to the extent such amendment adversely affects
the rights or obligations of such Swap Counterparty or modifies or impairs
the ability of the Trust to fully perform any of its obligations under the
related Interest Rate Swap Agreement, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment shall
(i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of
payments on Receivables or distributions that are required to be made on any
Note or Certificate, or change any Note Interest Rate, or (ii) reduce the
aforesaid percentage of the principal amount of the then outstanding Notes
and the Certificate Balance required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes and
Certificates affected thereby or (iii) adversely affect the ratings of any
Class of Notes by the Rating Agencies without the consent, respectively, of
holders of Notes evidencing not less than 66 2/3% of the aggregate principal
amount of the then outstanding Notes of such Class or (iv) amend the
activities of the Trust as permitted in Section 2.3; and provided further
that an Opinion of Counsel shall be furnished to the Indenture Trustee and
the Owner Trustee to the effect that such amendment (A) will not materially
adversely affect the Federal or any Applicable Tax State income or franchise
taxation of any outstanding Note or Certificate, or any Holder thereof and
(B) will not cause the Trust to be taxable as a corporation for Federal or
any Applicable Tax State income or franchise tax purposes. Any Swap
Counterparty's consent will be deemed to have been given if such Swap
Counterparty does not object in writing within ten Business Days of receipt
of a written request for such consent.
(c) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder, the
Indenture Trustee, each Swap Counterparty (to the extent the related Interest
Rate Swap Agreement is in effect) and each of the Rating Agencies.
(d) It shall not be necessary for the consent of
Certificateholders, the Noteholders, the Swap Counterparties 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 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 (9) months following the commencement of such
litigation and continuing until such litigation is dismissed or otherwise
terminated (and, if such litigation has resulted in a final judgment against
the Depositor, such judgment has been satisfied), the Depositor shall not pay
any dividend to MMCA, or make any distribution on or in respect of its
capital stock to MMCA, or repay the principal amount of any indebtedness of
the Depositor held by MMCA, unless (i) after giving effect to such payment,
distribution or repayment, the Depositor's liquid assets shall not be less
than the amount of actual damages claimed in such litigation or (ii) the
Rating Agency Condition shall have been satisfied with respect to any such
payment, distribution or repayment. The Depositor will not at any time
institute against the Trust any bankruptcy proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
Section 11.9 NO PETITION; 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
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 1111(b)(1)(A)(i) to secured creditors to
receive the treatment afforded by Title ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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,
as Depositor
By:_______________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:_______________________________________
Name:
Title:
EXHIBIT A
---------
NUMBER $_____________
R-1
THIS CERTIFICATE MAY NOT BE
TRANSFERRED BY A STOCK POWER
BUT ONLY AS SET FORTH BELOW.
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE
TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST
$1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE
TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE
FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT REFERRED TO BELOW AND (B)
THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER
SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT
AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER
SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO THE TRUST AGREEMENT OR (B)
THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION,
EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE
WITHHELD FOR ANY REASON OR FOR NO REASON).
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH
IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
MMCA AUTO OWNER TRUST 2001-4
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined
below, which property includes a pool of retail installment sale contracts
secured by new and used automobiles and light-duty trucks sold from time to
time to MMCA Auto Receivables Trust by Mitsubishi Motors Credit of America,
Inc. and sold by MMCA Auto Receivables Trust 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 or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT MMCA AUTO RECEIVABLES TRUST is the registered
owner of a ____________________________ DOLLARS nonassessable, fully paid,
beneficial interest in Certificates of MMCA Auto Owner Trust 2001-4 (the
"Trust") formed by MMCA Auto Receivables Trust, 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 or not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By: _______________________ By: WILMINGTON TRUST COMPANY
Responsible Officer as Authenticating Agent
By: ________________________
Responsible Officer
The Trust was created pursuant to a Trust Agreement, dated as of
October 17, 2001 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Trust Agreement"), by and between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement
or the Sale and Servicing Agreement, dated as of December 1, 2001 (as
amended, supplemented or otherwise modified and in effect from time to time,
the "Sale and Servicing Agreement"), by and among the Trust, the Depositor,
as seller (in such capacity, the "Seller"), and Mitsubishi Motors Credit of
America, Inc., as servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates
designated as "Asset Backed Certificates" (herein called the "Certificates").
