Exhibit 4.3
===============================================================================
INDENTURE
between
MMCA AUTO OWNER TRUST 2002-5,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of December 1, 2002
___________________________
$36,300,000 1.4100% Class A-1 Asset Backed Notes
$110,000,000 Floating Rate Class A-2 Asset Backed Notes
$89,000,000 Floating Rate Class A-3 Asset Backed Notes
$80,575,000 Floating Rate Class A-4 Asset Backed Notes
$17,271,000 Floating Rate Class B Asset Backed Notes
$24,376,000 Floating Rate Class C Asset Backed Notes
___________________________
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CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
310 (a)(1)............................................................6.11
(a)(2)............................................................6.11
(a)(3)............................................................6.10
(a)(4)...........................................................N.A.2
(a)(5)............................................................6.11
(b)..........................................................6.8; 6.11
(c)...............................................................N.A.
311 (a)...............................................................6.12
(b)...............................................................6.12
(c)...............................................................N.A.
312 (a)..................................................................7.1
(b)...............................................................7.2
(c)...............................................................7.2
313 (a)...............................................................7.4
(b)(1)............................................................7.4
(b)(2)......................................................7.4; 11.5
(c)...............................................................7.4
(d)...............................................................7.3
314 (a)...............................................................7.3
(b).............................................................11.15
(c)(1)...........................................................11.1
(c)(2)...........................................................11.1
(c)(3)...........................................................11.1
(d)..............................................................11.1
(e)..............................................................11.1
(f)..............................................................11.1
315 (a)...............................................................6.1
(b).........................................................6.5; 11.5
(c)...............................................................6.1
(d)...............................................................6.1
(e)...............................................................5.13
316 (a) (last sentence)................................................1.1
(a)(1)(A).........................................................5.11
(a)(1)(B).........................................................5.12
(a)(2)............................................................N.A.
(b)...............................................................5.7
(c)...............................................................N.A
317 (a)(1)............................................................5.3
(a)(2)............................................................5.3
(b)...............................................................3.3
318 (a)..............................................................11.7
_______________________
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE................................................................2
Section 1.1 Definitions........................................................................2
Section 1.2 Incorporated by Reference of Trust Indenture Act...................................2
ARTICLE II - THE NOTES................................................................................................3
Section 2.1 Form...............................................................................3
Section 2.2 Execution, Authentication and Delivery.............................................3
Section 2.3 Temporary Notes....................................................................4
Section 2.4 Tax Treatment......................................................................4
Section 2.5 Registration; Registration of Transfer and Exchange................................4
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.........................................5
Section 2.7 Persons Deemed Owner...............................................................6
Section 2.8 Payments...........................................................................6
Section 2.9 Cancellation......................................................................10
Section 2.10 Release of Collateral.............................................................10
Section 2.11 Book-Entry Notes..................................................................11
Section 2.12 Notices to Clearing Agency........................................................11
Section 2.13 Definitive Notes..................................................................11
Section 2.14 Authenticating Agents.............................................................12
ARTICLE III - COVENANTS..............................................................................................12
Section 3.1 Payment Covenant..................................................................12
Section 3.2 Maintenance of Office or Agency...................................................13
Section 3.3 Money for Payments To Be Held in Trust............................................13
Section 3.4 Existence.........................................................................14
Section 3.5 Protection of Trust Estate........................................................14
Section 3.6 Opinions as to Trust Estate.......................................................15
Section 3.7 Performance of Obligations; Servicing of Receivables..............................15
Section 3.8 Negative Covenants................................................................17
Section 3.9 Annual Statement as to Compliance.................................................17
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust Assets........17
Section 3.11 No Other Business.................................................................18
Section 3.12 No Borrowing......................................................................18
Section 3.13 Servicer's Obligations............................................................18
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.................................18
Section 3.15 Capital Expenditures..............................................................18
Section 3.16 Further Instruments and Acts......................................................18
Section 3.17 Restricted Payments...............................................................18
Section 3.18 Notice of Events of Default.......................................................18
Section 3.19 Removal of Administrator..........................................................19
Section 3.20 Calculation Agent.................................................................19
ARTICLE IV - SATISFACTION AND DISCHARGE..............................................................................19
Section 4.1 Satisfaction and Discharge of Indenture...........................................19
Section 4.2 Satisfaction and Discharge of the Notes...........................................20
Section 4.3 Application of Trust Money........................................................21
Section 4.4 Repayment of Monies Held by Paying Agent..........................................21
ARTICLE V - REMEDIES.................................................................................................21
Section 5.1 Events of Default.................................................................22
Section 5.2 Acceleration of Maturity; Rescission and Annulment................................22
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.........23
Section 5.4 Remedies; Priorities..............................................................25
Section 5.5 Optional Preservation of the Receivables..........................................26
Section 5.6 Limitation of Suits...............................................................26
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest.............27
Section 5.8 Restoration of Rights and Remedies................................................27
Section 5.9 Rights and Remedies Cumulative....................................................27
Section 5.10 Delay or Omission Not a Waiver....................................................27
Section 5.11 Control by Noteholders............................................................28
Section 5.12 Waiver of Past Default............................................................28
Section 5.13 Undertaking for Costs.............................................................28
Section 5.14 Waiver of Stay or Extension Laws..................................................29
Section 5.15 Action on Notes...................................................................29
Section 5.16 Performance and Enforcement of Certain Obligations................................29
ARTICLE VI - THE INDENTURE TRUSTEE...................................................................................30
Section 6.1 Duties of Indenture Trustee.......................................................30
Section 6.2 Rights of Indenture Trustee.......................................................31
Section 6.3 Individual Rights of Indenture Trustee............................................32
Section 6.4 Indenture Trustee's Disclaimer....................................................32
Section 6.5 Notice of Defaults................................................................32
Section 6.6 Reports by Indenture Trustee to Holders...........................................32
Section 6.7 Compensation and Indemnity........................................................33
Section 6.8 Replacement of Indenture Trustee..................................................33
Section 6.9 Successor Indenture Trustee by Merger.............................................34
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.................34
Section 6.11 Eligibility; Disqualification.....................................................35
Section 6.12 Preferential Collection of Claims Against Issuer..................................36
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.............................36
Section 6.14 Interest Rate Swap Provisions.....................................................36
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING..........................................................................38
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders............38
Section 7.2 Preservation of Information; Communications to Noteholders........................38
Section 7.3 Reporting by Issuer...............................................................38
Section 7.4 Reporting and Notices by Indenture Trustee........................................39
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..................................................................39
Section 8.1 Collection of Money...............................................................39
Section 8.2 Trust Accounts....................................................................39
Section 8.3 General Provisions Regarding Accounts.............................................40
Section 8.4 Release of Trust Estate...........................................................40
Section 8.5 Opinion of Counsel................................................................41
ARTICLE IX - SUPPLEMENTAL INDENTURES.................................................................................41
Section 9.1 Supplemental Indentures Without Consent of Noteholders............................41
Section 9.2 Supplemental Indentures with Consent of Noteholders...............................43
Section 9.3 Execution of Supplemental Indentures..............................................44
Section 9.4 Effect of Supplemental Indenture..................................................44
Section 9.5 Conformity with Trust Indenture Act...............................................45
Section 9.6 Reference in Notes to Supplemental Indentures.....................................45
ARTICLE X - REDEMPTION OF NOTES......................................................................................45
Section 10.1 Redemption........................................................................45
Section 10.2 Form of Redemption Notice.........................................................45
Section 10.3 Notes Payable on Redemption Date..................................................46
ARTICLE XI - MISCELLANEOUS...........................................................................................46
Section 11.1 Compliance Certificates and Opinions, etc.........................................46
Section 11.2 Form of Documents Delivered to Indenture Trustee..................................47
Section 11.3 Acts of Noteholders...............................................................48
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies...................48
Section 11.5 Notices to Noteholders; Waiver....................................................50
Section 11.6 Alternate Payment and Notice Provisions...........................................50
Section 11.7 Conflict with Trust Indenture Act.................................................50
Section 11.8 Effect of Headings and Table of Contents..........................................51
Section 11.9 Successors and Assigns............................................................51
Section 11.10 Separability......................................................................51
Section 11.11 Benefits of Indenture.............................................................51
Section 11.12 Legal Holiday.....................................................................51
Section 11.13 Governing Law.....................................................................51
Section 11.14 Counterparts......................................................................51
Section 11.15 Recording of Indenture............................................................51
Section 11.16 Trust Obligation..................................................................51
Section 11.17 No Petition; Subordination; Claims Against Seller.................................52
Section 11.18 Inspection........................................................................52
Section 11.19 Employee Benefit Plans............................................................52
SCHEDULES
Schedule of Receivables Schedule A
List of Permitted Investments...........................................................................Schedule I
EXHIBITS
Form of Class A-1 Note............................................................................. Exhibit A-1
Form of Class A-2 Note..............................................................................Exhibit A-2
Form of Class A-3 Note..............................................................................Exhibit A-3
Form of Class A-4 Note..............................................................................Exhibit A-4
Form of Class B Note............................................................................... Exhibit B
Form of Class C Note............................................................................... Exhibit C
Form of Opinion of Counsel Pursuant to Section 3.6(a)...............................................Exhibit D
ANNEXES
Form of Retail Installment Sale Contract.............................................................Annex A
APPENDICES
Definitions and Usage............................................................................... Appendix A
INDENTURE, dated as of December 1, 2002 (as amended, supplemented or
otherwise modified and in effect from time to time, this "Indenture"), between
MMCA AUTO OWNER TRUST 2002-5, a Delaware statutory trust (the "Issuer"), and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a
New York banking corporation, as
trustee for the benefit of the Noteholders and not in its individual capacity
(in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuer's 1.4100% Class
A-1 Asset Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3 Asset Backed
Notes (the "Class A-3 Notes"), Floating Rate Class A-4 Asset Backed Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Class A Notes"), Floating Rate Class B Asset
Backed Notes (the "Class B Notes") and Floating Rate Class C Asset Backed
Notes (the "Class C Notes" and, together with the Class A Notes and the Class
B Notes, the "Notes"), and the Swap Counterparty:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing
Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of
the Issuer's right, title and interest in, to and under, whether now owned or
existing or hereafter acquired or arising:
(a) the Receivables;
(b) with respect to Receivables that are Actuarial Receivables,
monies due thereunder after the Cutoff Date (including Payaheads) and, with
respect to Receivables that are Simple Interest Receivables, monies received
thereunder after the Cutoff Date;
(c) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Issuer in
such Financed Vehicles;
(d) 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 related Financed Vehicles or related Obligors;
(e) all rights to receive proceeds with respect to the Receivables
from recourse to Dealers thereon pursuant to the Dealer Agreements;
(f) all of the Issuer's rights to the Receivable Files that relate to
the Receivables;
(g) 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;
(h) all rights under the Sale and Servicing Agreement and the Yield
Supplement Agreement;
(i) all rights under the Purchase Agreement, including the right of
the Seller to cause MMCA to repurchase Receivables from the Seller;
(j) all payments and proceeds with respect to the Receivables held by
the Servicer;
(k) all property (including the right to receive Liquidation Proceeds
and Recoveries and Financed Vehicles and the proceeds thereof acquired by the
Issuer pursuant to the terms of a Receivable that is a Final Payment
Receivable), guarantees and other collateral securing a Receivable (other than
a Receivable purchased by the Servicer or repurchased by the Seller);
(l) 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;
(m) all of the Issuer's rights in the Interest Rate Swap Agreement;
and
(n) 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
(collectively, the "Collateral").
The foregoing Grants are made in trust to secure (a) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture, and (b) the payment of amounts payable to the Swap
Counterparty under the Interest Rate Swap Agreement.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders
of the Notes and the Swap Counterparty, acknowledges such Grant, accepts the
trusts under this Indenture in accordance with the provisions of this
Indenture and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Holders of the Notes
and the Swap Counterparty may be adequately and effectively protected.
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 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 hereto, which also contains rules as
to usage that shall be applicable herein.
Section 1.2 Incorporated by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
ARTICLE II - THE NOTES
Section 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes,
together with the Indenture Trustee's Certificates of Authentication, shall be
in substantially the form set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇,
▇▇▇▇▇▇▇ ▇-▇, Exhibit B and Exhibit C, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, B and C hereto
are part of the terms of this Indenture and are incorporated herein by
reference.
Section 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by any of its
Responsible Officers. The signature of any such Responsible Officer on the
Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of individuals
who were at any time Responsible Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$36,300,000, Class A-2 Notes for original issue in an aggregate principal
amount of $110,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $89,000,000, Class A-4 Notes for original issue in an
aggregate principal amount of $80,575,000, Class B Notes for original issue in
an aggregate principal amount of $17,271,000 and Class C Notes for original
issue in an aggregate principal amount of $24,376,000. The aggregate principal
amounts of Notes outstanding at any time may not exceed those respective
amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication. The
Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to Section
2.13, the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a), the
Issuer shall cause Definitive Notes to be prepared without unreasonable delay.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Issuer shall execute, and the Indenture Trustee
shall authenticate and deliver in exchange therefor, a like principal amount
of Definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
Section 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The Issuer,
by entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local income
and franchise tax purposes as indebtedness of the Issuer.
Section 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. Upon any resignation of any Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, (i) the Issuer shall give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location and any change in the location, of the Note Register, (ii) the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof and (iii) the Indenture Trustee
shall have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2, if
the requirements of Section 8-401 of the Relevant UCC are met, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denomination, of a like aggregate principal amount. The Indenture
Trustee may rely upon the Administrator with respect to the determination of
whether the requirements of Section 8-401 of the Relevant UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate, and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making such
exchange is entitled to receive. The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.5 notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
(i) Each Person to whom a Note is transferred will be required to
represent, in the case of a Definitive Note, or deemed to represent, in the
case of a Book-Entry Note, that (x) such Person is not an employee benefit
plan, as described in Section 3(3) of ERISA, or a plan, as defined in Section
4975(E)(1) of the Code, that is subject to Title I of ERISA or to Section 4975
of the Code, a government plan subject to any state or local law similar to
Title I of ERISA or Section 4975 of the Code, or a Person investing on behalf
of or with "plan assets" of such a plan, or (y) the Person's acquisition,
holding and disposition of the Note are and will be eligible for relief under
a prohibited transaction exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice
to the Issuer, the Note Registrar or the Indenture Trustee that such Note has
been acquired by a protected purchaser, and provided that the requirements of
Section 8-405 of the Relevant UCC are met, the Issuer shall execute, and upon
its request the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days of the Indenture Trustee's receipt of evidence to its
satisfaction of such destruction, loss or theft shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note
of the same Class, the Issuer may pay such destroyed, lost or stolen Note when
so due or payable or upon the Redemption Date without surrender thereof. The
Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-405 of the Relevant UCC
are met. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note
was delivered or any assignee of such Person, except a protected purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest,
if any, on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions from
the Servicer pursuant to Section 4.6(c) of the Sale and Servicing Agreement,
the Indenture Trustee shall withdraw the Total Available Funds on deposit in
the Collection Account for the related Collection Period and make the
following payments and deposits for such Payment Date in the following order
of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net Swap Payments
then due under the Interest Rate Swap Agreement (exclusive of any Swap
Termination Payments);
(iii) with the same priority and ratably, in accordance with the
outstanding balance of the Class A Notes and the amount of any Swap
Termination Payments due and payable by the Issuer to the Swap Counterparty in
respect of the Class A Notes,
(A) to the Note Payment Account, the Accrued Note Interest for the
Class A Notes, and
(B) to the Swap Counterparty, any Swap Termination Payments in
respect of the Class A Notes;
provided, that, if any amounts allocable to the Class A Notes are not needed
to pay interest due on such Notes, such amounts shall be applied to pay the
portion, if any, of any Swap Termination Payments remaining unpaid, pro rata
based on the amount of the Swap Termination Payments, and provided, further,
that if there are not sufficient funds available to pay the entire amount of
the Accrued Note Interest for the Class A Notes, the amounts available shall
be applied to the payment of such interest on the Class A Notes on a pro rata
basis;
(iv) with the same priority and ratably, in accordance with the
outstanding balance of the Class B Notes and the amount of any Swap
Termination Payments due and payable by the Issuer to the Swap Counterparty in
respect of the Class B Notes,
(A) to the Note Payment Account, the Accrued Note Interest for the
Class B Notes, and
(B) to the Swap Counterparty, any Swap Termination Payments in
respect of the Class B Notes;
provided, that, if any amounts allocable to the Class B Notes are not needed
to pay interest due on such Notes, such amounts shall be applied to pay the
portion, if any, of any Swap Termination Payments remaining unpaid, pro rata
based on the amount of the Swap Termination Payments;
(v) with the same priority and ratably, in accordance with the
outstanding balance of the Class C Notes and the amount of any Swap
Termination Payments due and payable by the Issuer to the Swap Counterparty in
respect of the Class C Notes,
(A) to the Note Payment Account, the Accrued Note Interest for the
Class C Notes, and
(B) to the Swap Counterparty, any Swap Termination Payments in
respect of the Class C Notes;
provided, that, if any amounts allocable to the Class C Notes are not needed
to pay interest due on such Notes, such amounts shall be applied to pay the
portion, if any, of any Swap Termination Payments remaining unpaid, pro rata
based on the amount of the Swap Termination Payments;
(vi) to the Note Payment Account, the Principal Distribution Amount;
(vii) to the Reserve Account, the amount, if any, necessary to
reinstate the balance in the Reserve Account up to the Specified Reserve
Balance;
(viii) prior to the payment in full of the aggregate principal
balance of the Notes, to the Note Payment Account, any remaining Total
Available Funds; and
(ix) following the payment in full of the aggregate principal balance
of the Notes, to the Certificate Distribution Account, any remaining Total
Available Funds.
Notwithstanding the foregoing, following the occurrence and during
the continuation of an Event of Default which has resulted in an acceleration
of the Notes, on each Payment Date the Total Available Funds shall be
deposited in the Note Payment Account and applied in accordance with Section
2.8(f).
(b) The principal of each Note shall be payable in installments on
each Payment Date in an aggregate amount (unless the Notes have been
accelerated in accordance with Section 5.2 following the occurrence of an
Event of Default) for all Classes of Notes equal to the Principal Distribution
Amount with respect to such Payment Date. On each Payment Date, unless the
Notes have been accelerated in accordance with Section 5.2 following the
occurrence of an Event of Default, the Issuer shall cause to be paid all
amounts on deposit in the Note Payment Account with respect to the related
Collection Period in the following order of priority:
(i) to the Class A Noteholders, Accrued Note Interest (and, if
amounts on deposit in the Note Payment Account are insufficient for such
purpose, payments shall be made to the Class A Noteholders pro rata in
proportion to the Accrued Note Interest for each Class of Class A Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class C Noteholders, Accrued Note Interest;
(iv) to the Class A-1 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the Class A-1 Notes are paid in full;
(v) following payment in full of the Class A-1 Notes, the Class A
Percentage of the remaining Principal Distribution Amount in reduction of
principal to the Class A-2 Noteholders until the Class A-2 Notes are paid in
full, then to the Class A-3 Noteholders until the Class A-3 Notes are paid in
full, then to the Class A-4 Noteholders until the Class A-4 Notes are paid in
full;
(vi) following payment in full of the Class A-1 Notes, the Class B
Percentage of the remaining Principal Distribution Amount in reduction of
principal to the Class B Noteholders until the Class B Notes are paid in full;
and
(vii) following payment in full of the Class A-1 Notes, the Class C
Percentage of the remaining Principal Distribution Amount in reduction of
principal to the Class C Noteholders until the Class C Notes are paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent not
previously paid, will be due on the Class A-1 Stated Maturity Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid,
will be due on the Class A-2 Stated Maturity Date, the principal amount of the
Class A-3 Notes, to the extent not previously paid, will be due on the Class
A-3 Stated Maturity Date, the principal amount of the Class A-4 Notes, to the
extent not previously paid, will be due on the Class A-4 Stated Maturity Date,
the principal amount of the Class B Notes, to the extent not previously paid,
will be due on the Class B Stated Maturity Date, and the principal amount of
the Class C Notes, to the extent not previously paid, will be due on the Class
C Stated Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes and the Class C Notes shall accrue
interest at the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the
Class A-4 Rate, the Class B Rate and the Class C Rate, respectively, and such
interest shall be due and payable on each Payment Date. Interest on the Notes
shall be calculated on the basis of the actual days elapsed and a 360-day
year. Subject to Section 3.1, any installment of interest or principal, if
any, payable on any Note that is punctually paid or duly provided for by the
Issuer on the applicable Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the Record
Date by check mailed first-class postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that, unless
Definitive Notes have been issued pursuant to Section 2.13, with respect to
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payment shall be made by
wire transfer in immediately available funds to the account designated by such
nominee, and except for the final installment of principal payable with
respect to such Note on a Payment Date or on the related Stated Maturity Date
(and except for the Redemption Price for any Note called for redemption),
which shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.3. The
Issuer shall pay all Accrued Note Interest, including Interest Carryover
Shortfalls, to the Persons who are Noteholders on the Record Date for a
particular Payment Date even if a portion of such Accrued Note Interest
relates to a different Payment Date.
(e) All principal payments on a Class of Notes shall be made pro rata
to the Noteholders entitled thereto. The Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects that the
final installment of principal of and interest on such Note shall be paid.
Such notice shall be mailed or transmitted by facsimile prior to such final
Payment Date and shall specify that such final installment shall be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemption of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(f) Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Holders of Notes representing not less than a
majority of the principal amount of the Notes Outstanding have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2.
On each Payment Date following acceleration of the Notes, all amounts on
deposit in the Note Payment Account shall be paid in the following order of
priority.
(i) first, to the Indenture Trustee for amounts due under Section 6.7
and to the Owner Trustee for amounts due under Sections 8.1 and 8.2 of the
Trust Agreement;
(ii) second, to the Servicer for amounts due and unpaid in respect of
Total Servicing Fees;
(iii) third, to the Swap Counterparty, the amount of the Net Swap
Payments then due under the Interest Rate Swap Agreement (exclusive of any
Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in accordance with
the outstanding principal amount of the Class A Notes and the amount of any
Swap Termination Payments due and payable by the Issuer to the Swap
Counterparty in respect of the Class A Notes, (1) to Noteholders of the Class
A Notes, the Accrued Note Interest ratably in proportion to Accrued Note
Interest for each Class of the Class A Notes, without preference or priority
of any kind, according to the amounts due and payable on the Class A Notes for
interest, and (2) to the Swap Counterparty, any Swap Termination Payments in
respect of the Class A Notes;
(v) fifth, to the Class A-1 Noteholders, the outstanding principal
amount of the Class A-1 Notes as of such Payment Date (prior to giving effect
to any payment of principal on such date) in reduction of principal until the
principal amount of the Class A-1 Notes has been paid in full;
(vi) sixth, to the Class A-2 Noteholders, the Class A-3 Noteholders
and the Class A-4 Noteholders, the outstanding principal amount of the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, respectively, pro rata
in proportion to the respective principal balances of each of such Classes as
of such Payment Date (prior to giving effect to any payment of principal on
such date) in reduction of principal until the principal amount of each of
such Classes has been paid in full;
(vii) seventh, with the same priority and ratably, in accordance with
the outstanding principal amount of the Class B Notes and the amount of any
Swap Termination Payments due and payable by the Issuer to the Swap
Counterparty in respect of the Class B Notes, (1) to Noteholders of the Class
B Notes, the Accrued Note Interest, and (2) to the Swap Counterparty, any Swap
Termination Payments in respect of the Class B Notes;
(viii) eighth, to the Class B Noteholders, the outstanding principal
amount of the Class B Notes as of such Payment Date (prior to giving effect to
any payment of principal on such date) in reduction of principal until the
principal amount of the Class B Notes has been paid in full;
(ix) ninth, with the same priority and ratably, in accordance with
the outstanding principal amount of the Class C Notes and the amount of any
Swap Termination Payments due and payable by the Issuer to the Swap
Counterparty in respect of the Class C Notes, (1) to Noteholders of the Class
C Notes, the Accrued Note Interest, and (2) to the Swap Counterparty, any Swap
Termination Payments in respect of the Class C Notes;
(x) tenth, to the Class C Noteholders, the outstanding principal
amount of the Class C Notes as of such Payment Date (prior to giving effect to
any payment of principal on such date) in reduction of principal until the
principal amount of the Class C Notes has been paid in full; and
(xi) eleventh, to the Certificateholders.
Section 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.9, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Order that they be destroyed or returned to
it, provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
Section 2.10 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt of (i) an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent, if any, provided for in this
Indenture relating to the release of the property from the lien of this
Indenture have been complied with, provided that counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel
in lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates. If the Commission shall issue an
exemptive order under TIA Section 304(d) modifying the Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), the Indenture Trustee
shall release property from the lien of this Indenture in accordance with the
conditions and procedures set forth in such exemptive order.
Section 2.11 Book-Entry Notes. The Notes, upon original issuance,
shall be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to the Indenture Trustee as custodian for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. The Book-Entry Notes shall be registered initially on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner thereof shall receive a definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.13.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture (including
the payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of the Notes, and
shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section 2.11 conflict
with any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement; unless
and until Definitive Notes are issued pursuant to Section 2.13, the initial
Clearing Agency shall make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and interest on
the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the principal amount of the Notes or any Class of
Notes Outstanding, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
or such Class of Notes and has delivered such instructions to the Indenture
Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.13 Definitive Notes. If (i) the Issuer, the Administrator
or the Servicer advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry Notes and the Indenture Trustee or the
Administrator is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or an Event of Servicing
Termination, Note Owners of the Book-Entry Notes representing beneficial
interests aggregating not less than 51% of the principal amount of such Notes
advise the Indenture Trustee and the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of such Note Owners, then the Clearing Agency shall
notify all Note Owners and the Indenture Trustee of the occurrence of such
event and of the availability of Definitive Notes to Note Owners requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Any portion of a Book-Entry Note transferred or exchanged pursuant to this
Section 2.13 shall be executed, authenticated and delivered only in the
minimum denominations and integral multiples set forth in Section 2.2(d). Upon
the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
Section 2.14 Authenticating Agents. The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in
connection with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5
and 2.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
2.14 shall be deemed to be the authentication of Notes "by the Indenture
Trustee."
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Owner Trustee. The
Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Owner
Trustee.
The Administrator agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services. The provisions of
Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III - COVENANTS
Section 3.1 Payment Covenant. The Issuer shall duly and punctually
pay the principal of and interest on, if any, the Notes in accordance with the
terms of the Notes and this Indenture. Amounts properly withheld under the
Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of
New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of any such office or
agency. If, at any time, the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. (a) As provided
in Section 8.2, all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account,
the Reserve Account, the Yield Supplement Account and the Note Payment Account
shall be made on behalf of the Issuer by the Indenture Trustee or by another
Paying Agent, and no amounts so withdrawn from the Collection Account, the
Reserve Account, the Yield Supplement Account and the Note Payment Account for
payments of Notes shall be paid over to the Issuer, except as provided in this
Section 3.3.
(b) On or before each Payment Date and Redemption Date, the Issuer
shall deposit or cause to be deposited in the Note Payment Account an
aggregate sum sufficient to pay the amounts then becoming due under the Notes
and under the Interest Rate Swap Agreement, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons, or otherwise disposed of as
herein provided, and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if at
any time it ceases to meet the standards required to be met by a Paying Agent
at the time of its appointment; and
(v) comply with all requirements of the Code and any state or local
tax law with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by
such Paying Agent, such sums to be held by the Indenture Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Indenture Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
(d) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged
from such trust and be paid to the Issuer on Issuer Request; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of
New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at
the expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States
of America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute (or, in the case of financing statements, authorize) and deliver
all such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee, the Swap Counterparty and the Noteholders in such Trust
Estate against the claims of all Persons.
The Issuer hereby authorizes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP to file
such instruments including, without limitation, financing or continuation
statements, and amendments thereto, in all jurisdictions and with all filing
offices as the Issuer may determine, in its sole discretion, are necessary or
advisable to perfect the security interest granted to the Indenture Trustee in
connection herewith. Such financing statements may describe the collateral in
the same manner as described in any security agreement or pledge agreement
entered into by the parties in connection herewith or may contain an
indication or description of collateral that describes such property in any
other manner as the Issuer may determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the security
interest in the collateral granted to the Indenture Trustee in connection
herewith, including, without limitation, describing such property as "all
assets" or "all personal property."
Section 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit D.
(b) On or before June 30, in each calendar year, beginning in 2003,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the authorization and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and the
authorization and filing of any financing statements and continuation
statements that shall, in the opinion of such counsel, be required to maintain
the lien and security interest of this Indenture until June 30 in the
following calendar year.
Section 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer shall not take any action and shall use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate, including,
but not limited to, filing or causing to be filed all financing statements and
continuation statements required to be filed under the Relevant UCC by the
terms of this Indenture and the Sale and Servicing Agreement in accordance
with and within the time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of the Indenture Trustee or the Holders of at least a
majority of the principal amount of the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an Event
of Servicing Termination under the Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof
and shall specify in such notice the action, if any, the Issuer is taking in
respect of such default. If an Event of Servicing Termination shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.1 of
the Sale and Servicing Agreement, the Issuer shall (subject to the rights of
the Indenture Trustee to direct such appointment pursuant to Section 8.2 of
the Sale and Servicing Agreement) appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Indenture Trustee. In the event
that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee, without further action, shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event
shall be released from such duties and obligations, such release not to be
effective until the date a new servicer enters into a servicing agreement with
the Issuer as provided below. Upon delivery of any such notice to the Issuer,
the Issuer shall obtain a new servicer as the Successor Servicer under the
Sale and Servicing Agreement. Any Successor Servicer (other than the Indenture
Trustee) shall (i) be an established financial institution having a net worth
of not less than $50,000,000 and whose regular business includes the servicing
of automotive installment sale contracts and (ii) enter into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to the Servicer. If,
within 30 days after the delivery of the notice referred to above, the Issuer
shall not have obtained such a new servicer, the Indenture Trustee may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer. In connection with any such appointment, the Indenture
Trustee may make such arrangements for the compensation of such successor as
it and such successor shall agree, subject to the limitations set forth below
and in the Sale and Servicing Agreement, and in accordance with Section 8.2 of
the Sale and Servicing Agreement, the Issuer shall enter into an agreement
with such successor for the servicing of the Receivables (such agreement to be
in form and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed to the Servicer's duties as servicer of the Receivables
as provided herein, it shall do so in its individual capacity and not in its
capacity as Indenture Trustee and, accordingly, the provisions of Article VI
shall be inapplicable to the Indenture Trustee in its duties as the successor
to the Servicer and the servicing of the Receivables. If the Indenture Trustee
shall become successor to the Servicer under the Sale and Servicing Agreement,
the Indenture Trustee shall be entitled to appoint as Servicer any one of its
Affiliates; provided that the Indenture Trustee, in its capacity as the
Servicer, shall be fully liable for the actions and omissions of such
Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Servicer is appointed by the Issuer,
the Issuer shall notify the Indenture Trustee of such appointment, specifying
in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer hereby agrees that it shall not,
without the prior written consent of the Indenture Trustee or the Holders of
at least a majority in principal amount of the Notes Outstanding, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement or the Basic Documents).
Section 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Trust
Agreement, the Purchase Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or assets of
the Issuer, including those included in the Trust Estate, unless directed to
do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or assert
any claim against any present or former Noteholder by reason of the payment of
the taxes levied or assessed upon the Issuer;
(iii) consolidate or merge with or into any other Person;
(iv) dissolve or liquidate in whole or in part;
(v) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the assets of the Issuer or any part thereof or any
interest therein or the proceeds thereof or (C) permit the lien of this
Indenture not to constitute a valid first priority (other than with respect to
any such tax, mechanics' or other lien) security interest in the Trust Estate;
or
(vi) engage in any activity which is inconsistent with the treatment
of the Issuer as a "Qualifying Special Purpose Entity" as such term is used in
SFAS 140 and any successor rule thereto.
Section 3.9 Annual Statement as to Compliance. The Issuer shall
deliver to the Indenture Trustee, on or before June 30 of each year
(commencing with the year 2003), an Officer's Certificate stating, as to the
Responsible Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year (or
such shorter period, with respect to the first such Officer's Certificate) and
of its performance under this Indenture has been made under such Responsible
Officer's supervision; and
(ii) to the best of such Responsible Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year (or such shorter period, with respect to
the first such Officer's Certificate), or, if there has been a default in its
compliance with any such condition or covenant, specifying each such default
known to such Responsible Officer and the nature and status thereof.
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition
of Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer
or otherwise dispose of any material portion of the properties and assets
included in the Trust Estate to any Person.
Section 3.11 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables
in the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.13 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture and the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
Section 3.15 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.16 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Owner Trustee, the Swap Counterparty and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose under,
the Sale and Servicing Agreement or the Trust Agreement and (y) payments to
the Indenture Trustee pursuant to Section 1(a)(ii) of the Administration
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the other Basic Documents.
Section 3.18 Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Swap Counterparty and the Rating Agencies prompt
written notice of each Event of Default hereunder and of each default on the
part of any party to the Sale and Servicing Agreement, the Purchase Agreement
or the Interest Rate Swap Agreement with respect to any of the provisions
thereof.
Section 3.19 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
therewith.
Section 3.20 Calculation Agent. (a) The Issuer agrees that for so
long as any of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes are Outstanding there shall at all
times be an agent appointed to calculate LIBOR in respect of each Interest
Accrual Period (the "Calculation Agent"). The Issuer hereby appoints ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services Inc. as Calculation Agent for purposes of determining
LIBOR for each Interest Accrual Period and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services
Inc. hereby accepts such appointment. The Calculation Agent may be removed by
the Issuer at any time. If the Calculation Agent is unable or unwilling to act
as such or is removed by the Issuer, the Issuer shall promptly appoint as a
replacement Calculation Agent a leading bank which is engaged in transactions
in Eurodollar deposits in the international Eurodollar market and which does
not control or is not controlled by or under common control with the Issuer or
its Affiliates. The Calculation Agent may not resign its duties without a
successor having been duly appointed.
(b) The Calculation Agent shall be required to calculate on each
LIBOR Determination Date the interest rate for the Outstanding Class A-2
Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes for
the related Interest Accrual Period (in each case, at a rate per annum
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward) and the amount of
interest payable (rounded to the nearest cent, with half a cent being rounded
upwards) on the related Payment Date. The determination of such interest rates
by the Calculation Agent shall (in the absence of manifest error) be final and
binding upon all parties.
ARTICLE IV - SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect with respect
to the Notes except as to (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights
of Noteholders to receive payments of principal thereof and interest thereon,
(iv) Sections 3.3, 3.4, 3.5, 3.8, 3.11 and 3.12, (v) the rights, obligations
and immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture
Trustee under Section 4.3), and (vi) the rights of Noteholders and the Swap
Counterparty as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when either:
(A) all Notes of all Classes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.6 and (ii) Notes for whose
payment money has theretofore been irrevocably deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer
or discharged from such trust, as provided in Section 3.3) have been delivered
to the Indenture Trustee for cancellation; or
(B) each of the following:
(1) all Notes not theretofore delivered to the Indenture Trustee for
cancellation have become due and payable and the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed by the United States
of America (which will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the Indenture
Trustee for cancellation when due to the applicable Stated Maturity Date or
Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1), as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
by the Issuer hereunder and under the other Basic Documents;
(3) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.1(a) and,
subject to Section 11.2, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with;
(4) the Issuer has delivered to the Indenture Trustee an Opinion of
Counsel to the effect that the satisfaction and discharge of the Notes
pursuant to this Section 4.1 will not cause any Noteholder to be treated as
having sold or exchanged any of its Notes for purposes of Section 1001 of the
Code; and
(5) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate stating that the satisfaction and discharge of this Indenture (i)
is not inconsistent with the derecognition by MMCA of the Receivables under
GAAP and (ii) will not cause the Issuer to become part of MMCA's consolidated
group under GAAP.
(b) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.2 Satisfaction and Discharge of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection (b)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Notes Outstanding, and the provisions of this
Indenture, as it relates to such Notes, shall no longer be in effect (and the
Indenture Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from the trust funds
described in subsection (b)(i) hereof, payment of the principal of and
interest on the Notes Outstanding at maturity of such principal or interest;
(ii) the obligations of the Issuer with respect to the Notes under
Sections 2.5, 2.6, 3.2 and 3.3;
(iii) the obligations of the Issuer to the Indenture Trustee under
Section 6.7; and
(iv) the rights, powers, trusts and immunities of the Indenture
Trustee hereunder and the duties of the Indenture Trustee hereunder.
(b) The satisfaction and discharge of the Notes pursuant to
subsection (a) of this Section 4.2 is subject to the satisfaction of all of
the following conditions:
(i) the Issuer has deposited or caused to be deposited irrevocably
(except as provided in Section 4.4) with the Indenture Trustee as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes, which, through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than one day prior to the due date of any payment referred to below,
money in an amount sufficient, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to pay and discharge
the entire indebtedness on the Notes Outstanding, for principal thereof and
interest thereon to the date of such deposit (in the case of Notes that have
become due and payable) or to the maturity of such principal and interest, as
the case may be, and to pay any amounts then due and payable to the Swap
Counterparty;
(ii) such deposit will not result in a breach or violation of, or
constitute an event of default under, any other agreement or instrument to
which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or on the 91st day
after such date;
(iv) the Issuer has delivered to the Indenture Trustee an Opinion of
Counsel to the effect that the satisfaction and discharge of the Notes
pursuant to this Section 4.2 will not cause any Noteholder to be treated as
having sold or exchanged any of its Notes for purposes of Section 1001 of the
Code; and
(v) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the satisfaction and discharge of the Notes contemplated
by this Section 4.2 have been complied with.
(c) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment
or redemption of which such monies have been deposited with the Indenture
Trustee, of all sums due and to become due thereon for principal and interest,
and for payment to the Swap Counterparty of all sums, if any, due or to become
due to the Swap Counterparty under and in accordance with this Indenture and
the Interest Rate Swap Agreement, but such monies need not be segregated from
other funds except to the extent required herein or in the Sale and Servicing
Agreement or required by law.
Section 4.4 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all monies then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
ARTICLE V - REMEDIES
Section 5.1 Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of five
days or more; or
(ii) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable, including
with respect to each Class of Notes, the Stated Maturity Date for such Class;
or
(iii) default in the observance or performance of any material
covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
elsewhere in this Section 5.1 specifically dealt with), or any representation
or warranty of the Issuer made in this Indenture or in any certificate or
other writing delivered pursuant hereto or in connection herewith proving to
have been incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured, for
a period of 60 days or in the case of a materially incorrect representation
and warranty 30 days, after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer and
the Indenture Trustee by the Holders of not less than 25% of the principal
amount of the Notes Outstanding, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part
of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the Issuer of any
general assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of any
action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Default which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), its status and what action the Issuer
is taking or proposes to take with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and Annulment. (a)
If an Event of Default should occur and be continuing, then and in every such
case the Indenture Trustee or the Holders of Notes representing not less than
a majority of the principal amount of the Notes Outstanding, voting as a
group, may declare all the Notes to be immediately due and payable, by a
notice in writing to the Issuer (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable. If an Event of
Default specified in Section 5.1(iv) or (v) occurs, all unpaid principal,
together with all accrued and unpaid interest thereon, of all the Notes, and
all other amounts payable hereunder, shall automatically become due and
payable without any declaration or other act on the part of the Indenture
Trustee or any Holder of the Notes. In the event of such declaration or
automatic acceleration, the Indenture Trustee shall give prompt written notice
to the Swap Counterparty.
(b) At any time after a declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the amount due has
been obtained by the Indenture Trustee as hereinafter provided in this Article
V, the Holders of Notes representing a majority of the principal amount of the
Notes Outstanding, voting as a group, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Notes and all
other amounts that would then be due hereunder or upon such Notes or under the
Interest Rate Swap Agreement if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel and other amounts due and owing
to the Indenture Trustee pursuant to Section 6.7; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) there is a default in
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five days, or (ii) there is a
default in the payment of the principal of or any installment of the principal
of any Note when the same becomes due and payable, the Issuer shall, upon
demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit
of the Holders of the Notes, the whole amount then due and payable on the
Notes for principal and interest, with interest upon the overdue principal at
the applicable Note Interest Rate and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest
at the applicable Note Interest Rate and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel and other amounts due and
owing to the Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so
due and unpaid, and may prosecute such Proceeding to judgment or final decree,
and may enforce the same against the Issuer or other obligor upon the Notes
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Notes, wherever situated, the monies adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders
and the Swap Counterparty by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and all other amounts due
and owing to the Indenture Trustee pursuant to Section 6.7), of the Swap
Counterparty and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes and the Swap Counterparty in any election of a
trustee, a standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to pay all amounts received with respect to
the claims of the Noteholders, the Swap Counterparty and of the Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee, the Swap Counterparty or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay
to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
amounts due and owing to the Indenture Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder or of the Swap Counterparty any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the Interest Rate Swap Agreement or the rights of any Noteholder or Swap
Counterparty to authorize the Indenture Trustee to vote in respect of the
claim of any Noteholder or Swap Counterparty in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes and
the Swap Counterparty.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
Section 5.4 Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may, but shall not be
obligated to, do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes or
under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and any
other obligor upon such Notes the amounts then payable and adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the Relevant UCC
and take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Noteholders and Swap Counterparty;
and
(iv) sell or liquidate the Trust Estate or any portion thereof or
rights or interest therein at one or more public or private sales called and
conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an Event
of Default described in Section 5.1(i) or (ii), unless (A) the Holders of 100%
of the principal amount of the Notes Outstanding, voting as a group, consent
thereto, (B) the proceeds of such sale or liquidation are sufficient to pay in
full the principal of and the accrued interest on the outstanding Notes and
all payments due and payable (including any Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement or (C) the Indenture Trustee
determines that the Trust Estate will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and the
Indenture Trustee obtains the consent of Holders of 66 2/3% of the principal
amount of the Notes Outstanding, voting as a group. In determining such
sufficiency or insufficiency with respect to clauses (B) and (C) above, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
(b) Notwithstanding the foregoing, if an Event of Default specified
in Section 5.1(i) shall have occurred and be continuing and the Notes shall
have been accelerated under Section 5.2(a),
(i) if the Indenture Trustee determines that the net proceeds of a
sale or liquidation of the Trust Estate would be sufficient to discharge in
full the principal of and accrued interest on the Notes and to make all
payments (including any Swap Termination Payments) pursuant to the Interest
Rate Swap Agreement, the Indenture Trustee shall sell or liquidate the Trust
Estate or any portion thereof or rights or interest therein at one or more
public or private sales called and conducted in any manner permitted by law;
or
(ii) if the Indenture Trustee determines that the net proceeds of a
sale or liquidation of the Trust Estate would not be sufficient to discharge
in full the principal of and accrued interest on the Notes and to make all
payments (including any Swap Termination Payments) owing to the Swap
Counterparty under the Interest Rate Swap Agreement, the Indenture Trustee may
sell or liquidate the Trust Estate at one or more public or private sales
called and conducted in any manner permitted by law if the Indenture Trustee
obtains the consent of Holders of 66 2/3% of the principal amount of the Notes
Outstanding, voting as a group.
(c) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out the money or property in the order of
priority set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section 5.4. At least 15 days
before such record date, the Issuer shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and
the amount to be paid.
Section 5.5 Optional Preservation of the Receivables. Subject to
Section 5.4(b), if the Notes have been declared to be due and payable under
Section 5.2 following an Event of Default, and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee may,
but need not, elect to maintain possession of the Trust Estate and apply
proceeds as if there had been no declaration of acceleration; provided,
however, that Total Available Funds shall be applied in accordance with such
declaration of acceleration in the manner specified in Section 4.6(c) of the
Sale and Servicing Agreement. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes and any amounts owing to the Swap
Counterparty, and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
Section 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount of the
Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of a
majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the principal amount of the
Notes Outstanding, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest on, if any, such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
Section 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right
or remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of Default
or any acquiescence therein. Every right and remedy given by this Article V or
by law to the Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture
Trustee or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Holders of a majority of the
principal amount of the Notes Outstanding shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders of
Notes representing not less than 100% of the principal amount of the Notes
Outstanding;
(c) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the principal amount of the Notes Outstanding
to sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.1, the Indenture Trustee need not take any action that it
reasonably believes might involve it in costs, expenses and liabilities for
which it will not be adequately indemnified or might materially adversely
affect the rights of any Noteholders not consenting to such action.
Section 5.12 Waiver of Past Default. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding, voting as a group, may waive any past Default or
Event of Default and its consequences except a Default or Event of Default (a)
in the payment of principal of or interest on any of the Notes or (b) in
respect of a covenant or provision hereof that cannot be amended, supplemented
or modified without the consent of the Holder of each Note. In the case of any
such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not to
have occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorney's
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
principal amount of the Notes Outstanding or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption
Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead or in any manner whatsoever, claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Indenture, and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance
with Section 5.4(c).
Section 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or by the Seller of each of its obligations under or in connection
with the Purchase Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by
the Seller or the Servicer of each of their obligations under the Sale and
Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Servicer under or in connection with
the Sale and Servicing Agreement, or against the Seller under or in connection
with the Purchase Agreement, including the right or power to take any action
to compel or secure performance or observance by the Seller or the Servicer,
as the case may be, of each of their obligations to the Issuer thereunder and
to give any consent, request, notice, direction, approval, extension, or
waiver under the Sale and Servicing Agreement or the Purchase Agreement, as
the case may be, and any right of the Issuer to take such action shall be
suspended.
(c) Promptly following a request from the Indenture Trustee to do so,
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by MMCA of each of its obligations to the Seller
under or in connection with the Purchase Agreement in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Purchase Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by MMCA of each of its obligations
under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall exercise all rights, remedies, powers, privileges and claims of
the Seller against MMCA under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure
performance or observance by MMCA of each of its obligations to the Seller
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Purchase Agreement, and any rights of the Seller
to take such action shall be suspended.
(e) Promptly following a request from the Indenture Trustee to do so,
and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparty in accordance with the
Interest Rate Swap Agreement and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Interest Rate Swap Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Swap Counterparty of its
obligations under the Interest Rate Swap Agreement.
(f) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Noteholders of Notes evidencing not less than 66 2/3% of the principal amount
of the Controlling Note Class shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Swap Counterparty including
the right or power to take any action to compel or secure performance or
observance by the Swap Counterparty of their obligations to the Issuer under
the Interest Rate Swap Agreement and to give any consent, request, notice,
direction, approval, extension, or waiver under the Interest Rate Swap
Agreement and any right of the Issuer to take such action shall be suspended.
ARTICLE VI - THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Indenture Trustee and, if required by the terms of this Indenture,
conforming to the requirements of this Indenture; however, the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, negligent failure to act, willful misconduct or bad
faith, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 6.1;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved that
the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c), (e) and (g) of this
Section 6.1.
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions
of the TIA.
(i) The Indenture Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer shall have actual
knowledge of such Event of Default or (2) written notice of such Event of
Default shall have been given to the Indenture Trustee in accordance with the
provisions of this Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture Trustee
may rely on any document believed by it to be genuine and to have been signed
or presented by the proper Person. The Indenture Trustee need not investigate
any fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel unless it
is proved that the Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that such action or omission by the
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Indenture Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney.
Section 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent hereunder may do the
same with like rights.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee (i)
shall not be responsible for, and makes no representation, as to the validity
or adequacy of this Indenture or the Notes and (ii) shall not be accountable
for the Issuer's use of the proceeds from the Notes, or responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of such Default within
90 days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
Section 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by
the Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement
containing the information which is required to be expressed in the Payment
Date statements as a dollar amount per $1,000 of original denomination of the
Notes or Class of Notes, as applicable, aggregated for such calendar year, for
the purposes of such Noteholder's preparation of Federal income tax returns.
Section 6.7 Compensation and Indemnity. (a) The Issuer shall, or
shall cause the Administrator to, pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall, or shall cause the Administrator to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall, or shall
cause the Administrator to, indemnify the Indenture Trustee against any and
all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee to so notify the Issuer and the Administrator shall
not relieve the Issuer or the Administrator of its obligations hereunder. The
Issuer shall, or shall cause the Servicer to, defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall, or shall
cause the Servicer to, pay the fees and expenses of such counsel. Neither the
Issuer nor the Administrator need reimburse any expense or indemnity against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the resignation or removal of the
Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar
law.
Section 6.8 Replacement of Indenture Trustee. (a) No resignation or
removal of the Indenture Trustee, and no appointment of a successor Indenture
Trustee, shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. Subject to the
preceding sentence, the Indenture Trustee may resign at any time by so
notifying the Issuer. The Holders of a majority in principal amount of the
Notes Outstanding, voting as a group, may remove the Indenture Trustee without
cause by so notifying the Indenture Trustee and the Issuer and the Issuer may
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer, and shall concurrently deliver a copy of such acceptance to the Swap
Counterparty. Thereupon, the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
(c) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in principal amount
of the Notes Outstanding may petition any court of competent jurisdiction to
appoint a successor Indenture Trustee. If the Indenture Trustee fails to
comply with Section 6.11, any Noteholder may petition any court of competent
jurisdiction to remove the Indenture Trustee and to appoint a successor
Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee pursuant
to this Section 6.8, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies with prior written notice
of any such transaction.
(b) If at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated, and if at that time any of the Notes shall not have
been authenticated, any successor to the Indenture Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor to the Indenture Trustee. In all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this
Indenture provided that the certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate may at the time be located,
the Indenture Trustee shall have the power and may execute and deliver an
instrument to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Trust Estate, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders and the Swap Counterparty, such title to
the Trust Estate, or any part hereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and exercised or
performed by the Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee shall
not be authorized to act separately without the Indenture 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 Indenture 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 Estate 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 Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time remove or accept the
resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
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
Indenture and the conditions of this Article VI. 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 Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture 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 Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee or its parent shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report
of condition and shall have a long-term debt rating of investment grade by
each of the Rating Agencies or shall otherwise be acceptable to each of the
Rating Agencies. The Indenture Trustee shall comply with TIA Section 310(b).
(b) Within 90 days after ascertaining the occurrence of an Event of
Default which shall not have been cured or waived, unless authorized by the
Commission, the Indenture Trustee shall resign with respect to the Class A
Notes, the Class B Notes and/or the Class C Notes in accordance with Section
6.8 of this Indenture, and the Issuer shall appoint a successor Indenture
Trustee for one or both of such Classes, as applicable, so that there will be
separate Indenture Trustees for the Class A Notes, the Class B Notes and the
Class C Notes. In the event the Indenture Trustee fails to comply with the
terms of the preceding sentence, the Indenture Trustee shall comply with
clauses (ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section 6.11 of a
successor Indenture Trustee with respect to any Class of Notes, the Issuer,
the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of each Class as to which the retiring
Indenture Trustee is not retiring shall continue to be vested in the Indenture
Trustee and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.
The Indenture Trustee shall use its best efforts to maintain the effectiveness
of all licenses required under the Pennsylvania Motor Vehicle Sales Finance
Act in connection with this Indenture and the transactions contemplated hereby
until the lien and security interest of this Indenture shall no longer be in
effect in accordance with the terms hereof.
Section 6.14 Interest Rate Swap Provisions.(a) The Issuer has entered
into an Interest Rate Swap Agreement, in a form satisfactory to the Rating
Agencies, to hedge the floating rate interest expense on the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes. The Issuer may, from time to time, enter into one or more replacement
Interest Rate Swap Agreement with one or more replacement Swap Counterparties
in the event that the Interest Rate Swap Agreement is terminated prior to its
scheduled expiration pursuant to an Event of Default or Termination Event
(each such term as defined in the Interest Rate Swap Agreement). The notional
amount of the Interest Rate Swap hedging the interest expense on the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C Notes will be initially equal to the principal amount of the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C Notes on the Closing Date and will be reduced by the amount of any
principal payments on the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class B Notes and the Class C Notes.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swap will rank senior to
interest payments on the Class A Notes. Class A Swap Termination Payments will
rank pari passu with interest payments on the Class B Notes, Class B Swap
Termination Payments will rank pari passu with interest payments on the Class
A Notes, and Class C Swap Termination Payments will rank pari passu with
interest payments on the Class C Notes, as set forth in Section 8.2 hereof and
Section 4.6 of the Sale and Servicing Agreement.
(c) The Indenture Trustee will be responsible for remitting Net Swap
Payments and any Swap Termination Payments payable to the Swap Counterparty
and for collecting the Net Swap Receipts and any Swap Termination Payments
payable to the Issuer, as applicable, on each Payment Date.
(d) In the event that the Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of the
Interest Rate Swap Agreement, the Indenture Trustee, upon written request of
the Administrator, shall establish individual collateral accounts and will
hold any securities deposited therein in trust and will invest any cash
amounts in accordance with the provisions of the Interest Rate Swap Agreement.
(e) The Administrator shall calculate and provide written
notification to the Swap Counterparty and to the Indenture Trustee of the
notional amount of the Interest Rate Swap as of each Payment Date on or before
the 12th day of the month of the related Payment Date. The Administrator shall
also obtain the calculation of LIBOR from the Calculation Agent under this
Indenture and shall calculate the amount, for each Payment Date, of all Net
Swap Payments, Net Swap Receipts, and Swap Termination Payments payable on
each Payment Date and shall provide written notification of such amounts to
the Swap Counterparty and to the Indenture Trustee prior to such Payment Date.
At least five days before the effective date of any proposed amendment or
supplement to the Interest Rate Swap Agreement, the Administrator shall
provide the Rating Agencies with a copy of such amendment or supplement.
Unless the amendment or supplement clarifies any term or provision, corrects
any inconsistency, cures any ambiguity, or corrects any typographical error in
the Interest Rate Swap Agreement, an amendment or supplement to the Interest
Rate Swap Agreement will be effective only after satisfaction of the Rating
Agency Condition.
(f) Promptly following the early termination of the Interest Rate
Swap Agreement due to an Event of Default or Termination Event (as each such
term is defined in such Interest Rate Swap Agreement), the Issuer will use
reasonable efforts to enter into a replacement interest rate swap agreement on
terms similar to those of the Interest Rate Swap Agreement with an eligible
swap counterparty unless the Indenture Trustee sells the Indenture Trust
Estate pursuant to Section 5.4(a)(iv). The Issuer shall take action as the
Indenture Trustee may request to compel or secure the performance and
observance by the Swap Counterparty of its obligations under the Interest Rate
Swap Agreement, as provided in Section 5.16(e) and 5.16(f).
(g) The Interest Rate Swap Agreement shall provide that a termination
event will occur thereunder if:
(i) the long-term rating of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is withdrawn, suspended or
falls to (but on credit watch with negative implications) or below "Aa3" by
▇▇▇▇▇'▇ if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has a long-term rating only, or the long-term rating
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is withdrawn, suspended or falls to (but on credit watch
with negative implications) or below "A1" or the short-term rating of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ falls to (but on credit watch with negative implications) or below
"Prime-1" and, within 30 days of such suspension, withdrawal or downgrade the
Swap Counterparty fails to (1) deliver or post collateral reasonably
acceptable to the Issuer and acceptable to ▇▇▇▇▇'▇ in amounts sufficient or in
accordance with the standards of ▇▇▇▇▇'▇ (as such standards may be modified
while any transaction is still outstanding) to secure its obligations under
the interest rate swap agreement, (2) assign its rights and obligations under
the Interest Rate Swap Agreement to a replacement counterparty reasonably
acceptable to the Issuer and to ▇▇▇▇▇'▇ or (3) establish other arrangements
necessary, if any, (including, without limitation, causing an entity with
ratings such that if the Swap Counterparty or its credit support provider had
such ratings, the suspension, withdrawal or downgrade would not have occurred,
to guarantee or provide an indemnity in respect of the Swap Counterparty's or
its credit support provider's obligations under the Interest Rate Swap
Agreement in form and substance reasonably satisfactory to ▇▇▇▇▇'▇) in each
case so that ▇▇▇▇▇'▇ confirms the ratings of the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes that
were in effect immediately prior to such suspension, withdrawal or downgrade;
(ii) the short-term rating of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is downgraded below a
rating of "A-1" by S&P and the Swap Counterparty fails to (1) use reasonable
efforts to assign (at its own cost or benefit) its rights and obligations
under the Interest Rate Swap Agreement to a replacement counterparty
acceptable to the Issuer and to S&P and (2) if such an assignment has not
occurred within 30 days of such downgrade, fail to deliver or post collateral
reasonably acceptable to the Issuer and sufficient to satisfy the Rating
Agency Condition with respect to S&P (as designated in an approved credit
support annex) to secure its obligations under the Interest Rate Swap
Agreement; provided, that notwithstanding the posting of the collateral and
the addition of the credit support annex, the Swap Counterparty shall continue
to use reasonable efforts to assign its rights and obligations under the
Interest Rate Swap Agreement to a replacement counterparty; or
(iii) the long-term rating or the short-term rating of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
is suspended, withdrawn or downgraded below a rating of "A" or "F1,"
respectively, by Fitch Ratings and, within 30 days of such suspension,
withdrawal or downgrade the Swap Counterparty fails to (1) deliver or post
collateral reasonably acceptable to the Issuer and acceptable to Fitch Ratings
in amounts sufficient or in accordance with the standards of Fitch Ratings (as
such standards may be modified while any transaction is still outstanding) to
secure its obligations under the Interest Rate Swap Agreement, (2) assign its
rights and obligations under the Interest Rate Swap Agreement to a replacement
counterparty reasonably acceptable to the Issuer and to Fitch Ratings or (3)
establish other arrangements necessary, if any, (including, without
limitation, causing an entity with ratings such that if the Swap Counterparty
or its credit support provider had such ratings, the suspension, withdrawal or
downgrade would not have occurred, to guarantee or provide an indemnity in
respect of the Swap Counterparty's or its credit support provider's
obligations under the Interest Rate Swap Agreement in form and substance
reasonably satisfactory to Fitch Ratings) in each case so that Fitch Ratings
confirms the ratings of the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes and the Class C Notes that were in effect
immediately prior to such suspension, withdrawal or downgrade.
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee (a) not more than five days after each Record Date, a list,
in such form as the Indenture Trustee may reasonably require, of the names and
addresses of the Holders of Notes as of such Record Date and (b) at such other
times as the Indenture Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request, a list of similar form and content
as of a date not more than 10 days prior to the time such list is furnished;
provided, however, that so long as (i) the Indenture Trustee is the Note
Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list shall
be required to be furnished.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with the rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to compliance
by the Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c))
such summaries of any information, documents and reports required to be filed
by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a) If
required by TIA Section 313(a), within 60 days after each March 31, beginning
with March 31, 2003, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The Indenture Trustee also shall comply with
TIA Section 313(b).
(b) A copy of each report at the time of its mailing to Noteholders
shall be filed by the Indenture Trustee with the Commission and each stock
exchange, if any, on which the Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture and the
Sale and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
Section 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, (i) for the benefit of the Noteholders and the
Certificateholders, each of the Trust Accounts other than the Note Payment
Account as provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing
Agreement and (ii) for the exclusive benefit of the Noteholders, the Note
Payment Account as provided in Sections 4.1(d) and 4.1(e) of the Sale and
Servicing Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in the
Collection Account all amounts required to be deposited therein with respect
to the related Collection Period as provided in Sections 4.2 and 4.4 of the
Sale and Servicing Agreement. On or before each Payment Date, all amounts
required to be deposited in the Note Payment Account with respect to the
related Collection Period pursuant to Sections 4.6 and 4.7 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the
Collection Account and/or the Reserve Account and deposited to the Note
Payment Account for payment to Noteholders in accordance with Section 2.8 on
such Payment Date. The Indenture Trustee shall direct the Swap Counterparty to
deposit, and shall otherwise cause to be deposited on each Payment Date, any
Net Swap Receipts then due and payable in the Collection Account. In addition,
the Indenture Trustee shall direct the Swap Counterparty to deposit, and shall
otherwise cause to be deposited, all Swap Termination Payments paid by the
Swap Counterparty to the Trust into the Collection Account; provided, that,
upon direction of the Issuer, the Indenture Trustee may retain a part or all
of such Swap Termination Payments to be applied as an initial payment to a
replacement swap counterparty, and provided further that the Indenture Trustee
shall promptly deposit any retained amounts that are not so applied to the
Collection Account.
Section 8.3 General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Collection Account, the Payahead Account, the
Reserve Account and the Yield Supplement Account shall be invested by the
Indenture Trustee at the direction of the Servicer in Permitted Investments as
provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing Agreement. All
income or other gain (net of losses and investment expenses) from investments
of monies deposited in the Collection Account, the Payahead Account, the
Reserve Account and the Yield Supplement Account shall be withdrawn by the
Indenture Trustee from such accounts and distributed (but only under the
circumstances set forth in the Sale and Servicing Agreement in the case of the
Reserve Account and the Yield Supplement Account) as provided in Sections 4.1,
4.7, 4.11, 4.12 and 5.1 of the Sale and Servicing Agreement. The Servicer
shall not direct the Indenture Trustee to make any investment of any funds or
to sell any investment held in any of the Trust Accounts unless the security
interest Granted and perfected in such account will continue to be perfected
in such investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction to the
Indenture Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Permitted Investment included therein, except
for losses attributable to the Indenture Trustee's failure to make payments on
such Permitted Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Servicer shall have failed to give investment
directions to the Indenture Trustee by 11:00 a.m.,
New York Time (or such
other time as may be agreed by the Issuer and Indenture Trustee), on the
Business Day preceding each Payment Date for any funds on deposit in the
Collection Account, the Payahead Account, the Reserve Account or the Yield
Supplement Account, (ii) to the knowledge of a Responsible Officer of the
Indenture Trustee, a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to Section 5.2 or (iii) the Notes shall have
been declared due and payable following an Event of Default and amounts
collected or receivable from the Trust Estate are being applied in accordance
with Section 5.4 as if there had not been such a declaration, then the
Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in such Trust Accounts in one or more Permitted Investments as
set forth in Schedule I hereto.
Section 8.4 Release of Trust Estate. (a) Subject to the payment of
its fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and
when required by the provisions of this Indenture shall, execute instruments
to release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are
not inconsistent with the provisions of this Indenture. No party relying upon
an instrument executed by the Indenture Trustee as provided in this Article
VIII shall be bound to ascertain the Indenture Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the application of
any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid in full and all amounts (including Swap Termination Payments)
owing under the Interest Rate Swap Agreement have been paid in full, release
any remaining portion of the Trust Estate that secured the Notes and the
Interest Rate Swap Agreement from the lien of this Indenture and release to
the Issuer or any other Person entitled thereto any funds then on deposit in
the Trust Accounts. The Indenture Trustee shall release property from the lien
of this Indenture pursuant to this Section 8.4(b) only upon receipt of (i) an
Issuer Request accompanied by confirmation that all amounts owing by the
Issuer under the Interest Rate Swap Agreement have been paid, an Officer's
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent, if any, provided for in this Indenture relating to the
release of the property from the lien of this Indenture have been complied
with, provided that counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any
such action and (ii) if required by the TIA, Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
Section 8.5 Opinion of Counsel. The Indenture Trustee shall receive
at least seven days notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.4(b), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and confirm
unto the Indenture Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture
which will not be inconsistent with other provisions of the Indenture;
provided, that such action shall not materially adversely affect the interests
of the Noteholders or adversely affect the rights or obligations of the Swap
Counterparty under the Interest Rate Swap Agreement, or modify or impair the
ability of the Issuer to fully perform any of its obligations under the
Interest Rate Swap Agreement (and, so long as a copy of the proposed amendment
or supplement has been delivered to each of the parties listed in Section
11.4(c) with respect to the Swap Counterparty and makes clear that the Swap
Counterparty has no longer than 10 Business Days to object to such amendment
or supplement, the Swap Counterparty's consent will be deemed to have been
given if the Swap Counterparty does not object in writing within 10 Business
Days of receipt of a written request for such consent);
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter enacted
and to add to this Indenture such other provisions as may be expressly
required by the TIA; or
(viii) to add, delete or modify any provisions necessary or advisable
to allow the Receivables to be derecognized by MMCA under GAAP or to allow the
Issuer to avoid becoming a member of MMCA's consolidated group under GAAP;
provided, however, that (i) such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Noteholder or of the Swap Counterparty, (ii) the Rating Agency Condition shall
have been satisfied with respect to such action and (iii) such action shall
not, as evidenced by an Opinion of Counsel, cause the Issuer to be
characterized for Federal or any then Applicable Tax State income tax purposes
as an association taxable as a corporation or otherwise have any material
adverse impact on the Federal or any then Applicable Tax State income taxation
of any Notes Outstanding or outstanding Certificates or any Noteholder or
Certificateholder. The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained;
(b) Notwithstanding anything contained herein to the contrary, this
Indenture may be amended by the parties hereto, whose consent to so amend this
Indenture will not be unreasonably withheld, but without the consent of any
Noteholders, to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable: (a) the transfer to the Issuer of all or any
portion of the Receivables to be derecognized by MMCA under GAAP, (b) the
Issuer to avoid becoming a member of MMCA's consolidated group under GAAP or
(c) the Issuer or any affiliate of the Seller to otherwise comply with or
obtain more favorable treatment under any law or regulation or any accounting
rule or principle; provided, however, it being a condition to any such
amendment that the Rating Agency Condition shall have been met; provided,
further, that in the case of any amendment hereunder, the Administrator shall
furnish to the Indenture Trustee an Opinion of Counsel which provides that:
(i) the interests of the Noteholders and the Swap Counterparty will not be
materially and adversely affected by the amendment and (ii) the amendment will
not significantly change the permitted activities of the Issuer; and provided,
further, that no such amendment shall be inconsistent with the derecognition
by MMCA of the Receivables under GAAP or cause the Issuer to become a member
of MMCA's consolidated group under GAAP.
Section 9.2 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the principal amount of the Notes
Outstanding, by Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or modifying in any manner the rights
of the Holders of the Notes under this Indenture; provided, however, that (i)
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder, (ii) the Rating
Agency Condition shall have been satisfied with respect to such action, (iii)
such action shall not, as evidenced by an Opinion of Counsel, cause the Issuer
to be characterized for Federal or any then Applicable Tax State income tax
purposes as an association taxable as a corporation or otherwise have any
material adverse impact on the Federal or any then Applicable Tax State income
taxation of any Notes Outstanding or outstanding Certificates or any
Noteholder or Certificateholder, and (iv) (x) such action shall not materially
adversely affect the rights or obligations of the Swap Counterparty under the
Interest Rate Swap Agreement or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under the
Interest Rate Swap Agreement or (y) the Swap Counterparty shall have consented
thereto (so long as a copy of the proposed amendment or supplement has been
delivered to each of the parties listed in Section 11.4(c) with respect to the
Swap Counterparty and makes clear that the Swap Counterparty has no longer
than 10 Business Days to object to such amendment or supplement, the Swap
Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within 10 Business Days of receipt of
a written request for such consent); and provided, further, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change any Stated Maturity Date or the date of payment of any
installment of principal of or interest on any Note, or reduce the principal
amount thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this Indenture relating to the application
of collections on, or the proceeds of the sale of, the Trust Estate to payment
of principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on
the Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the principal amount of the Notes
Outstanding, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(iv) reduce the percentage of the principal amount of the Notes
Outstanding required to direct the Indenture Trustee to sell or liquidate the
Trust Estate pursuant to Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount and accrued but unpaid interest on
the Notes and the Certificates;
(v) modify any provision of this Indenture specifying a percentage of
the aggregate principal amount of the Notes necessary to amend this Indenture
or the other Basic Documents except to increase any percentage specified
herein or to provide that certain additional provisions of this Indenture or
the Basic Documents cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation) or to affect the rights
of the Holders of Notes to the benefit of any provisions for the mandatory
redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust Estate
or, except as otherwise permitted or contemplated herein, terminate the lien
of this Indenture on any such collateral at any time subject hereto or deprive
the Holder of any Note of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith or on the basis of
an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section 9.2, the Indenture
Trustee shall mail to the Swap Counterparty a copy of such supplemental
indenture and to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that all conditions precedent
to the execution and delivery of such supplemental indenture have been
satisfied. The Indenture Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Indenture Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Issuer and the Holders of
the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X - REDEMPTION OF NOTES
Section 10.1 Redemption. The Notes are subject to redemption 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 Issuer 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 and the Certificate
Balance. The Servicer or the Issuer shall furnish the Rating Agencies and the
Noteholders notice of such redemption. If the Notes are to be redeemed
pursuant to this Section 10.1, the Servicer or the Issuer shall furnish notice
of such election to the Indenture Trustee not later than 20 days prior to the
Redemption Date and the Issuer shall deposit by 10:00 a.m. (
New York City
time) on the Redemption Date with the Indenture Trustee in the Note Payment
Account the Redemption Price of the Notes to be redeemed, whereupon all such
Notes shall be due and payable on the Redemption Date.
Section 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted promptly following
receipt of notice from the Issuer or Servicer pursuant to Section 10.1, but
not later than 10 days prior to the applicable Redemption Date, to each Holder
of Notes as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Holder's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to be
maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give any
required notice of redemption, or any defect therein, to any Holder of any
Note shall not impair or affect the validity of the redemption of any other
Note.
Section 10.3 Notes Payable on Redemption Date. The Notes to be
redeemed shall, following notice of redemption as required by Section 10.2 (in
the case of redemption pursuant to Section 10.1), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued interest
is calculated for purposes of calculating the Redemption Price.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the property or
securities to be so deposited and of all other such property or securities
made the basis of any such withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or more of
the principal amount of the Notes Outstanding, but such a certificate need not
be furnished with respect to any property or securities so deposited, if the
fair value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than 1% of the principal amount of
the Notes Outstanding.
(iii) Whenever any property or securities are to be released from the
lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee
an Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such release)
of the property or securities proposed to be released and stating that in the
opinion of such person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the Issuer
shall also furnish to the Indenture Trustee an Independent Certificate as to
the same matters if the fair value of the property or securities and of all
other property, other than property as contemplated by clause (v) below or
securities released from the lien of this Indenture since the commencement of
the then-current calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iv), equals 10% or more of the principal
amount of the Notes Outstanding, but such certificate need not be furnished in
the case of any release of property or securities if the fair value thereof as
set forth in the related Officer's Certificate is less than $25,000 or less
than 1% of the principal amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions of this
Section 11.1, the Issuer may, without compliance with the requirements of the
other provisions of this Section 11.1, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Vehicles as and to the extent
permitted or required by the Basic Documents and (B) make cash payments out of
the Trust Accounts as and to the extent permitted or required by the Basic
Documents.
Section 11.2 Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of a Responsible Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is
in the possession of the Servicer, the Seller, the Administrator or the
Issuer, unless such Responsible Officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, comments, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
Section 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied herein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall
be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to:
MMCA Auto Owner Trust 2002-5,
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
with a copy to the Administrator at:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Vice President and Treasurer
or at any other address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall promptly transmit
any notice received by it from the Noteholders to the Indenture Trustee.
(c) Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee, the Owner Trustee or the initial Swap
Counterparty shall be in writing, personally delivered, sent by facsimile or
mailed by certified mail, return receipt requested, to
in the case of Moody's, at the following address:
▇▇▇▇▇'▇ Investors Service, Inc.
ABS Monitoring Department
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of S&P, at the following address:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇'▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of Fitch Ratings, at the following address:
Fitch Ratings
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of the initial Swap Counterparty, at the
following address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Fixed Income Derivatives -
Transaction Management Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 11.5 Notices to Noteholders; Waiver. (a) Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default
or Event of Default.
Section 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by the Indenture Trustee or any Paying Agent to
such Holder, that is different from the methods provided for in this Indenture
for such payments or notices. The Issuer shall furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee shall cause
payments to be made and notices to be given in accordance with such
agreements.
Section 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind its successors, co-trustees and agents.
Section 11.10 Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, the Swap
Counterparty and any other party secured hereunder, and any other Person with
an ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture; provided, that
the Swap Counterparty shall have no right to institute any Proceeding,
judicial or otherwise, with respect to enforcement of remedies under Article V
of this Indenture upon the occurrence of an Event of Default.
Section 11.12 Legal Holiday. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest
shall accrued for the period from and after any such nominal date.
Section 11.13 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of
New York without reference to its
conflict of laws provisions (other than Section 5-1401 of the General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacities), and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
Section 11.17 No Petition; Subordination; Claims Against Seller. The
Indenture Trustee, by entering into this Indenture, and each Noteholder or
Note Owner, by accepting a Note or beneficial interest in a Note, as the case
may be, hereby covenant and agree that (a) they will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer 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, this Indenture or any of the Basic
Documents, (b) any claim that they may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim they have at any
time against the Seller that they may seek to enforce against the Subtrust
Assets of any Subtrust unrelated to the Notes, shall be subordinate to the
payment in full, including post-petition interest, in the event that the
Seller 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 Seller. The obligations of the Seller under this Indenture are
limited to the related Subtrust and the related Subtrust Assets.
Section 11.18 Inspection. The Issuer agrees that, with reasonable
prior notice, it will permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment
are unavailing) and except to the extent that the Indenture Trustee may
reasonably determine that such disclosure is consistent with its obligations
hereunder.
Section 11.19 Employee Benefit Plans. Each Plan that acquires a Note,
by its acceptance of the Note, shall be deemed to represent that its
acquisition, holding and disposition of the Note does not give rise to a
prohibited transaction for which no exemption is available.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto
duly authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
By: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Trust Officer
Schedule A
Schedule of Receivables provided to Indenture Trustee
on Computer Tape, Compact Disk or Microfiche
Schedule I
List of Permitted Investments
Account(s) Permitted Investments
Collection Account Federated Government Obligations Fund
Payahead Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
Exhibit A-1
[Form of Class A-1 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $36,300,000
No. R-1 CUSIP NO. 553083 DD 5
MMCA AUTO OWNER TRUST 2002-5
1.4100% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of THIRTY-SIX MILLION THREE HUNDRED
THOUSAND DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class A-1
Notes pursuant to Section 2.8 of the Indenture, dated as of December 1, 2002
(as amended, supplemented or otherwise modified and in effect from time to
time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust
Company, a
New York banking corporation, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the December 2003 Payment Date (the "Class A-1
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section
10.1 of the Indenture. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the previous Payment Date (or, in the
case of the initial Payment Date, or if no interest has been paid, from and
including the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of the actual number of days elapsed and a 360-day
year. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: ________________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-1 Asset Backed Notes, which, together with
the Class A-2 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-1 Notes are equal
in right of payment to the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes and subordinate to the rights of the Swap Counterparty to receive (other
than Swap Termination Payments) pursuant to the Interest Rate Swap Agreement,
to the extent provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing January 15, 2003.
As described above, the entire unpaid principal amount of this Class
A-1 Note shall be due and payable on the earlier of the Class A-1 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-1 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-1 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-1 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-1
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-1 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-1
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-1
Note and of any Class A-1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-1 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-1 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in
New York,
New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-1 Note may be registered on the
Note Register upon surrender of this Class A-1 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-1
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-1
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-1 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class A-1 Note, the Issuer, the Indenture Trustee and any agent of the Issuer
or the Indenture Trustee may treat the Person in whose name this Class A-1
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-1 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-1 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-1
Note and of any Class A-1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-1 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-1 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-1
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ___________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
Exhibit A-2
[Form of Class A-2 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $110,000,000
No. R-1 CUSIP NO. 553083 DE 3
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of ONE HUNDRED TEN MILLION DOLLARS
payable on each Payment Date in the aggregate amount, if any, payable from the
Note Payment Account in respect of principal on the Class A-2 Notes pursuant
to Section 2.8 of the Indenture, dated as of December 1, 2002 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the February 2006 Payment Date (the "Class A-2 Stated Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Capitalized terms used but not defined herein are defined in the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to and including the 14th of the month of such Payment Date.
Interest will be computed on the basis of the actual number of days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-2 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-2 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-3 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes and subordinate to the rights of the Swap Counterparty to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreement, to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing January 15, 2003.
As described above, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the Class A-2 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-2 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-2 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-2 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-2
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-2 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-2
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-2
Note and of any Class A-2 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-2 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-2 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-2 Note may be registered on the
Note Register upon surrender of this Class A-2 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-2
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-2
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-2 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class A-2 Note, the Issuer, the Indenture Trustee and any agent of the Issuer
or the Indenture Trustee may treat the Person in whose name this Class A-2
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-2 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-2 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-2
Note and of any Class A-2 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-2 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-2 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-2
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
_____________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit A-3
[Form of Class A-3 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $89,000,000
No. R-1 CUSIP NO. 553083 DF 0
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of EIGHTY-NINE MILLION DOLLARS payable
on each Payment Date in the aggregate amount, if any, payable from the Note
Payment Account in respect of principal on the Class A-3 Notes pursuant to
Section 2.8 of the Indenture, dated as of December 1, 2002 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the May 2007 Payment Date (the "Class A-3 Stated Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Capitalized terms used but not defined herein are defined in the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to and including the 14th of the month of such Payment Date.
Interest will be computed on the basis of the actual number of days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: _______________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-3 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-3 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes and subordinate to the rights of the Swap Counterparty to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreement, to the extent provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing January 15, 2003.
As described above, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the Class A-3 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-3 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-3 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-3 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-3
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-3 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-3
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-3
Note and of any Class A-3 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-3 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-3 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-3 Note may be registered on the
Note Register upon surrender of this Class A-3 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-3
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-3
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-3 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class A-3 Note, the Issuer, the Indenture Trustee and any agent of the Issuer
or the Indenture Trustee may treat the Person in whose name this Class A-3
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-3 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-3 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-3
Note and of any Class A-3 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-3 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-3 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-3
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit A-4
[Form of Class A-4 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $80,575,000
No. R-1 CUSIP NO. 553083 DG 8
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of EIGHTY MILLION FIVE HUNDRED SEVENTY
FIVE THOUSAND DOLLARS payable on each Payment Date in the aggregate amount, if
any, payable from the Note Payment Account in respect of principal on the
Class A-4 Notes pursuant to Section 2.8 of the Indenture, dated as of December
1, 2002 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the August 2009 Payment Date (the
"Class A-4 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to and including the 14th of the month of such Payment Date.
Interest will be computed on the basis of the actual number of days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: ______________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-4 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class
A-3 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-4 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, senior in right of payment to the Class B Notes and the Class C
Notes and the Class C Notes and subordinate to the rights of the Swap
Counterparty to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement, to the extent provided in the
Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. Payment Date" means the 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing on January 15, 2003.
As described above, the entire unpaid principal amount of this Class
A-4 Note shall be due and payable on the earlier of the Class A-4 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-4 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-4 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-4 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-4
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-4 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-4
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-4
Note and of any Class A-4 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-4 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-4 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-4 Note may be registered on the
Note Register upon surrender of this Class A-4 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-4
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-4
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-4 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class A-4 Note, the Issuer, the Indenture Trustee and any agent of the Issuer
or the Indenture Trustee may treat the Person in whose name this Class A-4
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-4 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-4 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-4
Note and of any Class A-4 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-4 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-4 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-4
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ _____________________________*/
Signature Guaranteed
_____________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit B
[Form of Class B Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $17,271,000
No. R-1 CUSIP NO. 553083 DH 6
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of SEVENTEEN MILLION TWO HUNDRED
SEVENTY-ONE THOUSAND DOLLARS payable on each Payment Date in the aggregate
amount, if any, payable from the Note Payment Account in respect of principal
on the Class B Notes pursuant to Section 2.8 of the Indenture, dated as of
December 1, 2002 (as amended, supplemented or otherwise modified and in effect
from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the August 2009 Payment Date (the
"Class B Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to and including the 14th of the month of such Payment Date.
Interest will be computed on the basis of the actual number of days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except
as otherwise set forth in the Indenture, the Class B Notes are subordinated in
right of payment to the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class C
Notes and subordinate to the rights of the Swap Counterparty to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreement, to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing January 15, 2003.
As described above, the entire unpaid principal amount of this Class
B Note shall be due and payable on the earlier of the Class B Stated Maturity
Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class B Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class B Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class B Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class B Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class B Notes
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class B Note be submitted for notation
of payment. Any reduction in the principal amount of this Class B Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment
Date shall be binding upon all future Holders of this Class B Note and of any
Class B Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class B Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile prior
to such Payment Date, and the amount then due and payable shall be payable
only upon presentation and surrender of this Class B Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class B Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class B Note may be registered on the Note
Register upon surrender of this Class B Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class B Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Class B Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class B Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class B Note, the Issuer, the Indenture Trustee and any agent of the Issuer or
the Indenture Trustee may treat the Person in whose name this Class B Note (as
of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Class B Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class B Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class B Note
and of any Class B Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class B Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class B Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class B Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class B
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit C
[Form of Class C Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $24,376,000
No. R-1 CUSIP NO. 553083 DJ 2
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS C ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of TWENTY-FOUR MILLION THREE HUNDRED
SEVENTY-SIX THOUSAND DOLLARS payable on each Payment Date in the aggregate
amount, if any, payable from the Note Payment Account in respect of principal
on the Class C Notes pursuant to Section 2.8 of the Indenture, dated as of
December 1, 2002 (as amended, supplemented or otherwise modified and in effect
from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the August 2009 Payment Date (the
"Class C Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to and including the 14th of the month of such Payment Date.
Interest will be computed on the basis of the actual number of days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: December 18, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: December 18, 2002
This Class C Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class C Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except
as otherwise set forth in the Indenture, the Class C Notes are subordinated in
right of payment to the Class A-1 Notes , the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class B
Notes and subordinate to the rights of the Swap Counterparty to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreement, to the extent provided in the Indenture.
Principal of the Class C Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing January 15, 2003.
As described above, the entire unpaid principal amount of this Class
C Note shall be due and payable on the earlier of the Class C Stated Maturity
Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class C Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class C Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class C Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class C Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class C Notes
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class C Note be submitted for notation
of payment. Any reduction in the principal amount of this Class C Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment
Date shall be binding upon all future Holders of this Class C Note and of any
Class C Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class C Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile prior
to such Payment Date, and the amount then due and payable shall be payable
only upon presentation and surrender of this Class C Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class C Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class C Note may be registered on the Note
Register upon surrender of this Class C Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class C Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Class C Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller 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 Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, 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 NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class C Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class C Note, the Issuer, the Indenture Trustee and any agent of the Issuer or
the Indenture Trustee may treat the Person in whose name this Class C Note (as
of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Class C Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the
rights or obligations of the Swap Counterparty under the related Interest Rate
Swap Agreement or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class C Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class C Note
and of any Class C Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class C Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class C Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class C Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class C
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ____________________________*/
Signature Guaranteed
_____________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit D
[Form of Opinion of Counsel Pursuant to Section 3.6(a)]
December 18, 2002
To the Addressees Listed
on Schedule A hereto
Re: MMCA Auto Owner Trust 2002-5
Security Interest Matters
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit of
America, Inc., a Delaware corporation ("MMCA"), MMCA Auto Receivables Trust
II, a Delaware statutory trust ("MART II") and MMCA Auto Owner Trust 2002-5, a
Delaware statutory trust (the "Trust") in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of December 1, 2002 (the
"Purchase Agreement"), between MMCA and MART II, (ii) the Sale and Servicing
Agreement, dated as of December 1, 2002 (the "Sale and Servicing Agreement"),
by and among MART II, as seller, MMCA, as servicer, and the Trust, as issuer,
(iii) the Indenture, dated as of December 1, 2002 (the "Indenture"), between
the Trust and Bank of Tokyo-Mitsubishi Trust Company, as indenture trustee
(the "Indenture Trustee") for the benefit of the Holders of the Notes and the
Swap Counterparty, and (iv) the Amended and Restated Trust Agreement, dated as
of December 1, 2002 (the "Trust Agreement"), between MART II and Wilmington
Trust Company, as owner trustee. Capitalized terms not otherwise defined
herein have the meanings assigned to them in, or incorporated by reference
into, the Indenture.
Pursuant to the Purchase Agreement and the First-Tier Assignment
related thereto, MMCA proposes to sell to MART II on the Closing Date, and
MART II proposes to purchase from MMCA, among other things, those motor
vehicle retail installment sale contracts identified on the Schedule of
Receivables attached as Exhibit B to the Purchase Agreement on the date hereof
(collectively, the "Receivables") which are intended to be secured by new and
used automobiles and sport-utility vehicles (collectively, the "Financed
Vehicles"), certain monies due or received thereunder after the Cutoff Date,
MMCA's security interests in the Financed Vehicles, MMCA's rights under
certain insurance policies, certain rights under dealer agreements relating to
the Receivables and certain other property related to the Receivables and all
the proceeds thereof.
Pursuant to the Sale and Servicing Agreement, MART II will sell to
the Trust all of its right, title and interest in, to and under the
Receivables, certain monies due or received thereunder after the Cutoff Date,
certain other property relating to the Receivables and all proceeds thereof.
The Trust will issue $36,300,000 principal amount of 1.4100% Class A-1 Asset
Backed Notes, $110,000,000 principal amount of Floating Rate Class A-2 Asset
Backed Notes, $89,000,000 principal amount of Floating Rate Class A-3 Asset
Backed Notes, $80,575,000 principal amount of Floating Rate Class A-4 Asset
Backed Notes, $17,271,000 principal amount of Floating Rate Class B Asset
Backed Notes and $24,376,000 principal amount of Floating Rate Class C Asset
Backed Notes (collectively, the "Notes"), pursuant to the provisions of an
Underwriting Agreement, dated December 10, 2002 (the "Underwriting
Agreement"), between MART II and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
representative of the several underwriters named therein (the
"Representative"). The Trust also will issue $48,753,752.33 aggregate
principal amount of Asset Backed Certificates (the "Certificates") pursuant to
the Trust Agreement.
In our examination, we have assumed the genuineness of all signatures
(including endorsements), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, facsimile,
electronic or photostatic copies, and the authenticity of the originals of
such copies. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon statements and
representations of MMCA, MART II and the Trust and their officers and other
representatives and of public officials, including the facts and conclusions
set forth therein.
In rendering the opinions set forth herein, we have examined and
relied on originals or copies, certified or otherwise identified to our
satisfaction, of the following:
(a) the Purchase Agreement, the Sale and Servicing Agreement, the Indenture,
the Trust Agreement, the First-Tier Assignment and the Securities Account
Control Agreement, dated as of December 1, 2002 (the "Control Agreement")
among MMCA, MART II, the Trust, the Indenture Trustee and the Securities
Intermediary (as hereinafter defined) (collectively, the "Agreements");
(b) a Certificate of MART II with respect to prior financing statements, dated
the date hereof, a copy of which is attached as Exhibit A hereto (the "MART II
Certificate");
(c) a Certificate of the Trust with respect to prior financing statements,
dated the date hereof, a copy of which is attached as Exhibit B hereto (the
"Trust Certificate");
(d) a certified copy of the certificate of trust of MART II, dated the date
hereof, from the Secretary of State of the State of Delaware as to MART II's
existence in such state (the "MART II Secretary of State Certificate");
(e) a certified copy of the certificate of trust of the Trust, dated the date
hereof, from the Secretary of State of the State of Delaware as to the Trust's
existence in such state (the "Trust Secretary of State Certificate");
(f) a certificate of the Secretary of State of the State of Delaware, dated
the date hereof, as to the existence and good standing of MART II (the "MART
II Good Standing Certificate");
(g) a certificate of the Secretary of State of the State of Delaware, dated
the date hereof, as to the existence and good standing of the Trust (the
"Trust Good Standing Certificate");
(h) an unfiled copy of a financing statement naming "MMCA Auto Receivables
Trust II" as debtor, "MMCA Auto Owner Trust 2002-5" as assignor and "Bank of
Tokyo-Mitsubishi Trust Company, as Indenture Trustee" as secured
party/assignee, which we understand will be filed within 10 days of the
Closing Date in the office of the Secretary of State of the State of Delaware
(such filing office, the "Delaware Filing Office" and such financing
statement, the "MART II/Trust Financing Statement");
(i) an unfiled copy of a financing statement naming "MMCA Auto Owner Trust
2002-5" as debtor and "Bank of Tokyo-Mitsubishi Trust Company, as Indenture
Trustee" as secured party which we understand will be filed within 10 days of
the Closing Date in the Delaware Filing Office (such financing statement, the
"Issuer/Indenture Trustee Financing Statement");
(j) the reports of LEXIS Document Services as to financing statements naming
"MMCA Auto Receivables Trust II" as debtor and on file in the Delaware Filing
Office, as of an effective date of December 4, 2002 (the "MART II Search
Report");
(k) the reports of LEXIS Document Services as to financing statements naming
"MMCA Auto Owner Trust 2002-5" as debtor and on file in the Delaware Filing
Office, as of an effective date of December 4, 2002 (the "Trust Search
Report"); and
(l) such other agreements, certificates or documents as we have deemed
necessary or appropriate as a basis for the opinion set forth below.
In making our examination of the Agreements, we have assumed that the
parties thereto had the power, corporate or otherwise, to enter into and
perform all of their respective obligations thereunder and have also assumed
the due authorization by all requisite action, corporate or other, and the
execution and delivery by such parties of the Agreements and the validity and
binding effect thereof on such parties, enforceable against such parties in
accordance with the terms of the Agreements.
As used herein, (i) "New York UCC" means the Uniform Commercial Code
as in effect on the date hereof in the State of New York (without regard to
laws referenced in Section 9-201 thereof); (ii) "Delaware UCC" means the
Uniform Commercial Code as in effect on the date hereof in the State of
Delaware (without regard to laws referenced in Section 9-201 thereof); (iii)
"UCC" means the New York UCC and the Delaware UCC, as applicable; (iv)
"Transferred Receivables" means the Receivables identified in the Schedule of
Receivables on the date hereof to the extent that a security interest in such
Receivables can be created and perfected under Article 9 of the UCC; (v)
"Federal Book-Entry Regulations" means the United States Department of the
Treasury's regulations governing the transfer and pledge of marketable
securities issued by the U.S. Treasury and maintained in the form of entries
in the TRADES book-entry system in the records of the federal reserve banks
and set forth in 61 Fed. Reg. 43626 (1996) (codified at 31 C.F.R. Part 357),
and the United States Department of Housing and Urban Development's
regulations governing the transfer and pledge of securities issued by the
Federal National Mortgage Association ("FNMA") or the Federal Home Loan
Mortgage Corporation ("FHLMC") in each case maintained in the form of entries
in the records of federal reserve banks and set forth in 62 Fed. Reg. 28975
(1996) (codified at 24 C.F.R. Part 81); (vi) "Securities Intermediary" means
Bank of Tokyo-Mitsubishi Trust Company, solely in its capacity as a
"securities intermediary" as defined in the UCC; and (vii) "Securities
Accounts" means account numbers ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, 26025728, 26025736 and
26025744 established at the Securities Intermediary which we have been
informed are, respectively, the Collection Account, the Note Payment Account,
the Payahead Account, the Reserve Account and the Yield Supplement Account
established pursuant to the Sale and Servicing Agreement, to the extent such
accounts are subject to Article 8 or 9 of the UCC and the Federal Book-Entry
Regulations.
We express no opinion as to the laws of any jurisdiction other than
(i) the UCC, (ii) for purposes of opinion paragraphs 9 and 10, the Delaware
Statutory Trust Act, and (iii) with respect to opinion paragraphs 13 and 14,
the Federal Book-Entry Regulations.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. We note that the Sale and Servicing Agreement purports to sell the
Transferred Receivables and we express no opinion herein as to the proper
characterization of the transfer. However, irrespective of the
characterization of the transfer, the provisions of the Sale and Servicing
Agreement are effective under the New York UCC to create, in favor of the
Trust, a valid security interest in MART II's rights in the Transferred
Receivables and proceeds thereof. If the transfer is characterized as a lien,
the security interest will secure payment of the Notes.
2. To the extent the Delaware UCC is applicable to the authorization of the
MART II/Trust Financing Statement, pursuant to the provisions of the Sale and
Servicing Agreement MART II has authorized the filing of the MART II/Trust
Financing Statement for purposes of Section 9-509 of the Delaware UCC.
3. To the extent the Delaware UCC is applicable, the MART II/Trust Financing
Statement includes not only all of the types of information required by
Section 9-502(a) of the Delaware UCC but also the types of information without
which the Delaware Filing Office may refuse to accept the MART II/Trust
Financing Statement pursuant to Section 9-516 of the Delaware UCC.
4. To the extent the Delaware UCC is applicable, irrespective of the
characterization of the transfer, the security interest of the Trust will be
perfected in MART II's rights in the Transferred Receivables and the proceeds
thereof upon the later of the attachment of the security interest and the
filing of the MART II/Trust Financing Statement in the Delaware Filing Office.
We hereby confirm that Schedule B hereto identifies all persons who (i) are
identified in the MART II Search Report as having filed in the Delaware Filing
Office a financing statement naming "MMCA Auto Receivables Trust II" as debtor
and containing a description of collateral sufficient to include the
Transferred Receivables as original collateral as of the effective date of the
MART II Search Report, and (ii) have not consensually released or subordinated
their interest in the Transferred Receivables.
5. The provisions of the Indenture are effective to create in favor of the
Indenture Trustee, for the benefit of the Holders of the Notes and the Swap
Counterparty, a valid security interest under the New York UCC in the Trust's
rights in the Transferred Receivables and proceeds thereof to secure payment
of the Notes and payments of amounts payable to the Swap Counterparty under
the Interest Rate Swap Agreement.
6. To the extent the Delaware UCC is applicable to the authorization of the
Issuer/Indenture Trustee Financing Statement, pursuant to the provisions of
the Indenture the Trust has authorized the filing of the Issuer/Indenture
Trustee Financing Statement for purposes of Section 9-509 of the Delaware UCC.
7. To the extent the Delaware UCC is applicable, the Issuer/Indenture Trustee
Financing Statement includes not only all of the types of information required
by Section 9-502(a) of the Delaware UCC but also the types of information
without which the Delaware Filing Office may refuse to accept the
Trust/Indenture Trustee Financing Statement pursuant to Section 9-516 of the
Delaware UCC.
8. To the extent the Delaware UCC is applicable, the security interest of the
Indenture Trustee will be perfected in the Trust's rights in the Transferred
Receivables and the proceeds thereof upon the later of the attachment of the
security interest and the filing of the Issuer/Indenture Trustee Financing
Statement in the Delaware Filing Office. We hereby confirm that Schedule C
hereto identifies all persons who (i) are identified in the Trust Search
Report as having filed in the Delaware Filing Office a financing statement
naming "MMCA Auto Owner Trust 2002-5" as debtor and containing a description
of collateral sufficient to include the Transferred Receivables as original
collateral as of the effective date of the Trust Search Report, and (ii) have
not consensually released or subordinated their interest in the Transferred
Receivables.
9. You have asked us whether MART II is a "registered organization" as defined
in the Delaware UCC. Pursuant to 12 Del. C. Section 3812(a), the Secretary of
State of the State of Delaware is required to maintain a public record showing
MART II to have been organized. Based on our review of the MART II Secretary
of State Certificate and the MART II Good Standing Certificate, we are of the
opinion that under the Delaware UCC and the Delaware Statutory Trust Act, MART
II is a "registered organization."
10. You have asked us whether the Trust is a "registered organization" as
defined in the Delaware UCC. Pursuant to 12 Del. C. Section 3812(a), the
Secretary of State of the State of Delaware is required to maintain a public
record showing the Trust to have been organized. Based on our review of the
Trust Secretary of State Certificate and the Trust Good Standing Certificate,
we are of the opinion that under the Delaware UCC and the Delaware Statutory
Trust Act, the Trust is a "registered organization."
11. Assuming that the Transferred Receivables are secured by the Financed
Vehicles (as to which we express no opinion), then (i) pursuant to Section
9-203(g) of the New York UCC, attachment of the security interest of the Trust
in the Transferred Receivables results in attachment in any underlying
security interest in the Financed Vehicles securing the Transferred
Receivables and (ii) pursuant to Section 9-308(e) of the Delaware UCC,
perfection of the security interest of the Trust in the Transferred
Receivables results in perfection in such underlying security interest in the
Financed Vehicles. We call to your attention that any such underlying
collateral will continue to secure the obligations for which such underlying
collateral was pledged and will not directly secure the obligations of MART II
to the Trust.
12. Assuming that the Transferred Receivables are secured by the Financed
Vehicles (as to which we express no opinion), then (i) pursuant to Section
9-203(g) of the New York UCC, attachment of the security interest of the
Indenture Trustee in the Transferred Receivables results in attachment in any
underlying security interest in the Financed Vehicles securing the Transferred
Receivables and (ii) pursuant to Section 9-308(e) of the Delaware UCC,
perfection of the security interest of the Indenture Trustee in the
Transferred Receivables results in perfection in such underlying security
interest in the Financed Vehicles. We call to your attention that any such
underlying collateral will continue to secure the obligations for which such
underlying collateral was pledged and will not directly secure the obligations
of the Trust to the Indenture Trustee.
Our opinions in paragraphs 1-12 above are subject to the following
qualifications:
(a) for purposes of opinion paragraphs 1 and 4, we express no opinion as to
any portion of the Transferred Receivables not owned by MART II and we express
no opinion as to the nature or extent of MART II's rights in any of the
Transferred Receivables and we note that with respect to any after-acquired
property, the security interest will not attach until MART II acquires
ownership thereof, and for purposes of opinion paragraphs 5 and 8, we have
assumed that the Trust owns the Transferred Receivables, and we express no
opinion as to the nature or extent of the Trust's rights in any of the
Transferred Receivables and we note that with respect to any after-acquired
property, the security interest will not attach until the Trust acquires
ownership thereof;
(b) our opinion with respect to proceeds is subject to the limitations set
forth in Section 9-315 of the UCC and, in addition, we call to your attention
that in the case of certain types of proceeds, other parties such as holders
in due course, protected purchasers of securities, persons who obtain control
over securities entitlements and buyers in the ordinary course of business may
acquire a superior interest or may take their interest free of the security
interest of a secured party;
(c) we have assumed that the principal obligation of the account debtor or
obligor under each Transferred Receivable is a monetary obligation, does not
evidence an order to pay, and does not contain an acknowledgment by a bank
that the bank has received for deposit a sum of money or funds, and is not a
letter of credit or a deposit account;
(d) we have assumed that "value" as defined in Section 1-201(44) of the UCC
was given;
(e) we have assumed that each of MART II and the Trust has all necessary
authorization under its organizational documents and applicable law (other
than the UCC) for the filing of the MART II/Trust Financing Statement and the
Issuer/Indenture Trustee Financing Statement, respectively;
(f) for purposes of our opinion paragraphs 9 and 10, we have assumed that each
of MART II and the Trust has not filed a certificate of incorporation or any
similar document under the laws of any jurisdiction other than the State of
Delaware and that the internal affairs of MART II and the Trust are not
otherwise subject to the laws of any jurisdiction other than Delaware. We call
to your attention that to the extent that the internal affairs of MART II or
the Trust are subject to regulation under the laws of another State, the State
of Delaware may recognize such authority. See, e.g., ▇▇▇▇▇▇▇▇▇ Inc. ▇. ▇▇▇▇▇,
531 A.2d 206 (Del. 1987). Further, we have assumed that each of MART II and
the Trust has not and will not file (A) any certificates of transfer or
continuance pursuant to Delaware General Corporation Law ("DGCL") Section
390(a), Delaware Revised Uniform Limited Partnership Act ("DRULPA") Section
17-216(a) or Delaware Limited Liability Company Act ("DLLC") Section
18-213(a), (B) any certificates of domestication pursuant to DGCL Section
388(b)(1), DRULPA Section 17-215(i) or DLLC Section 18-212(b) or (C) any
similar certificates in any jurisdiction other than the State of Delaware;
(g) our opinion in paragraph 9 is based solely upon our review of the MART II
Good Standing Certificate and the MART II Secretary of State Certificate;
(h) our opinion in paragraph 10 is based solely upon our review of the Trust
Good Standing Certificate and Trust Secretary of State Certificate;
(i) we note that we have delivered to you our opinion with respect to the
status of each of MART II and the Trust as a "registered organization." Except
to the extent that this determination is an element of your choice of law
analysis, we express no opinion with respect to the choice of law governing
perfection, the effect of perfection and non-perfection or priority of the
security interest;
(j) we call to your attention that each of MART II and the Trust is a trust
and we express no opinion whether the Transferred Receivables are the property
of MART II or its trustee or the Trust or the Indenture Trustee. If and to the
extent the Transferred Receivables are subsequently determined to be in either
case the property of the trustee or the Indenture Trustee, the filing of
additional statements filed in the location of the trustee may be advisable;
(k) we express no opinion regarding the security interest of the Trust or the
Indenture Trustee in any Receivables consisting of claims against any
government or governmental agency (including, without limitation, the United
States of America or any state thereof or any agency or department of the
United States of America or any state thereof);
(l) we have assumed that (i) the Sale and Servicing Agreement constitutes the
legal, valid and binding obligation of all parties thereto, enforceable
against all parties thereto in accordance with its terms and (ii) the
Indenture constitutes the legal, valid and binding obligation of all parties
thereto, enforceable against all parties thereto, in accordance with its
terms; and
(m) we express no opinion with respect to the security interest granted to the
Indenture Trustee for the benefit of any Person who becomes a Swap
Counterparty after the date hereof.
13. Under the New York UCC, the provisions of the Indenture are effective to
create, in favor of the Indenture Trustee for the benefit of the Holders of
the Notes and the Swap Counterparty, a valid security interest in the Trust's
rights in the Securities Accounts.
14. Under the New York UCC, the provisions of the Control Agreement are
effective to perfect the security interest of the Indenture Trustee, for the
benefit of the Holders of the Notes and the Swap Counterparty, in the Trust's
rights in the Securities Accounts.
Our opinions in paragraphs 13 and 14, with respect to the security interest of
the Indenture Trustee in the Securities Accounts, are subject to the following
additional assumptions and qualifications:
(a) we have assumed that the Trust owns, or with respect to after-acquired
property will own, the Securities Accounts, and we express no opinion with
respect to the nature or extent of the Trust's rights in any of the Securities
Accounts and we note that with respect to any after-acquired property, the
security interest will not attach until the Trust acquires ownership thereof;
(b) insofar as our opinions relate to the Federal Book-Entry Regulations, such
opinions are limited to regulations published in the Code of Federal
Regulations or the Federal Register, without regard to any interpretations,
operating circulars or other communications from the Department of the
Treasury, the Board of Governors of the Federal Reserve System, any Federal
Reserve Bank, the Department of Housing and Urban Development or any other
federal agency or instrumentality. Further, to the extent any of the financial
assets are issued by the U.S. Treasury or certain other federally sponsored
issuers, certain federal officials, including the Secretary of the Treasury
and the Secretary of the Department of Housing and Urban Development, may
waive the Federal Book-Entry Regulations and we express no opinion with
respect to the effect of any such waiver on the opinions expressed herein;
(c) our opinion with respect to proceeds is subject to the limitations set
forth in Section 9-315 of the UCC and, in addition, we call to your attention
that in the case of certain types of proceeds, other parties such as holders
in due course, protected purchasers of securities, persons who obtain control
over securities entitlements and buyers in the ordinary course of business may
acquire a superior interest or may take their interest free of the security
interest of a secured party;
(d) we have assumed that "value" as defined in Section 1-201(44) of the UCC
was given;
(e) we have assumed that each of the Control Agreement and the Indenture is
the legal, binding and enforceable obligation of all parties thereto;
(f) we have assumed that each Securities Account is a "securities account" (as
defined in the UCC) and the Securities Intermediary in the ordinary course of
its business maintains securities accounts for customers and is acting in that
capacity;
(g) we express no opinion with respect to any property or assets now or
hereafter credited to a Securities Account except to the extent that (i) a
"securities entitlement" (as such term is defined in Section 8-102(a)(17) of
the UCC) has been created and (ii) such asset is a "financial asset" (as such
term is defined in Section 8-102(a)(9) of the UCC). Furthermore, we express no
opinion with respect to the nature or extent of the Securities Intermediary's
rights in, or title to, the securities or other financial assets underlying
any "security entitlement" now or hereafter credited to a Securities Account.
We note that to the extent the Securities Intermediary maintains any financial
asset in a "clearing corporation" (as defined in Section 8-102(a)(5) of the
UCC), pursuant to Section 8-111 of the UCC, the rules of such clearing
corporation may affect the rights of the Securities Intermediary;
(h) we express no opinion with respect to the choice of law governing
perfection, the effect of perfection and non-perfection or priority of the
security interest; and
(i) we express no opinion with respect to the security interest granted to the
Indenture Trustee for the benefit of any Person who becomes a Swap
Counterparty after the date hereof.
This opinion is furnished to you solely for your benefit in
connection with the closing today and is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other person
without our prior written consent.
Very truly yours,
Schedule A
Mitsubishi Motors Credit of America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
as Trustee for MMCA Auto Receivables Trust II
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington Trust Company,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Bank of Tokyo-Mitsubishi Trust Company,
as Indenture Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative of the several Underwriters
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.,
as Swap Counterparty
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Annex A
[Form of Retail Installment Sale Contract]
Appendix A
DEFINITIONS AND USAGE
USAGE
The following rules of construction and usage shall be
applicable to any agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the
defined meanings when used in any agreement or instrument governed hereby and
in any certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed
hereby and in any certificate or other document made or delivered pursuant
thereto, accounting terms not defined in this Appendix or in any such
agreement, instrument, certificate or other document, and accounting terms
partly defined in this Appendix or in any such agreement, instrument,
certificate or other document, to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles as in effect on the date of such agreement or instrument. To the
extent that the definitions of accounting terms in this Appendix or in any
such agreement, instrument, certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Appendix or in any such
instrument, certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in an agreement or instrument refer to such agreement
or instrument as a whole and not to any particular provision or subdivision
thereof; references in an agreement or instrument to "Article," "Section" or
another subdivision or to an attachment are, unless the context otherwise
requires, to an article, section or subdivision of or an attachment to such
agreement or instrument; the word "or" is not exclusive; and the term
"including" means "including without limitation."
(d) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred
to below or in any agreement or instrument that is governed by this Appendix
means such agreement or instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns.
DEFINITIONS
"Accrued Note Interest" shall mean, with respect to any
Payment Date and each Class of Notes, the sum of the Monthly Accrued Note
Interest and the Interest Carryover Shortfall for such Class for such Payment
Date.
"Act" shall have the meaning specified in Section 11.3(a) of
the Indenture.
"Actuarial Advance" shall mean, with respect to an Actuarial
Receivable, the amount, as of the last day of a Collection Period, which is
required to be advanced with respect to such Actuarial Receivable by the
Servicer pursuant to Section 4.4(a) of the Sale and Servicing Agreement.
"Actuarial Method" shall mean the method of allocating a
fixed level payment on a Receivable between principal and interest, pursuant
to which the portion of such payment that is allocated to interest is the
product of one-twelfth (1/12) of the APR of the Receivable multiplied by the
scheduled principal balance of the Receivable, and the remainder of such
payment is allocable to principal.
"Actuarial Receivable" shall mean any Receivable under which
the portion of a payment with respect thereto allocable to interest and the
portion of a payment with respect thereto allocable to principal is determined
in accordance with the Actuarial Method.
"Adjusted Pool Balance" shall mean the aggregate Adjusted
Principal Balance (including the aggregate Adjusted Principal Balance of Last
Scheduled Payments) of the Receivables as of the Cutoff Date.
"Adjusted Principal Balance" shall mean, with respect to any
Receivable as of any date of determination, the Principal Balance of such
Receivable minus the Yield Supplement Overcollateralization Amount for such
Receivable, as of such date.
"Administration Agreement" shall mean the Administration
Agreement, dated as of December 1, 2002, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of
America, Inc., a Delaware corporation, or any successor Administrator under
the Administration Agreement.
"Advance" shall mean an Actuarial Advance or a Last
Scheduled Payment Advance, as the context may require.
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with such specified Person. For purposes of
this definition, "control" when used with respect to any specified Person
shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Amount Financed" shall mean, with respect to a Receivable,
the aggregate amount advanced under such Receivable toward the purchase price
of the Financed Vehicle and any related costs.
"Applicable Tax State" shall mean, as of any date of
determination, each state as to which any of the following is then applicable:
(a) a state in which the Owner Trustee maintains the Corporate Trust Office,
(b) a state in which the Owner Trustee maintains its principal executive
offices and (c) a state in which the Servicer regularly conducts servicing and
collection operations other than purely ministerial activities and which
relate to a material portion of the Receivables.
"APR" of a Receivable shall mean the annual percentage rate
of interest stated in the Contract related to such Receivable.
"Authenticating Agent" shall have the meaning specified in
Section 2.14 of the Indenture.
"Available Funds" shall mean, for any Payment Date, an
amount equal to (a) the sum of the following amounts with respect to the
related Collection Period: (i) all collections on Receivables, including
Payaheads withdrawn from the Payahead Account (but excluding Payaheads
deposited into the Payahead Account), (ii) the proceeds of sale by the Trust
of any Financed Vehicle sold to the Trust upon termination, including a
prepayment, of a Final Payment Receivable, (iii) all Liquidation Proceeds on
Defaulted Receivables and any Recoveries, (iv) all extension and deferral fees
paid with respect to the Receivables, (v) the Purchase Amount of each
Receivable that became a Purchased Receivable during the related Collection
Period (net of applicable expenses), (vi) any Net Swap Receipts on the
Interest Rate Swap Agreement, (vii) any Swap Termination Payments paid by the
Swap Counterparty to the extent that such amounts are not used to enter into a
replacement interest rate swap, (viii) all Actuarial Advances and Last
Scheduled Payment Advances deposited to the Collection Account on such Payment
Date by the Servicer, (vii) amounts paid pursuant to the Yield Supplement
Agreement (including amounts, if any, withdrawn from the Yield Supplement
Account or the Reserve Account pursuant to Section 5.1(a) of the Sale and
Servicing Agreement) with respect to the related Collection Period, (viii)
partial prepayments attributable to any refunded item included in the Amount
Financed, such as extended warranty protection plan costs or physical damage,
credit life or disability insurance premiums, or any partial prepayment which
causes a reduction in the Obligor's periodic payment to be below the Scheduled
Payment as of the Cutoff Date, minus (b) the aggregate amount of funds
described in clause (a) above that are used in the related Collection Period
to reimburse the Servicer for the aggregate amount of Advances previously made
by the Servicer that are due and payable to the Servicer on such Payment Date;
provided, however, that in calculating the Available Funds, all payments and
proceeds (including Liquidation Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in the Available Funds in a prior
Collection Period (which shall be paid to MART II or the Servicer, as
applicable) will be excluded.
"Balloon Payment" means, as to a Balloon Payment Receivable,
the final payment which is due at the end of the term of the receivable.
"Balloon Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables
which provides for equal monthly installments and one substantially larger
final balloon payment. At maturity of the Balloon Payment Receivable, the
Obligor may either (i) pay the remaining Principal Balance of the Receivable,
all accrued and unpaid interest, plus any fees, charges, and other amounts
then owing or (ii) refinance the amount then due, subject to certain
conditions, and satisfy all other conditions stated under the terms of the
Contract. For avoidance of doubt, the Obligor on a Balloon Payment Receivable
may not satisfy its obligation to pay the Balloon Payment at maturity of the
Balloon Payment Receivable by returning the Financed Vehicle to MMCA.
"Basic Documents" shall mean the Indenture, the Certificate
of Trust, the Trust Agreement, the First-Tier Assignment, the Sale and
Servicing Agreement, the Purchase Agreement, the Administration Agreement, the
Note Depository Agreement, the Interest Rate Swap Agreement, the Yield
Supplement Agreement, the Control Agreement and other documents and
certificates delivered in connection therewith as the same may from time to
time be amended, supplemented or otherwise modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries by
a Clearing Agency as described in Section 2.11 of the Indenture.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New York,
New York, Wilmington, Delaware or Los Angeles, California are authorized or
obligated by law, regulation or executive order to be closed.
"Calculation Agent" shall initially mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc., as the agent of the Issuer for purposes of determining
LIBOR for each Interest Accrual Period, and any successor that may be
appointed by the Issuer from time to time pursuant to Section 3.20(a) of the
Indenture.
"Capped Receivable" shall mean a Simple Interest Receivable
that is subject to a cap on the aggregate amount of interest to be paid by the
related Obligor during the term of such Receivable.
"Certificate" shall mean a physical certificate evidencing
the beneficial interest of a Certificateholder in the property of the Trust,
substantially in the form of Exhibit A to the Trust Agreement. Such
certificate shall entitle the Holder thereof to distributions pursuant to the
Trust Agreement from collections and other proceeds in respect of the Owner
Trust Estate; provided, however, that the Owner Trust Estate has been pledged
to the Indenture Trustee to secure payment of the Notes and that the rights of
Certificateholders to receive distributions on the Certificates are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
"Certificate Balance" shall mean, as the context may
require, (i) with respect to all of the Certificates, an amount equal to,
initially, the Initial Certificate Balance and, thereafter, an amount equal to
the Initial Certificate Balance, as reduced from time to time by all amounts
allocable to principal previously distributed to Certificateholders or (ii)
with respect to any Certificate, an amount equal to, initially, the initial
denomination of such Certificate and, thereafter, an amount equal to such
initial denomination, as reduced from time to time by all amounts allocable to
principal previously distributed in respect of such Certificate; provided,
that in determining whether the Holders of the requisite portion or percentage
of the Certificate Balance of all of the Certificates have given any request,
demand, authorization, direction, notice, consent, or waiver hereunder or
under any other Basic Document, Certificates owned by the Trust, any other
obligor upon the Certificates, MART II, the Servicer or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed to be excluded from
the Certificate Balance (unless such Persons own 100% of the Certificate
Balance of the Certificates); provided, further, that where such Persons own
100% of the Certificate Balance of the Certificates, any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document is deemed to have been given by the Holders of the
Certificates if also given by the Holders of the Notes, except that, in
determining whether the Indenture Trustee and Owner Trustee shall be protected
in relying on any such request, demand, authorization, direction, notice,
consent, or waiver, only Certificates that a Responsible Officer of the
Indenture Trustee, if applicable, and a Responsible Officer of the Owner
Trustee with direct responsibility for the administration of the Trust
Agreement, if applicable, knows to be so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded as
included in the Certificate Balance if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trustee, as applicable, the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Trust, any other obligor upon the Certificates, MART II,
the Servicer or any Affiliate of any of the foregoing Persons.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 4.1(c) of the Sale and Servicing Agreement.
"Certificate of Trust" shall mean (i) with respect to the
Trust, the Certificate of Trust in the form of Exhibit B to the Trust
Agreement filed for the Trust pursuant to Section 3810(a) of the Statutory
Trust Statute and (ii) with respect to the Issuer, the certificate of trust of
the Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Certificate Pool Factor" shall mean, as of the close of
business on the last day of a Collection Period, a seven-digit decimal figure
equal to the Certificate Balance (after giving effect to any reductions
therein to be made on the immediately following Payment Date) divided by the
Initial Certificate Balance. The Certificate Pool Factor will be 1.0000000 as
of the Closing Date; thereafter, the Certificate Pool Factor will decline to
reflect reductions in the Certificate Balance.
"Certificate Register" and "Certificate Registrar" shall
mean the register mentioned and the registrar appointed pursuant to Section
3.4 of the Trust Agreement.
"Certificateholder" shall mean a Person in whose name a
Certificate is registered in the Certificate Register.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean, collectively, the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Percentage" shall mean approximately 87.03%,
calculated as the percentage equivalent of a fraction the numerator of which
is the sum of the principal amount on the date of issuance of the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, and the denominator of
which is the sum of the principal amount on the date of issuance of the Class
A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C Notes; provided, however, that in the event that after the Class A-1
Notes have been paid in full, the amount on deposit in the Reserve Account on
any Payment Date falls to less than 1.00% of the Adjusted Pool Balance on the
Cutoff Date and that amount is less than the Specified Reserve Balance for
that Payment Date, the Class A Percentage shall be 100% until the Class A
Notes have been paid in full.
"Class A-1 Noteholder" shall mean the Person in whose name a
Class A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $36,300,000 aggregate
initial principal amount of 1.4100% Class A-1 Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit A-1
thereto.
"Class A-1 Rate" shall mean 1.4100% per annum.
"Class A-1 Stated Maturity Date" shall mean the December
2003 Payment Date.
"Class A-2 Noteholder" shall mean the Person in whose name a
Class A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $110,000,000 aggregate
initial principal amount of Floating Rate Class A-2 Asset Backed Notes issued
by the Issuer pursuant to the Indenture, substantially in the form of Exhibit
A-2 thereto.
"Class A-2 Rate" shall mean one-month LIBOR plus 0.20% per
annum.
"Class A-2 Stated Maturity Date" shall mean the February
2006 Payment Date.
"Class A-3 Noteholder" shall mean the Person in whose name a
Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $89,000,000 aggregate
initial principal amount of Floating Rate Class A-3 Asset Backed Notes issued
by the Issuer pursuant to the Indenture, substantially in the form of Exhibit
A-3 thereto.
"Class A-3 Rate" shall mean one-month LIBOR plus 0.30% per
annum.
"Class A-3 Stated Maturity Date" shall mean the May 2007
Payment Date.
"Class A-4 Noteholder" shall mean the Person in whose name a
Class A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $80,575,000 aggregate
initial principal amount of Floating Rate Class A-4 Asset Backed Notes issued
by the Issuer pursuant to the Indenture, substantially in the form of Exhibit
A-4 thereto.
"Class A-4 Rate" shall mean one-month LIBOR plus 0.45% per
annum.
"Class A-4 Stated Maturity Date" shall mean the August 2009
Payment Date.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered on the Note Register.
"Class B Notes" shall mean the $17,271,000 aggregate initial
principal amount of Floating Rate Class B Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit B
thereto.
"Class B Percentage" shall mean approximately 5.38%,
calculated as the percentage equivalent of a fraction the numerator of which
is the principal amount on the date of issuance of the Class B Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes; provided, however, that in the event that
after the Class A-1 Notes have been paid in full, the amount on deposit in the
Reserve Account on any Payment Date falls to less than 1.00% of the Adjusted
Pool Balance on the Cutoff Date and that amount is less than the Specified
Reserve Balance for that Payment Date, the Class B Percentage shall be (i) 0%
until the Class A Notes have been paid in full and (ii) 100% after the Class A
Notes have been paid in full.
"Class B Rate" shall mean one-month LIBOR plus 0.85% per
annum.
"Class B Stated Maturity Date" shall mean the August 2009
Payment Date.
"Class C Noteholder" shall mean the Person in whose name a
Class C Note is registered on the Note Register.
"Class C Notes" shall mean the $24,376,000 aggregate initial
principal amount of Floating Rate Class C Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit C
thereto.
"Class C Percentage" shall mean approximately 7.59%,
calculated as the percentage equivalent of a fraction the numerator of which
is the principal amount on the date of issuance of the Class C Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes; provided, however, that in the event that
after the Class A-1 Notes have been paid in full, the amount on deposit in the
Reserve Account on any Payment Date falls to less than 1.00% of the Adjusted
Pool Balance on the Cutoff Date and that amount is less than the Specified
Reserve Balance for that Payment Date, the Class C Percentage shall be (i) 0%
until the Class B Notes have been paid in full and (ii) 100% after the Class B
Notes have been paid in full.
"Class C Rate" shall mean one-month LIBOR plus 2.15% per
annum.
"Class C Stated Maturity Date" shall mean the August 2009
Payment Date.
"Class" shall mean a class of Notes, which may be the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes or the Class C Notes.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing" shall have the meaning specified in Section 2.3 of
the Purchase Agreement.
"Closing Date" shall mean December 18, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations, including proposed
or temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the
Granting Clause of the Indenture.
"Collection Account" shall mean the account or accounts
established and maintained as such pursuant to Section 4.1(a) of the Sale and
Servicing Agreement.
"Collection Period" shall mean each calendar month during
the term of the Sale and Servicing Agreement or, in the case of the initial
Collection Period, the period from the Cutoff Date to December 31, 2002. As
used herein, the Collection Period "related to" a Payment Date or "preceding"
a Payment Date refers to the Collection Period that ends on the last day of
the calendar month preceding the calendar month in which such Payment Date
occurs.
"Commission" shall mean the Securities and Exchange
Commission.
"Computer Tape" shall mean each computer tape or compact
disk generated by MART II which provides information relating to the
Receivables and which was used by MART II in selecting the Receivables
conveyed to the Trust hereunder on the Closing Date.
"Contract" shall mean a motor vehicle retail installment
sale contract, including a retail installment contract relating to the sale of
an automobile or a sports-utility vehicle for commercial use.
"Control Agreement" shall mean the Securities Account
Control Agreement, dated as of December 1, 2002, by and among MART II, the
Issuer, the Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust
Company in its capacity as a securities intermediary, as the same may from
time to time be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean (i) with respect to the
Owner Trustee, the principal office of the Owner Trustee at which at any
particular time its corporate trust business shall be administered, which
office at the date of the execution of this Agreement is located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration or at such other address as the
Owner Trustee may designate from time to time by notice to the
Certificateholders, the Indenture Trustee and MART II, or the principal
corporate trust office of any successor Owner Trustee (of which address such
successor Owner Trustee will notify the Certificateholders, the Indenture
Trustee and MART II) and (ii) with respect to the Indenture Trustee, the
principal office of the Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
the execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Department, or at such
other address as the Indenture Trustee may designate from time to time by
notice to the Noteholders, the Owner Trustee and MART II, or the principal
corporate trust office of any successor Indenture Trustee (of which address
such successor Indenture Trustee will notify the Noteholders, the Owner
Trustee and MART II).
"Cutoff Date" shall mean November 30, 2002.
"Dealer" shall mean, with respect to any Receivable, the
seller of the related Financed Vehicle who originated and assigned the
Receivable relating to such Financed Vehicle to MMCA under a Dealer Agreement.
"Dealer Agreement" shall mean an agreement between MMCA and
a Dealer relating to the assignment of Receivables to MMCA and all documents
and instruments relating thereto, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Default" shall mean any occurrence that is, or with notice
or the lapse of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable (other than a
Purchased Receivable) as to which (i) the related Financed Vehicle has been
repossessed and liquidated, (ii) more than 10% of a Scheduled Payment
(including, in the case of a Final Payment Receivable, the amount owed by an
Obligor with respect to a Last Scheduled Payment but excluding in each case
any Excess Wear and Tear or Excess Mileage) is 120 or more days past due and
the Servicer has not repossessed the related Financed Vehicle or (iii) the
Servicer has determined, in accordance with its customary servicing standards,
policies and procedures, that eventual payment in full (including, in the case
of a Final Payment Receivable, the amount owed by an Obligor with respect to a
Last Scheduled Payment but excluding in each case any Excess Wear and Tear or
Excess Mileage) on the Receivable is unlikely and the Servicer has either (x)
repossessed and liquidated the related Financed Vehicle or (y) repossessed and
held the related Financed Vehicle in its repossession inventory for more than
90 days, which 90 days shall not be more than 180 days after the date on which
a Scheduled Payment was due but not paid.
"Deferred Balloon Payment Receivable" shall mean any
Deferred Payment Receivable for which no Scheduled Payment is due for either
90 or 180 days from the date of the Contract and which provides for a Balloon
Payment.
"Deferred Payment Receivable" shall mean any Receivable
which is not a Deferred Balloon Payment Receivable for which the related
Contract specifies that no Scheduled Payment under such Contract shall be due
until a date more than 50 days but less than 450 days from the date of
inception of the such Contract. A Receivable shall cease to be a Deferred
Payment Receivable commencing on the last day of the Collection Period
preceding the Collection Period in which the first Scheduled Payment is due
under the related Contract.
"Definitive Notes" shall have the meaning specified in
Section 2.11 of the Indenture.
"Depositor" shall mean MART II, in its capacity as Depositor
under the Trust Agreement.
"Determination Date" shall mean, with respect to any
Collection Period, the seventh Business Day of the next succeeding calendar
month (but not later than the 10th calendar day of such month).
"Eligible Receivable" shall mean each Receivable as to which
the representations and warranties of (i) MMCA, in Section 3.2 of the Purchase
Agreement, and (ii) MART II, in Section 2.2 of the Sale and Servicing
Agreement, shall be true and correct in all material respects as of the
Closing Date.
"Eligible Servicer" shall mean a Person which, at the time
of its appointment as Servicer or as a subservicer, (i) has a net worth of not
less than $50,000,000, (ii) is servicing a portfolio of motor vehicle retail
installment sale contracts and/or motor vehicle loans, (iii) is legally
qualified, and has the capacity, to service the Receivables, (iv) has
demonstrated the ability professionally and competently to service a portfolio
of motor vehicle retail installment sale contracts and/or motor vehicle loans
similar to the Receivables in accordance with standards of skill and care that
are consistent with prudent industry standards, and (v) is qualified and
entitled to use pursuant to a license or other written agreement, and agrees
to maintain the confidentiality of, the software which the Servicer or any
subservicer uses in connection with performing its duties and responsibilities
under the Sale and Servicing Agreement or the related subservicing agreement
or obtains rights to use, or develops at its own expense, software which is
adequate to perform its duties and responsibilities under the Sale and
Servicing Agreement or the related subservicing agreement.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"Event of Default" shall have the meaning specified in
Section 5.1 of the Indenture.
"Event of Servicing Termination" shall mean an event
specified in Section 8.1 of the Sale and Servicing Agreement.
"Excess Mileage" shall mean, with respect to any Financed
Vehicle securing a Final Payment Receivable, the amounts payable by the
related Obligor relating to the excess of the number of miles by which such
Financed Vehicle has been driven over the number of miles such Financed
Vehicle may be driven during the term of the related Final Payment Receivable
(as specified in the Contract related to such Final Payment Receivable)
without incurring an excess mileage charge pursuant to the related Contract,
net of the amount, if any, payable to a third party collection agency as
payment of its fees and expenses in connection with collecting such amounts
from the related Obligor.
"Excess Wear and Tear" shall mean, with respect to any
Financed Vehicle securing a Final Payment Receivable, all amounts payable by
the related Obligor relating to damages to such Financed Vehicle that are not
the result of normal wear and tear, as more specifically described in the
Contract related to such Final Payment Receivable, net of the amount, if any,
payable to a third party collection agency as payment of its fees and expenses
in connection with collecting such amounts from the related Obligor.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Executive Officer" shall mean, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President,
the Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Expenses" shall have the meaning assigned to such term in
Section 8.2 of the Trust Agreement.
"Final Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables
which provides for a series of scheduled payments which, if each is made on
its scheduled due date, will amortize the initial Level Pay Balance by the due
date immediately preceding the maturity date of the Receivable. At maturity of
the Final Payment Receivable, the Obligor thereunder will owe (assuming that
all payments have been made on their scheduled due dates) an amount consisting
of interest for the period from the preceding due date through the maturity
date and the remaining Principal Balance of the Receivable. At maturity of the
Final Payment Receivable, the Obligor may either (i) pay the remaining
Principal Balance of the Receivable, all accrued and unpaid interest, plus any
fees, charges, and other amounts then owing, (ii) refinance the amount then
due, subject to certain conditions or (iii) sell the Financed Vehicle to MMCA
on behalf of the Trust for an amount equal to the Sale Price, and pay any
excess of the total amount owed by the Obligor (calculated as in clause (i))
over the Sale Price, and satisfy all other conditions stated under the terms
of the Contract.
"Final Scheduled Maturity Date" shall mean, with respect to
any Receivable, January 16, 2009.
"Financed Vehicle" shall mean a new or used automobile or
sport-utility vehicle, together with all accessions thereto, securing an
Obligor's indebtedness under the respective Receivable.
"First-Tier Assignment" shall mean the document of
assignment in substantially the form attached as Exhibit A to the Purchase
Agreement.
"Fitch Ratings" shall mean Fitch, Inc., doing business as
Fitch Ratings.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer, create, and to
▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security interest in and right of set-off against, and
to deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of the Collateral and all other monies payable thereunder, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.
"Holder" shall mean a Noteholder or a Certificateholder, as
the case may be.
"Indemnified Parties" shall have the meaning assigned to
such term in Section 8.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of December
1, 2002, between the Trust and the Indenture Trustee, as the same may be
amended, supplemented or otherwise modified and in effect from time to time.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"Independent" shall mean, when used with respect to any
specified Person, that such Person (a) is in fact independent of the Issuer,
any other obligor on the Notes, MART II and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
MART II or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, MART II or any Affiliate of
any of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or
opinion to be delivered to the Indenture Trustee under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.1 of the Indenture, made by an Independent appraiser or other
expert appointed by an Issuer Order and approved by the Indenture Trustee in
the exercise of reasonable care, and such opinion or certificate shall state
that the signer has read the definition of "Independent" in the Indenture and
that the signer is Independent within the meaning thereof.
"Initial Certificate Balance" shall mean, as the context may
require, (i) with respect to all of the Certificates, $48,753,752.33, or (ii)
with respect to any Certificate, an amount equal to the initial denomination
of such Certificate.
"Initial Payahead Account Deposit" shall mean $3,181.48.
"Initial Weighted Average Rate" shall mean 2.335%.
"Initial Yield Supplement Amount" shall mean $11,837,357.36.
"Insolvency Event" shall mean, with respect to any Person,
(i) the making of a general assignment for the benefit of creditors, (ii) the
filing of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt
or insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in (vii) below,
(vi) seeking, consenting to or acquiescing in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of the
assets of such Person or (vii) the failure to obtain dismissal within 60 days
of the commencement of any proceeding against such Person seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, the period from and including the preceding Payment Date through
the day preceding the Payment Date; provided, that if the 15th day of a month
is not a Business Day, the payment will be made on the next following Business
Day; provided, further, that for the first Payment Date, the "Interest Accrual
Period" shall mean the period from and including the Closing Date.
"Interest Carryover Shortfall" shall mean, with respect to
any Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually
deposited in the Note Payment Account on such preceding Payment Date with
respect to such Class, plus interest on such excess to the extent permitted by
law, at the applicable Note Interest Rate for the related Interest Accrual
Period.
"Interest Rate Swap Agreement" shall mean the interest rate
swap as to the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.,
as Swap Counterparty, dated the Closing Date, to hedge the floating interest
Class A-2 Rate, Class A-3 Rate, Class A-4 Rate, Class B Rate and Class C Rate,
including all schedules and confirmations thereto, as the same may be amended,
supplemented, renewed, extended or replaced from time to time.
"Interest Reset Date" means, with respect to the floating
rate Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and
Class C Notes, the first day of the Interest Accrual Period.
"Issuer" shall mean the Trust, unless a successor replaces
it and, thereafter, means the successor and for purposes of any provision
contained herein and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written
order or request signed in the name of the Issuer by any one of its
Responsible Officers and delivered to the Indenture Trustee.
"Last Scheduled Payment" shall mean, with respect to each
Final Payment Receivable, the amount referred to in the Contract related to
such Final Payment Receivable as the "last scheduled payment."
"Last Scheduled Payment Advance" shall mean, with respect to
a Final Payment Receivable, the amount, as of the close of business on the
last day of a Collection Period, which is required to be advanced by the
Servicer with respect to such Final Payment Receivable pursuant to Section
4.4(b) of the Sale and Servicing Agreement.
"Last Scheduled Payment Pool Balance" shall mean, for any
Payment Date, the aggregate principal balance of Last Scheduled Payments of
Final Payment Receivables as of the close of business on the last day of the
preceding Collection Period.
"Last Scheduled Payment Principal Collections" shall mean
(a) collections of principal on a Final Payment Receivable that are
attributable to Last Scheduled Payments, which includes any collection
attributable to principal on a Final Payment Receivable in excess of the
initial Level Pay Balance of that Receivable, whether or not such payment is
made on the due date of the related Last Scheduled Payment, and including the
proceeds of sale (net of expenses) of any Financed Vehicle purchased by MMCA
on behalf of the Trust pursuant to the terms of the Receivable and
subsequently sold on behalf of the Trust, minus (b) with respect to any Final
Payment Receivable with respect to which the Obligor exercises its right to
have MMCA, on behalf of the Trust, purchase the related Financed Vehicle, the
excess of the purchase price from the Obligor of such Financed Vehicle over
the remaining amount owed by the Obligor.
"Letter of Credit Bank" shall mean any Person having the
Required Rating that has provided a Yield Supplement Letter of Credit in
accordance with Section 5.1 of the Sale and Servicing Agreement.
"Level Pay Balance" shall mean, with respect to each Final
Payment Receivable, (i) initially the Amount Financed under such Final Payment
Receivable minus the principal portion of the Last Scheduled Payment thereon
and (ii) thereafter, shall be the amount set forth in clause (i) minus all
collections on or with respect to principal on such Receivable other than
amounts on deposit in the Payahead Account with respect to future due dates;
provided that such Level Pay Balance for any Final Payment Receivable shall
not be less than zero.
"Level Pay Pool Balance" shall mean, for any Payment Date,
the sum of (i) the aggregate Level Pay Balance of Final Payment Receivables
and (ii) the aggregate Principal Balance of the Receivables other than Final
Payment Receivables, as of the close of business on the last day of the
preceding Collection Period.
"LIBOR" shall mean the London Interbank Offered Rate for
U.S. dollar deposits for each Interest Accrual Period as determined by the
Calculation Agent, as follows:
On or as of the LIBOR Determination Date, the Calculation
Agent will obtain the rate for deposits in U.S. dollars for a period of the
Index Maturity, commencing on such Interest Reset Date, which appears on the
Telerate Page 3750, as of 11:00 a.m., London time, on such LIBOR Determination
Date.
If the Calculation Agent determines that Telerate Page 3750
or such page as may replace Telerate Page 3750 is not available on such LIBOR
Determination Date, the Calculation Agent will request the principal London
offices of each of four major banks in the London interbank market selected by
such Calculation Agent to provide such Calculation Agent with its offered
quotations for deposits in U.S. dollars for a period of the Index Maturity,
commencing on such Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative of a single transaction in such market
at such time. If at least two such quotations are provided, LIBOR for such
Interest Accrual Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are provided, LIBOR for such Interest Accrual
Period will be the arithmetic mean of rates quoted by three major banks in the
city of New York selected by the Calculation Agent for such LIBOR Security at
approximately 11:00 a.m., New York City time, on the first day of such
Interest Accrual Period for loans in U.S. dollars to leading European banks,
for the period of the specified Index Maturity, commencing on such Interest
Reset Date, and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative of a single transaction in such market
at such time; provided, however, that if the banks selected as aforesaid by
such Calculation Agent are not quoting rates as mentioned in this sentence,
LIBOR for such Interest Accrual Period will be the same as LIBOR for the
immediately preceding Interest Accrual Period;
provided, however, that LIBOR with respect to interest
accrued from the Closing Date until the first Payment Date shall be equal to
1.42%.
"LIBOR Determination Date" shall mean the second London and
New York Banking Day prior to the Interest Reset Date for the related Interest
Accrual Period.
"LIBOR Security" shall mean a Class A-2 Notes, a Class A-3
Note, a Class A-4 Note, a Class B Note or a Class C Note.
"Lien" shall mean a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens, mechanics' or
materialmen's liens, judicial liens and any liens that may attach to a
Financed Vehicle by operation of law.
"Liquidation Proceeds" shall mean, with respect to a
Defaulted Receivable, the monies collected from whatever source during the
Collection Period in which such Receivable became a Defaulted Receivable, net
of the sum of (i) any expenses incurred by the Servicer in connection with
collection of such Receivable and the disposition of the Financed Vehicle and
(ii) any amounts required by law to be remitted to the Obligor.
"London and New York Banking Day" shall mean any business
day on which dealings in deposits in United States dollars are transacted in
the London and New York interbank markets.
"Long Deferment Period Receivable" shall mean any Deferred
Payment Receivable for which the period from the inception of the Receivable
to the date on which the first Scheduled Payment is due is between 360 and 450
days.
"MART II" shall mean MMCA Auto Receivables Trust II, a
Delaware statutory trust, and its successors and assigns.
"MART II Trust Agreement" shall mean the Amended and
Restated Trust Agreement, dated as of July 29, 2002, between MMCA, as
beneficiary, and Chase Manhattan Bank USA, National Association, a national
banking association, as trustee, relating to MART II, as from time to time
amended, supplemented or otherwise modified and in effect.
"Mitsubishi Motors" shall mean Mitsubishi Motors
Corporation, a Japanese corporation, and its successors and assigns, and any
Affiliates thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc.,
a Delaware corporation, and its successors and assigns.
"MMSA" shall mean Mitsubishi Motors Sales of America, Inc.,
a Delaware corporation, and its successors and assigns.
"Modified Receivable" shall have the meaning assigned
thereto in Section 3.2(a) of the Sale and Servicing Agreement.
"Monthly Accrued Note Interest" shall mean, with respect to
any Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class on
the aggregate principal balance of the Notes of such Class as of the
immediately preceding Payment Date, after giving effect to all payments of
principal to Noteholders of such Class on or prior to such preceding Payment
Date (or, in the case of the first Payment Date, the initial principal amount
of such Class of Notes); and (ii) with respect to the Notes collectively, the
sum of Monthly Accrued Note Interest for each Class.
"Monthly Remittance Condition" shall have the meaning
assigned thereto in Section 4.1(e) of the Sale and Servicing Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Swap Payment" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by the
Issuer to the Swap Counterparty, excluding any Swap Termination Payments.
"Net Swap Receipt" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by the
Swap Counterparty to the Issuer, excluding any Swap Termination Payments.
"Note Depository Agreement" shall mean the agreement, dated
as of the Closing Date, among the Issuer, the Indenture Trustee, the
Administrator and The Depository Trust Company, as the initial Clearing
Agency, relating to the Notes.
"Note Interest Rate" shall mean the Class A-1 Rate, the
Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate and
the Class C Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry
Note, the Person who is the beneficial owner of such Book-Entry Note, as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Note Payment Account" shall mean the account established
and maintained as such pursuant to Section 4.1(b) of the Sale and Servicing
Agreement.
"Note Percentage" shall mean, as of any Payment Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate
principal amount of the Notes as of such Payment Date (after giving effect to
any payments of principal on such Payment Date), and the denominator of which
is an amount equal to the sum of the aggregate principal amount of the Notes
and the Certificate Balance, in each case as of such Payment Date (after
giving effect to any payment of principal on such Payment Date).
"Note Pool Factor" shall mean, with respect to any Class of
Notes, as of the close of business on the last day of a Collection Period, a
seven-digit decimal figure equal to the outstanding principal balance of such
Class of Notes (after giving effect to any reductions thereof to be made on
the immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. Each Note Pool Factor will be
1.0000000 as of the Closing Date; thereafter, the Note Pool Factor will
decline to reflect reductions in the outstanding principal amount of such
Class of Notes.
"Note Register" and "Note Registrar" shall have the
respective meanings specified in Section 2.5(a) of the Indenture.
"Noteholder" shall mean a Person in whose name a Note is
registered on the Note Register.
"Noteholders" shall mean the Class A-1 Noteholders, the
Class A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders,
the Class B Noteholders and the Class C Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or
co-purchasers of the related Financed Vehicle purchased in part or in whole by
the execution and delivery of such Receivable, or any other Person who owes or
may be liable for payments under such Receivable.
"Officer's Certificate" shall mean (i) with respect to the
Trust, a certificate signed by any Responsible Officer of the Trust and (ii)
with respect to MART II or the Servicer, a certificate signed by the chairman,
the president, any executive vice president, vice president or the treasurer
of MART II or the Servicer, as applicable.
"Opinion of Counsel" shall mean (i) in the case of the Sale
and Servicing Agreement, a written opinion of counsel (who, in the case of
counsel to MART II or the Servicer, may be an employee of, or outside counsel
to, MART II or the Servicer), which counsel shall be acceptable to the
Indenture Trustee, the Owner Trustee or the Rating Agencies, as applicable,
and (ii) in the case of the Indenture, one or more written opinions of counsel
who may, except as otherwise expressly provided in the Indenture, be employees
of or counsel to the Issuer, MMCA or the Servicer and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with the
applicable requirements of Section 11.1 of the Indenture, and shall be in form
and substance satisfactory to the Indenture Trustee.
"Optional Purchase Percentage" shall mean 10%.
"Outstanding" shall mean, as of the date of determination,
all Notes theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to the Indenture or provision for such notice has
been made, satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a protected purchaser;
provided, that in determining whether the Holders of the requisite principal
amount of the Notes Outstanding have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, MART II, the
Servicer or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes, MART II,
the Servicer or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal
amount of all Notes Outstanding at the date of determination.
"Owner Trust Estate" shall mean all right, title and
interest of the Trust in, to and under the property and rights assigned to the
Trust pursuant to Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
Owner Trustee under the Trust Agreement, its successors in interest and any
successor trustee under the Trust Agreement.
"Payahead" shall mean, with respect to an Actuarial
Receivable, the amount, as of the close of business on the last day of a
Collection Period, so designated in accordance with Section 4.3(a) of the Sale
and Servicing Agreement with respect to such Receivable.
"Payahead Account" shall mean the account established and
maintained as such pursuant to Section 4.1(d) of the Sale and Servicing
Agreement.
"Payahead Balance", with respect to an Actuarial Receivable,
shall mean the sum, as of the close of business on the last day of a
Collection Period, of all Payaheads made by or on behalf of the Obligor with
respect to such Actuarial Receivable (including any amount paid by or on
behalf of the Obligor prior to the Cutoff Date that is due on or after the
Cutoff Date and was not used to reduce the principal balance of such Actuarial
Receivable), as reduced by applications of previous Payaheads with respect to
such Actuarial Receivable, pursuant to Sections 4.3(a) and 4.4 of the Sale and
Servicing Agreement.
"Paying Agent" shall mean (i) with respect to the Trust
Agreement, any paying agent or co-paying agent appointed pursuant to Section
3.9 thereto, and shall initially be Wilmington Trust Company, and (ii) with
respect to the Indenture, the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
thereto and is authorized by the Issuer to make payments to and distributions
from the Collection Account and the Note Payment Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Payment Date" shall mean the 15th day of each month, or if
any such day is not a Business Day, the immediately following Business Day,
commencing January 15, 2003.
"Permitted Investments" shall mean, on any date of
determination, book-entry securities, negotiable instruments or securities
represented by instruments in bearer or registered form with maturities not
exceeding the Business Day preceding the next Payment Date which evidence:
(a) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or State banking or depository institution authorities; provided,
however, that at the time of the investment or contractual commitment to
invest therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust company)
thereof shall have a credit rating from each of the Rating Agencies in the
highest investment category granted thereby;
(c) commercial paper having, at the time of the investment
or contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category granted thereby
(including funds for which the Indenture Trustee or the Owner Trustee or any
of their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in either
case entered into with a depository institution or trust company (acting as
principal) described in clause (b); and
(g) any other investment with respect to which the Trust or
the Servicer has received written notification from the Rating Agencies that
the acquisition of such investment as a Permitted Investment will not result
in a withdrawal or downgrading of the ratings on any Class of Notes or the
Certificates.
"Person" shall mean a legal person, including any
individual, corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, limited liability partnership,
trust, unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Plan" shall mean an employee benefit plan subject to Title
I of ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Pool Balance" shall mean, as of any date of determination,
the aggregate Principal Balance of the Receivables (including the aggregate
Principal Balance of Last Scheduled Payments) as of the close of business on
the last day of the preceding Collection Period or, with respect to any date
of determination during the first Collection Period, as of the Cutoff Date,
after giving effect to, with respect to such Collection Period, (i) all
payments received from Obligors (other than Payaheads), (ii) all Advances to
be made by the Servicer and (iii) all Purchase Amounts to be remitted by MART
II or the Servicer, in each case for such Collection Period, and reduced by
the aggregate Principal Balance of Receivables that became Defaulted
Receivables during such Collection Period.
"Predecessor Note" shall mean, with respect to any
particular Note, every previous Note evidencing all or a portion of the same
debt as that evidenced by such particular Note and, for purposes of this
definition, any Note authenticated and delivered under Section 2.6 of the
Indenture in lieu of a mutilated, lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note.
"Prepayment Date" shall mean the Payment Date specified by
the Servicer pursuant to Section 9.2(a) of the Trust Agreement.
"Prepayment Price" shall mean an amount equal to the
Certificate Balance as of the applicable Prepayment Date.
"Principal Balance" shall mean, with respect to any
Receivable as of any date of determination, the Amount Financed minus the sum
of the following amounts: (i) in the case of an Actuarial Receivable, that
portion of all Scheduled Payments due on or prior to such date allocable to
principal computed in accordance with the Actuarial Method (to the extent
collected or advanced), (ii) in the case of a Simple Interest Receivable, that
portion of all Scheduled Payments actually received on or prior to such date
allocable to principal using the Simple Interest Method (to the extent
collected or advanced), (iii) any refunded portion of extended warranty
protection plan costs, or of physical damage, credit life, or disability
insurance premiums included in the Amount Financed and (iv) any prepayment in
full or partial prepayment applied to reduce the unpaid principal balance of
such Receivable. The Principal Balance of a Defaulted Receivable shall be zero
as of the beginning of the Collection Period following the Collection Period
in which it became a Defaulted Receivable.
"Principal Distribution Amount" shall mean, with respect to
any Payment Date, (i) the total Adjusted Principal Balance of the Receivables
as of the first day of the Collection Period preceding such Payment Date, plus
(ii) the Principal Shortfall Amount, minus (iii) the total Adjusted Principal
Balance of the Receivables as of the last day of the Collection Period
preceding such Payment Date; provided, however, that on the Stated Maturity
Date for each Class of Notes, the principal required to be deposited in the
Note Payment Account shall include the amount necessary (after giving effect
to the other amounts to be deposited in the Note Payment Account on such
Payment Date and allocable to principal) to reduce the outstanding principal
amount of the Notes of such Class to zero.
"Principal Shortfall Amount" shall mean, with respect to any
Payment Date, the excess of the Principal Distribution Amount for the
preceding Payment Date over the amount in respect of the Principal
Distribution Amount that is actually deposited in the Note Payment Account on
such preceding Payment Date.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Program" shall have the meaning assigned thereto in Section
3.11 of the Sale and Servicing Agreement. "Prospectus" shall
have the meaning specified in the Underwriting Agreement.
"Purchase Agreement" shall mean the Purchase Agreement,
dated as of December 1, 2002, between MART II and MMCA, as the same may be
amended, supplemented or otherwise modified and in effect from time to time.
"Purchase Amount" shall mean, with respect to a Payment Date
and a Receivable to be repurchased by MART II or purchased by the Servicer on
such Payment Date, an amount equal to the sum of (a) the Principal Balance of
such Receivable as of the first day of the Collection Period preceding the
Collection Period in which such Payment Date occurs and (b) an amount equal to
the amount of accrued and unpaid interest on such Principal Balance at the
related APR from the date a payment was last made by or on behalf of the
Obligor through the due date for payment of such Receivable in the Collection
Period preceding the Collection Period in which such Payment Date occurs and,
in the case of clauses (a) and (b), after giving effect to the receipt of
monies collected on such Receivable in such preceding Collection Period.
"Purchased Receivable" shall mean, on any date of
determination, a Receivable as to which payment of the Purchase Amount has
been made by MART II pursuant to Section 2.3 of the Sale and Servicing
Agreement or by the Servicer pursuant to Section 3.7 or 9.1 of the Sale and
Servicing Agreement.
"Qualified Institution" shall mean Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, or any depository institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination
by federal or state banking authorities which at all times has a short-term
deposit rating of "Prime-1" by Moody's, "A-1" by S&P and "F1" by Fitch Ratings
and, in the case of any such institution organized under the laws of the
United States of America, whose deposits are insured by the Federal Deposit
Insurance Corporation or any successor thereto.
"Qualified Institutional Buyer" has the meaning specified in
Rule 144A.
"Qualified Trust Institution" shall mean the corporate trust
department of Bank of Tokyo-Mitsubishi Trust Company or any other institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination
by federal or state banking authorities which at all times (i) is authorized
under such laws to act as a trustee or in any other fiduciary capacity, (ii)
has not less than one billion dollars in assets under fiduciary management and
(iii) has a long-term deposit rating that satisfies the Rating Agency
Condition.
"Rating Agency" shall mean Moody's, S&P or Fitch Ratings,
and together, the "Rating Agencies." If no such organization or successor is
any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Issuer, notice of which designation shall be given to the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have been given prior written notice
thereof and that each of the Rating Agencies shall have notified MART II, the
Servicer, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes or the Certificates.
"Realized Losses" shall mean, with respect to each Payment
Date and each Receivable that became a Defaulted Receivable during the related
Collection Period, the excess of the Principal Balance of such Defaulted
Receivable (including the principal of a Last Scheduled Payment) over the
Liquidation Proceeds attributable to such Defaulted Receivable.
"Receivable" shall mean each motor vehicle retail
installment sale contract described in the Schedule of Receivables, and all
rights and obligations thereunder and any amendments, modifications or
supplements to such motor vehicle retail installment sale contract.
"Receivable File" shall have the meaning assigned thereto in
Section 2.4 of the Sale and Servicing Agreement.
"Receivable Yield Supplement Amount" shall mean, with
respect to each Payment Date and each Receivable that was a Deferred Payment
Receivable as of the last day of the preceding Collection Period (other than a
Receivable which became a Defaulted Receivable or a Purchased Receivable or
any Receivable sold by the Indenture Trustee following an Event of Default
pursuant to Section 5.4 of the Indenture), an amount equal to the product of
(x) the Adjusted Principal Balance of such Receivable on the first day of the
preceding Collection Period, (y) the Initial Weighted Average Rate plus 0.25%,
and (z) 1/12.
"Receivables Purchase Price" shall mean $417,436,219.41.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or
(ii) for any Definitive Notes and for the Certificates, the 15th day of the
preceding month, unless such 15th day is not a Business Day, in which case the
immediately preceding Business Day.
"Recoveries" shall mean, with respect to any Collection
Period following the Collection Period in which such Receivable became a
Defaulted Receivable, all monies received by the Servicer with respect to such
Defaulted Receivable during any Collection Period, net of the sum of (i) any
expenses incurred by the Servicer in connection with the collection of such
Receivable and the disposition of the Financed Vehicle (to the extent not
previously reimbursed) and (ii) any payments on such Receivable required by
law to be remitted to the Obligor.
"Redemption Date" shall mean the Payment Date specified by
the Servicer pursuant to Section 10.1 of the Indenture on which date the
Indenture Trustee shall withdraw any amount remaining in the Reserve Account
and deposit the applicable amount thereof payable to the Notes in the Note
Payment Account from any amount remaining in the Reserve Account.
"Redemption Price" shall mean an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest
thereon as of the applicable Redemption Date.
"Registered Holder" shall mean the Person in whose name a
Note is registered on the Note Register on the applicable Record Date.
"Relevant UCC" shall mean the Uniform Commercial Code as in
effect in any relevant jurisdiction. In the event that the Uniform Commercial
Code as in effect on the date hereof in any relevant jurisdiction is revised
subsequent to the date hereof, all references to specific sections of the
Uniform Commercial Code shall be deemed to be references to the successor
provisions of the Uniform Commercial Code.
"Repurchase Event" shall have the meaning specified in
Section 6.2 of the Purchase Agreement.
"Required Rating" shall mean a rating on short-term
unsecured debt obligations of "Prime-1" by ▇▇▇▇▇'▇, "A-1" by S&P and "F1+" by
Fitch Ratings, and any requirement that short-term unsecured debt obligations
have the "Required Rating" shall mean that such short-term unsecured debt
obligations have the foregoing required ratings from each of such Rating
Agencies.
"Reserve Account" shall mean the account established and
maintained as such pursuant to Section 4.7(a) of the Sale and Servicing
Agreement.
"Reserve Account Advance Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Reserve Account Amount" shall mean, with respect to any
Payment Date, the amount on deposit in the Reserve Account. Unless
specifically stated to the contrary, the Reserve Account Amount shall be
calculated after giving effect to all deposits and withdrawals therefrom on
the prior Payment Date (or, in the case of the first Payment Date, the Closing
Date) and all interest and other income (net of losses and investment
expenses) on such amounts during the related Collection Period.
"Reserve Account Initial Deposit" shall mean $20,313,787.62.
"Reserve Account Property" shall have the meaning assigned
thereto in Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account TRP Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Responsible Officer" shall mean (a) with respect to the
Indenture Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee with direct responsibility for the administration of the
Indenture and the other Basic Documents on behalf of the Indenture Trustee and
also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject, (b) with respect to the Owner Trustee, any officer
within the Corporate Trust Office of the Owner Trustee with direct
responsibility for administration of the Trust, including any vice president,
assistant vice president, secretary, assistant secretary, financial services
officer or any other officer of the Owner Trustee, customarily performing
functions similar to those performed by any of the above designated officers
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject and shall also mean any officer of the Administrator
and (c) with respect to the Issuer, any officer of the Owner Trustee who is
authorized to act for or on behalf of the Owner Trustee in matters relating to
the Issuer and who is identified on the list of Responsible Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter) and, for so
long as the Administration Agreement is in full force and effect, any officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement.
"Rule 144A" shall have the meaning assigned to such term in
Section 3.4(d)(i) of the Trust Agreement.
"Rule 144A Information" shall have the meaning assigned to
such term in Section 3.4(e) of the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of December 1, 2002, by and among the Issuer,
MART II and the Servicer, as from time to time amended, supplemented or
otherwise modified and in effect.
"Sale Price" shall mean, with respect to any Final Payment
Receivable, an amount equal to the Last Scheduled Payment, minus the sum of
any charges for Excess Wear and Tear and Excess Mileage and the amount of any
disposition fee payable to the Servicer.
"Schedule of Receivables" shall mean the list of Receivables
attached as Exhibit B to the Purchase Agreement.
"Scheduled Payment" shall mean, for any Collection Period
for any Receivable, the amount indicated in such Receivable as required to be
paid by the Obligor in such Collection Period (without giving effect to
modifications of payment terms pursuant to Section 3.2 of the Sale and
Servicing Agreement or any rescheduling in any insolvency or similar
proceedings).
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities" shall have the meaning specified in the MART II
Trust Agreement.
"Seller" shall mean MART II, in its capacity as seller of
the Receivables under the Sale and Servicing Agreement, and each successor
thereto (in the same capacity) pursuant to Section 6.3 of the Sale and
Servicing Agreement.
"Servicer" shall mean MMCA, in its capacity as servicer
under the Sale and Servicing Agreement, and any successor Servicer thereunder.
"Servicer's Certificate" shall have the meaning assigned
thereto in Section 3.9 of the Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to any Payment
Date, the fee payable to the Servicer for services rendered during the related
Collection Period, determined pursuant to and defined in Section 3.8 of the
Sale and Servicing Agreement.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Receivables, whose name appears on a list of servicing officers attached to an
Officer's Certificate furnished on the Closing Date to the Owner Trustee and
the Indenture Trustee by the Servicer, as such list may be amended from time
to time by the Servicer in writing.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial Assets
and Extinguishments of Liabilities.
"Simple Interest Method" shall mean the method of allocating
a fixed payment between principal and interest, pursuant to which the portion
of such payment that is allocated to interest is equal to the product of the
APR multiplied by the unpaid principal balance multiplied by the period of
time (expressed as a fraction of a year, based on the actual number of days in
the calendar month and a 365-day year) elapsed since the preceding payment was
made and the remainder of such payment is allocable to principal.
"Simple Interest Receivable" shall mean any Receivable under
which the portion of a payment allocable to interest and the portion allocable
to principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Balance" shall mean, with respect to any
Payment Date, the lesser of (a) 6.00% of the Adjusted Pool Balance and (b) the
outstanding principal amount of the Notes as of such Payment Date (after
giving effect to any principal payment made on such Payment Date).
Notwithstanding the foregoing, if (x) each Rating Agency delivers a letter to
the Indenture Trustee that the use of any new formulation requested by MART II
would not cause a downgrade, qualification or withdrawal of the then current
rating on any Class of Notes and (y) an Opinion of Counsel to the effect that
the proposed change will not adversely affect the status of the Notes as debt
is delivered to the Indenture Trustee, then the Specified Reserve Balance may
be changed in accordance with such letters without an amendment hereto.
"Specified Yield Supplement Account Balance" shall mean, (i)
on the Closing Date, $11,837,357.36, and (ii) as of the close of business on
any Payment Date, an amount equal to the sum of all projected Yield Supplement
Amounts for all future Payment Dates, assuming that no prepayments are made on
the Deferred Payment Receivables.
"Standard Receivable" shall mean all rights and obligations
under a Contract listed on a Schedule of Receivables which is not a Final
Payment Receivable.
"State" shall mean any of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ or the District of Columbia.
"Stated Maturity Date" shall mean the Class A-1 Stated
Maturity Date, the Class A-2 Stated Maturity Date, the Class A-3 Stated
Maturity Date, the Class A-4 Stated Maturity Date, the Class B Stated Maturity
Date and the Class C Stated Maturity Date, collectively, or any of them, as
the context requires.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended, supplemented or otherwise modified and in effect from time to time.
"Subtrust" shall have the meaning specified in the MART II
Trust Agreement.
"Subtrust Assets" shall have the meaning specified in the
MART II Trust Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e) of the Indenture.
"Supplemental Servicing Fee" shall mean, with respect to any
Payment Date, the fee payable to the Servicer for services rendered during the
related Collection Period, determined pursuant to and defined in Section 3.8
of the Sale and Servicing Agreement.
"Swap Counterparty" shall initially mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. as a swap counterparty under the Interest Rate Swap
Agreement, or any successor or replacement swap counterparty from time to time
under the Interest Rate Swap Agreement. A Swap Counterparty (or the
institution guaranteeing such Swap Counterparty's obligations) must have a
long-term rating at least equal to "A1" by ▇▇▇▇▇'▇ (or, if the Swap
Counterparty does not have a short-term rating by ▇▇▇▇▇'▇, "Aa3") and "A" by
Fitch Ratings, and a short-term rating at least equal to "Prime-1" by ▇▇▇▇▇'▇,
"A-1" by S&P and "F1" by Fitch Ratings at the time of entering into the
Interest Rate Swap Agreement.
"Swap Termination Payment" shall mean any termination
payment payable by the Issuer to the Swap Counterparty or by the Swap
Counterparty to the Issuer under the Interest Rate Swap Agreement.
"Telerate Page 3750" shall mean the display designated as
page "3750" by Telerate, Inc. (or such other page as may replace Telerate Page
3750 on that service for the purpose of displaying London interbank offered
rates of major banks).
"Total Available Funds" shall mean, for any Payment Date, an
amount equal to the sum of (i) the Available Funds for such Payment Date and
(ii) the Reserve Account TRP Draw Amount, if any, for such Payment Date.
"Total Required Payment" shall mean, on any Payment Date,
the sum of (i) the Total Servicing Fee, (ii) any Net Swap Payments and any
Swap Termination Payments due and payable to the Swap Counterparty, (iii) the
Accrued Note Interest and (iii) the Principal Distribution Amount with respect
to such Payment Date.
"Total Servicing Fee" shall mean, with respect to any
Payment Date, the sum of (i) the Servicing Fee for the related Collection
Period plus (ii) all accrued and unpaid Servicing Fees for prior Collection
Periods.
"Total Yield Supplement Overcollateralization Amount" shall
mean, with respect to any Payment Date, the sum of the Yield Supplement
Overcollateralization Amounts with respect to all Receivables (other than
Purchased Receivables or Defaulted Receivables) as of such Payment Date.
"Transfer" shall have the meaning assigned to such term in
Section 3.2 of the Trust Agreement.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References
herein to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean MMCA Auto Owner Trust 2002-5, a Delaware
statutory trust.
"Trust Accounts" shall have the meaning assigned thereto in
Section 5.1(a) of the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of December 1, 2002, between MART II and the Owner
Trustee, as the same may be amended, supplemented or otherwise modified and in
effect from time to time.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture for the benefit of the Noteholders and the
Swap Counterparty (including, without limitation, all property and interests
Granted to the Indenture Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust
Indenture Act of 1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, as of any date of
determination, the Receivables and other property related thereto sold,
transferred, assigned and otherwise conveyed by MART II to the Trust pursuant
to Section 2.1(a) of the Sale and Servicing Agreement.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated December 10, 2002, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as representative of the several underwriters, and MART II.
"Void Transfer" shall have the meaning assigned to such term
in Section 3.2 of the Trust Agreement.
"Weighted Average Rate" shall mean, with respect to any date
of determination, a per annum rate equal to (1) the sum of (a) the product of
(x) the outstanding principal amount of the Class A-1 Notes on such date and
(y) the Class A-1 Rate, plus (b) the product of (x) the outstanding principal
amount of the Class A-2 Notes on such date and (y) the Class A-2 Rate, plus
(c) the product of (x) the outstanding principal amount of the Class A-3 Notes
on such date and (y) the Class A-3 Rate, plus (d) the product of (x) the
outstanding principal amount of the Class A-4 Notes on such date and (y) the
Class A-4 Rate, plus (e) the product of (x) the outstanding principal amount
of the Class B Notes on such date and (y) the Class B Rate, plus (f) the
product of (x) the outstanding principal amount of the Class C Notes on such
date and (y) the Class C Rate, divided by (2) the sum of the outstanding
principal amount of the Notes on such date plus the Certificate Balance on
such date; provided, that if the date of determination is a Payment Date, then
the outstanding principal amount of any class of Notes shall be determined
after giving effect to all payments made on such date.
"Yield Supplement Account" shall have the meaning assigned
thereto in Section 5.1(a) of the Sale and Servicing Agreement.
"Yield Supplement Agreement" shall mean the Yield Supplement
Agreement, dated as of December 1, 2002, by and between MART II and MMCA, as
amended, modified or supplemented from time to time, substantially in the form
of Exhibit D to the Sale and Servicing Agreement.
"Yield Supplement Amount" shall mean, with respect to any
Payment Date, the sum of all Receivable Yield Supplement Amounts for the
related Collection Period.
"Yield Supplement Letter of Credit" shall mean any letter of
credit issued by the Letter of Credit Bank, as permitted by Section 5.1 of the
Sale and Servicing Agreement, to support payments of the Yield Supplement
Amount under the Yield Supplement Agreement.
"Yield Supplement Overcollateralization Amount" shall mean,
with respect to any Payment Date and any Receivable (other than a Purchased
Receivable or a Defaulted Receivable), an amount equal to the excess of (i)
the present value of the remaining Scheduled Payments due under such
Receivable as of the later to occur of (x) the last day of the preceding
Collection Period and (y) the first date on which interest accrues on such
Receivable as set forth in the related Contract, discounted at a rate equal to
the APR of such Receivable, over (ii) the present value of the remaining
Scheduled Payments due under such Receivable as set forth in clause (i) above,
discounted at a rate equal to the greater of the APR of the Receivable and
6.25%. For the purposes of the foregoing calculation, the Payahead Balance
with respect to any Actuarial Receivable shall be applied to reduce the amount
of any Scheduled Payment on the related Actuarial Receivable in the order in
which such Scheduled Payments were due.