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. The property of the Trust includes (i) a pool of retail
installment sale contracts for new and used automobiles and light-duty trucks
and certain rights and obligations thereunder (the "Receivables"), (ii) with
respect to Actuarial Receivables, monies due thereunder after the Cutoff Date
(including Payaheads) and, with respect to Simple Interest Receivables,
monies received thereunder after the Cutoff Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Trust in the Financed Vehicles;
(iv) all rights to receive proceeds with respect to the Receivables from
claims on any physical damage, theft, credit life or disability insurance
policies covering the Financed Vehicles or Obligors; (v) all rights to
receive proceeds with respect to the Receivables from recourse to Dealers
thereon pursuant to the Dealer Agreements; (vi) all of the Seller's rights to
the Receivable Files; (vii) the Trust Accounts and all amounts, securities,
financial assets, investments and other property deposited in or credited to
any of the foregoing and all proceeds thereof; (viii) all of the rights under
the Sale and Servicing Agreement and the Yield Supplement Agreement, (ix) all
of the rights under the Purchase Agreement, including the right of the Seller
to cause MMCA to repurchase Receivables from the Seller; (x) all payments and
proceeds with respect to the Receivables held by the Servicer; (xi) all
property (including the right to receive Liquidation Proceeds and Recoveries
and Financed Vehicles and the proceeds thereof acquired by the Trust pursuant
to the terms of the Final Payment Receivables), guarantees and other
collateral securing a Receivable (other than a Receivable repurchased by the
Servicer or purchased by the Seller); (xii) all rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; (xiii) the Issuer's rights under
the Interest Rate Swap Agreements; and (xiv) all present and future claims,
demands, causes of action and choses in action in respect of any or all of
the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing. The rights of the Trust in the foregoing
property of the Trust (other than the Certificate Distribution Account and
the proceeds thereof) have been pledged to the Indenture Trustee to secure
the payment of the Notes and payments to the Swap Counterparties pursuant to
the Interest Rate Swap Agreements.
Under the Trust Agreement, there will be distributed on the
fifteenth day of each month or, if such fifteenth day is not a Business Day,
the next Business Day (each, a "Payment Date"), commencing January 15, 2002,
to the Person in whose name this Certificate is registered at the close of
business on the fourteenth day of such calendar month (the "Record Date")
such Certificateholder's percentage interest in the amount to be distributed
to Certificateholders on such Payment Date; provided, however, that principal
will be distributed to the Certificateholders on each Payment Date (to the
extent of funds remaining after the Total Servicing Fee, all required
payments on Notes and any required deposit to the Reserve Account and the
Supplemental Reserve Account have been made on such Payment Date).
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default under the Indenture which has resulted in
an acceleration of the Notes or following certain events of insolvency with
respect to the Depositor, no distributions of principal or interest will be
made on the Certificates until all the Notes have been paid in full.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Swap Counterparties 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 2001-4
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: ___________________________________
Responsible Officer
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Administrator, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein, in the Trust Agreement or in the other Basic Documents.
This Certificate has been executed by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Trust,
and in no event shall Wilmington Trust Company in its individual capacity
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Trust hereunder, as to all of which recourse
shall be solely to the assets of the Trust. In addition, this Certificate is
not guaranteed by any governmental agency or instrumentality and is limited
in right of payment to certain collections with respect to the Receivables
(and certain other amounts), all as more specifically set forth herein and in
the Sale and Servicing Agreement. The Trust will furnish, upon the request of
any holder of a Certificate, such information as is specified in paragraph
(d)(4) of Rule 144A of the Securities Act with respect to the Trust. A
registration statement, which includes the Trust Agreement as an exhibit
thereto, has been filed with the Securities and Exchange Commission with
respect to the Notes of the Trust issued concurrently with this Certificate.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under
the Trust Agreement at any time by the Depositor and the Owner Trustee with
the consent of the Holders of the Notes and the Holders of the Certificates
each voting as a class evidencing not less than a majority of the principal
amount of the then outstanding Notes and the Certificate Balance,
respectively, and the consent of the Swap Counterparties. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and on all future Holders of this Certificate and of any Certificate issued
upon the registration of Transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Swap Counterparties or the Holders
of any of the Certificates.
This Certificate may be Transferred only under the circumstances
described in Section 3.4 of the Trust Agreement, which, among other things,
requires that each prospective transferee represent in writing in the form
provided as an exhibit to the Trust Agreement that it will not acquire or
Transfer the Certificates through an established securities market, is not
and will not become, except in certain circumstances, a partnership,
Subchapter S corporation or grantor trust for U.S. Federal income tax
purposes, and will not acquire the Certificates for or on behalf of an
employee benefit plan, except in certain limited circumstances. Any attempted
Transfer in contravention of the restrictions and conditions of Section 3.4
of the Trust Agreement shall be null and void. As provided in the Trust
Agreement, the Transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
Transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in Wilmington, Delaware, accompanied by the written
representations required by the Trust Agreement and, if the Depositor has
consented to such transfer, a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof
or such Holder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is
Wilmington Trust Company.
Except for Certificates issued to the Depositor, the Certificates
are issuable only as registered Certificates without coupons in denominations
of $1,000,000 and in integral multiples of $1,000 in excess thereof.
Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of Transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to
the Noteholders, the Swap Counterparties and the Certificateholders of all
amounts required to be paid to them pursuant to the Indenture, the Trust
Agreement, the Sale and Servicing Agreement and the Interest Rate Swap
Agreements, 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
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 2001-4
This Certificate of Trust of MMCA AUTO OWNER TRUST 2001-4 (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,
ss. 3801 et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is MMCA
AUTO OWNER TRUST 2001-4.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
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
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Wilmington Trust Company
as Certificate Registrar
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 2001-4 (the "Trust").
The undersigned is the holder of the Certificates and with this
notice hereby deposits with the Owner Trustee $________[*] in denomination of
Certificates and requests that Certificates in the same aggregate
denomination be issued, executed and authenticated and registered to the
purchaser on , , as specified in the Amended and Restated Trust Agreement
dated as of December 1, 2001 relating to the Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
___________________
[* minimum of $1,000,000]
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the Act
provided by Rule 144A and, (iii) if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, (A) each such account is a qualified institutional buyer and (B) the
purchaser is acquiring Certificates for its own account or for one or more
institutional accounts for which it is acting as fiduciary or agent in a
minimum amount equivalent to at least $1,000,000 for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By: ______________________________
Name:
Title:
EXHIBIT D
---------
FORM OF INVESTMENT LETTER - QUALIFIED INSTITUTIONAL BUYER
[Date]
MMCA Auto Owner Trust 2001-4,
as Issuer
Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 2001-4 (the
"Trust"), a trust formed by MMCA Auto Receivables Trust (the "Depositor" or
"Seller"), we confirm that:
1. We agree to be bound by the restrictions and conditions set
forth in the Amended and Restated Trust Agreement dated as of December 1,
2001 (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 C INSTITUTIONAL ACCREDITED INVESTOR
[Date]
MMCA Auto Owner Trust 2001-4
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Wilmington Trust Company,
as Certificate Registrar
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 2001-4 (the
"Trust"), a trust formed by MMCA Auto Receivables Trust (the "Depositor" or
"Seller"), we confirm that:
1. We agree to be bound by the restrictions and conditions set
forth in the Amended and Restated Trust Agreement dated as of December 1,
2001 (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: