Exhibit 4.2
------------------------------------------------------------------------------
AMENDED AND RESTATED INDENTURE
between
MMCA AUTO OWNER TRUST 2001-2,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of August 8, 2002
---------------------------
$146,169,000 3.8975% Class A-1 Asset Backed Notes
$94,000,000 Floating Rate Class A-2 Asset Backed Notes
$229,000,000 Floating Rate Class A-3 Asset Backed Notes
$150,000,000 Floating Rate Class A-4 Asset Backed Notes
$46,797,000 5.75% Class B Asset Backed Notes
----------------------------
------------------------------------------------------------------------------
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
SECTION 1.1 Definitions.................................................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act..........................................13
SECTION 1.3 Rules of Construction......................................................................13
ARTICLE II
THE NOTES
SECTION 2.1 Form ..................................................................................14
SECTION 2.2 Execution, Authentication and Delivery.....................................................14
SECTION 2.3 Temporary Notes............................................................................15
SECTION 2.4 Tax Treatment..............................................................................15
SECTION 2.5 Registration; Registration of Transfer and Exchange........................................15
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.................................................17
SECTION 2.7 Persons Deemed Owner.......................................................................18
SECTION 2.8 Payments ..................................................................................18
SECTION 2.9 Cancellation...............................................................................21
SECTION 2.10 Release of Collateral.....................................................................21
SECTION 2.11 Book-Entry Notes..........................................................................22
SECTION 2.12 Notices to Clearing Agency................................................................23
SECTION 2.13 Definitive Notes..........................................................................23
SECTION 2.14 Authenticating Agents.....................................................................23
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant...........................................................................24
SECTION 3.2 Maintenance of Office or Agency............................................................24
SECTION 3.3 Money for Payments To Be Held in Trust.....................................................24
SECTION 3.4 Existence..................................................................................26
SECTION 3.5 Protection of Trust Estate.................................................................26
SECTION 3.6 Opinions as to Trust Estate................................................................26
SECTION 3.7 Performance of Obligations; Servicing of Receivables.......................................27
SECTION 3.8 Negative Covenants.........................................................................28
SECTION 3.9 Annual Statement as to Compliance..........................................................29
SECTION 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust
Assets............................................................................29
SECTION 3.11 No Other Business.........................................................................29
SECTION 3.12 No Borrowing..............................................................................30
SECTION 3.13 Servicer's Obligations....................................................................30
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities.........................................30
SECTION 3.15 Capital Expenditures......................................................................30
SECTION 3.16 Further Instruments and Acts..............................................................30
SECTION 3.17 Restricted Payments.......................................................................30
SECTION 3.18 Notice of Events of Default...............................................................30
SECTION 3.19 Removal of Administrator..................................................................30
SECTION 3.20 Calculation Agent.........................................................................30
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture....................................................31
SECTION 4.2 Satisfaction and Discharge of the Notes....................................................32
SECTION 4.3 Application of Trust Money.................................................................33
SECTION 4.4 Repayment of Monies Held by Paying Agent...................................................34
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default..........................................................................34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.........................................35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee...........................................................................36
SECTION 5.4 Remedies; Priorities.......................................................................38
SECTION 5.5 Optional Preservation of the Receivables...................................................39
SECTION 5.6 Limitation of Suits........................................................................39
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest..........................................................................40
SECTION 5.8 Restoration of Rights and Remedies.........................................................40
SECTION 5.9 Rights and Remedies Cumulative.............................................................40
SECTION 5.10 Delay or Omission Not a Waiver............................................................41
SECTION 5.11 Control by Noteholders....................................................................41
SECTION 5.12 Waiver of Past Defaults...................................................................41
SECTION 5.13 Undertaking for Costs.....................................................................42
SECTION 5.14 Waiver of Stay or Extension Laws..........................................................42
SECTION 5.15 Action on Notes...........................................................................42
SECTION 5.16 Performance and Enforcement of Certain Obligations........................................42
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee................................................................44
SECTION 6.2 Rights of Indenture Trustee................................................................45
SECTION 6.3 Individual Rights of Indenture Trustee.....................................................46
SECTION 6.4 Indenture Trustee's Disclaimer.............................................................46
SECTION 6.5 Notice of Defaults.........................................................................46
SECTION 6.6 Reports by Indenture Trustee to Holders....................................................46
SECTION 6.7 Compensation and Indemnity.................................................................46
SECTION 6.8 Replacement of Indenture Trustee...........................................................47
SECTION 6.9 Successor Indenture Trustee by Merger......................................................48
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........................48
SECTION 6.11 Eligibility; Disqualification.............................................................49
SECTION 6.12 Preferential Collection of Claims Against Issuer..........................................50
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.....................................50
SECTION 6.14 Interest Rate Swap Provisions.............................................................50
ARTICLE VII
NOTEHOLDERS' LISTS; REPORTING
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders.......................................................................52
SECTION 7.2 Preservation of Information; Communications to Noteholders.................................52
SECTION 7.3 Reporting by Issuer........................................................................53
SECTION 7.4 Reporting and Notices by Indenture Trustee.................................................53
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money........................................................................54
SECTION 8.2 Trust Accounts.............................................................................54
SECTION 8.3 General Provisions Regarding Accounts......................................................54
SECTION 8.4 Release of Trust Estate....................................................................55
SECTION 8.5 Opinion of Counsel.........................................................................56
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.....................................56
SECTION 9.2 Supplemental Indentures with Consent of Noteholders........................................58
SECTION 9.3 Execution of Supplemental Indentures.......................................................59
SECTION 9.4 Effect of Supplemental Indenture...........................................................60
SECTION 9.5 Conformity with Trust Indenture Act........................................................60
SECTION 9.6 Reference in Notes to Supplemental Indentures..............................................60
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption................................................................................60
SECTION 10.2 Form of Redemption Notice.................................................................60
SECTION 10.3 Notes Payable on Redemption Date..........................................................61
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.................................................61
SECTION 11.2 Form of Documents Delivered to Indenture Trustee..........................................63
SECTION 11.3 Acts of Noteholders.......................................................................63
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies...........................64
SECTION 11.5 Notices to Noteholders; Waiver............................................................66
SECTION 11.6 Alternate Payment and Notice Provisions...................................................66
SECTION 11.7 Conflict with Trust Indenture Act.........................................................66
SECTION 11.8 Effect of Headings and Table of Contents..................................................66
SECTION 11.9 Successors and Assigns....................................................................67
SECTION 11.10 Separability.............................................................................67
SECTION 11.11 Benefits of Indenture....................................................................67
SECTION 11.12 Legal Holiday............................................................................67
SECTION 11.13 Governing Law............................................................................67
SECTION 11.14 Counterparts.............................................................................67
SECTION 11.15 Recording of Indenture...................................................................67
SECTION 11.16 Trust Obligation.........................................................................67
SECTION 11.17 No Petition; Subordination; Claims Against Seller........................................68
SECTION 11.18 Inspection...............................................................................68
SECTION 11.19 Employee Benefit Plans...................................................................68
SCHEDULES
SCHEDULE A Schedule of Receivables.............................................................SA-1
SCHEDULE I List of Permitted Investments.......................................................SI-1
EXHIBITS
EXHIBIT A-1 Form of Class A-1 Note.............................................................A-1-1
EXHIBIT A-2 Form of Class A-2 Note .........................................................A-2-1
EXHIBIT A-3 Form of Class A-3 Note.............................................................A-3-1
EXHIBIT A-4 Form of Class A-4 Note.............................................................A-4-1
EXHIBIT B Form of Class B Note.................................................................B-1
EXHIBIT C Form of Opinion of Counsel Pursuant to Section 3.6(a)................................C-1
AMENDED AND RESTATED INDENTURE, dated as of August 8,
2002 (this "Indenture"), amending and restating in its entirety the
INDENTURE, dated as of June 1, 2001, between MMCA AUTO OWNER TRUST 2001-2,
a Delaware business trust (the "Issuer"), and BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, a New York banking corporation, as trustee for the benefit
of the Noteholders and as agent for the Swap Counterparties, and not in its
individual capacity (in such capacity, the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are parties
to an Indenture, dated as of June 1, 2001 (the "Original Indenture");
WHEREAS, pursuant to Section 1.1(b) of the Original
Indenture, capitalized terms used but not otherwise defined therein have
the respective meanings set forth in, or incorporated by reference into,
the Sale and Servicing Agreement, dated as of June 1, 2001, by and among
the Issuer, the Seller and the Servicer (the "Original Sale and Servicing
Agreement");
WHEREAS, the Original Sale and Servicing Agreement has
been amended and restated, effective the date hereof by the parties
thereto;
WHEREAS, the Issuer desires to amend and restate the
Original Indenture pursuant to Section 9.1(a) thereof to incorporate by
reference the defined terms in the amended and restated Sale and Servicing
Agreement;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, the Indenture Trustee is willing to enter into
this Indenture;
NOW, THEREFORE, for and in consideration of the premises
and the receipt of the Notes by the Noteholders, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Noteholders,
that the Indenture be amended and restated in its entirety as follows:
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
3.8975% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), Class A-2
Floating Rate Asset Backed Notes (the "Class A-2 Notes"), Class A-3
Floating Rate Asset Backed Notes (the "Class A-3 Notes"), Class A-4
Floating Rate 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") and 5.75% Class B Asset Backed Notes (the "Class B Notes"
and together with the Class A Notes, the "Notes") and the Swap
Counterparties:
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 and the Swap Counterparties, 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 Actuarial
Receivables, monies due thereunder after the Cutoff Date (including
Payaheads) and, with respect to Simple Interest Receivables, monies
received thereunder after the Cutoff Date; (c) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and
any other interest of the Issuer in the 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 Financed Vehicles or Obligors; (e) all rights to receive
proceeds with respect to the Receivables from recourse to Dealers thereon
pursuant to the Dealer Agreements; (f) all rights to the Receivable Files;
(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 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 Agreements; 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 Grant is 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 Counterparties under the Interest Rate Swap
Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of
the Holders of the Notes and the Swap Counterparties, 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 Counterparties may be adequately and
effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. (a) Except as otherwise
specified herein or as the context may otherwise require, the following
terms have the respective meanings set forth below for all purposes of this
Indenture.
"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).
"Administration Agreement" shall mean the Administration
Agreement, dated as of June 1, 2001, 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.
"Authenticating Agent" shall have the meaning specified
in Section 2.14.
"Basic Documents" shall mean this Indenture, the
Certificate of Trust, the Trust Agreement, the Assignments (as defined in
the Purchase Agreement), the Sale and Servicing Agreement, the Purchase
Agreement, the Administration Agreement, the Note Depository Agreement, the
Interest Rate Swap Agreements, 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.
"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 have the meaning specified in
Section 3.20.
"Certificate of Trust" shall mean the certificate of
trust of the Issuer substantially in the form of Exhibit C to the Trust
Agreement.
"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 or the Class B Notes.
"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 the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A Percentage" shall mean approximately 91.00%,
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
and the Class B Notes.
"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 $146,169,000 aggregate
initial principal amount of 3.8975% Class A-1 Asset Backed Notes issued by
the Issuer pursuant to this Indenture, substantially in the form of Exhibit
A-1 to this Indenture.
"Class A-1 Rate" shall mean 3.8975% per annum.
"Class A-1 Stated Maturity Date" shall mean the July 2002
Payment Date.
"Class A-2 Interest Rate Swap" shall mean the interest
rate swap as to the Class A-2 Notes with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services
Inc., as Swap Counterparty, to hedge the floating interest Class A-2 Rate.
"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 $94,000,000 aggregate
initial principal amount of Class A-2 Floating Rate Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-2 to this Indenture.
"Class A-2 Rate" shall mean one-month LIBOR plus 0.10%.
"Class A-2 Stated Maturity Date" shall mean the November
2003 Payment Date.
"Class A-3 Interest Rate Swap" shall mean the interest
rate swap as to the Class A-3 Notes with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services
Inc., as Swap Counterparty, to hedge the floating interest Class A-3 Rate.
"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 $229,000,000 aggregate
initial principal amount of Class A-3 Floating Rate Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-3 to this Indenture.
"Class A-3 Rate" shall mean one-month LIBOR plus 0.18%.
"Class A-3 Stated Maturity Date" shall mean the September
2005 Payment Date.
"Class A-4 Interest Rate Swap" shall mean the interest
rate swap as to the Class A-4 Notes with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services
Inc., as Swap Counterparty, to hedge the floating interest Class A-4 Rate.
"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 $150,000,000 aggregate
initial principal amount of Class A-4 Floating Rate Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-4 to this Indenture.
"Class A-4 Rate" shall mean one-month LIBOR plus 0.25%.
"Class A-4 Stated Maturity Date" shall mean the July 2006
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 $46,797,000 aggregate
initial principal amount of 5.75% Class B Asset Backed Notes issued by the
Issuer pursuant to this Indenture, substantially in the form of Exhibit B
to this Indenture.
"Class B Percentage" shall mean approximately 9.00%,
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 and the Class B Notes.
"Class B Rate" shall mean 5.75% per annum.
"Class B Stated Maturity Date" shall mean the June 2007
Payment Date.
"Clearing Agency" shall mean an organization registered
as a "clearing agency" pursuant to Section 17A of the Exchange Act.
"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.
"Closing Date" shall mean June 14, 2001.
"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 this Indenture.
"Commission" shall mean the Securities and Exchange
Commission.
"Control Agreement" shall mean the Securities Account
Control Agreement, dated as of June 1, 2001, by and among the Seller, 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 the principal office
of the Indenture Trustee at which at any particular time its corporate
trust business shall be administered, which office at date of execution of
this Indenture 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 and the Issuer, or the principal corporate trust office
of any successor Indenture Trustee at the address designated by such
successor Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" shall mean any occurrence that is, or with
notice or the lapse of time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in
Section 2.11.
"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.
"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.
"Final Scheduled Maturity Date" shall mean with respect
to any Receivable, December 27, 2006.
"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 this 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" or "Noteholder" shall mean the Person in whose
name a Note is registered on the Note Register.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee under
this Indenture, or any successor Indenture Trustee under this 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, the Seller 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, the Seller or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Seller 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, 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 this Indenture and that
the signer is Independent within the meaning thereof.
"Index Maturity" shall mean one month.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, and with respect to Class B Notes, the period from and
including the 15th day of the calendar month immediately preceding such
Payment Date to but excluding the 15th day of the calendar month in which
such Payment Date occurs and, with respect to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the period
from and including the preceding Payment Date through the day preceding the
Payment Date; provided, that for the first Payment Date, the "Interest
Accrual Period" shall mean the period from and including the Closing Date
through July 14, 2001 and July 15, 2001, respectively.
"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 Agreements" shall mean the interest
rate swap agreement relating to the Class A-2 Interest Rate Swap, the
interest rate swap agreement relating to the Class A-3 Interest Rate Swap
and the interest rate swap agreement relating to the Class A-4 Interest
Rate Swap, including all schedules and confirmations thereto, between the
Issuer and the related Swap Counterparty, as the same may be amended,
supplemented, renewed, extended or replaced from time to time, which
agreements provide for payments on notional amounts equal to the
outstanding principal balance of the Class A-2 Notes, the Class A-3 Notes
or the Class A-4 Notes, as the case may be. Each Interest Rate Swap
Agreement shall provide that a termination event will occur under the
circumstances described in Section 6.14(g) herein.
"Interest Reset Date" means, with respect to the floating
rate Class A-2 Notes, Class A-3 Notes and the Class A-4 Notes, the first
day of the applicable Interest Accrual Period.
"Issuer" shall mean MMCA Auto Owner Trust 2001-2, 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.
"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:
(1) 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.
(2) 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 3.99000%.
"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 Note, a Class A-3
Note or a Class A-4 Note.
"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.
"MART Trust Agreement" shall mean the Amended and
Restated Trust Agreement, dated as of October 1, 1999, between MMCA, as
beneficiary, and Chase Manhattan Bank USA, N.A., a national banking
association (as successor to Chase Manhattan Bank Delaware), as trustee,
relating to the Seller, as from time to time amended, supplemented or
otherwise modified and in effect.
"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 amount of the Notes of such Class as
of the immediately preceding Payment Date, after giving effect to all
payments of principal to Noteholders on or prior to such preceding Payment
Date (or, in the case of the first Payment Date, the initial principal
amount of the Notes); and (ii) with respect to the Notes collectively, the
sum of Monthly Accrued Note Interest for each Class.
"Net Swap Payment" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
the Issuer to such Swap Counterparty, excluding any Swap Termination
Payments.
"Net Swap Receipt" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
such Swap Counterparty to the Issuer, excluding any Swap Termination
Payments.
"Note Depository Agreement" shall mean the agreement
dated as of June 14, 2001, 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, in the case of the Class
A-1 Notes, the Class A-1 Rate, in the case of the Class A-2 Notes, the
Class A-2 Rate, in the case of the Class A-3 Notes, the Class A-3 Rate, in
the case of the Class A-4 Notes, the Class A-4 Rate, and in the case of the
Class B Notes, the Class B Rate.
"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 Register" and "Note Registrar" shall have the
respective meanings specified in Section 2.5(a).
"Noteholders" shall mean the Class A-1 Noteholders, the
Class A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders
and the Class B 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 and the Class B Notes,
collectively.
"Officer's Certificate" shall mean a certificate signed
by any Responsible Officer of the Issuer, under the circumstances described
in, and otherwise complying with, the applicable requirements of Section
11.1, and delivered to the Indenture Trustee. Unless otherwise specified,
any reference in this Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Responsible Officer of the Issuer.
"Opinion of Counsel" shall mean one or more written
opinions of counsel who may, except as otherwise expressly provided in this
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, and
shall be in form and substance satisfactory to the Indenture Trustee.
"Original Sale and Servicing Agreement" shall mean the
Sale and Servicing Agreement, dated as of June 1, 2001, by and among the
Issuer, the Seller and the Servicer.
"Outstanding" shall mean, as of the date of
determination, all Notes theretofore authenticated and delivered under this
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 this 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 this
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, the Seller, 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, the Seller, 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 Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
Owner Trustee under the Trust Agreement, or any successor Owner Trustee
under the Trust Agreement.
"Paying Agent" shall mean the Indenture Trustee or any
other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 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 July 16, 2001.
"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.
"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 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.
"Proceeding" shall mean any suit in equity, action at law
or other judicial or administrative proceeding.
"Rating Agency" shall mean ▇▇▇▇▇'▇ or Fitch, 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 the
Seller, the Servicer, the Indenture Trustee and the Owner Trustee that such
action shall not result in a reduction or withdrawal of the then current
rating assigned to any Class of Notes.
"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 that have been issued pursuant to Section
2.13, the fifteenth (15th) day of the preceding month, unless such
fifteenth (15th) day is not a Business Day, in which case the immediately
preceding Business Day.
"Redemption Date" shall mean, in the case of a redemption
of Notes pursuant to Section 10.1, the Payment Date specified by the
Servicer pursuant to Section 10.1 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, in the case of a
redemption of Notes pursuant to Section 10.1, 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.
"Responsible Officer" shall mean, (a) 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 and (b) with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee with direct responsibility for the administration of this Indenture
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.
"Sale and Servicing Agreement" shall mean the Amended and
Restated Sale and Servicing Agreement, dated as of August 8, 2002, by and
among the Issuer, the Seller and the Servicer, amending and restating the
Original Sale and Servicing Agreement, as such Sale and Servicing Agreement
shall from time to time be amended, supplemented or otherwise modified and
in effect.
"Securities" shall have the meaning specified in the MART
Trust Agreement.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Seller" shall mean MMCA Auto Receivables Trust, a
Delaware business trust, in its capacity as seller under the Sale and
Servicing Agreement, and its successors-in-interest.
"Servicer" shall mean Mitsubishi Motors Credit of
America, Inc., a Delaware corporation, in its capacity as servicer under
the Sale and Servicing Agreement, and any successor Servicer thereunder.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities.
"State" shall mean any of the fifty States of the United
States of America 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 and the Class B Stated
Maturity Date, collectively, or any of them, as the context requires.
"Subtrust" shall have the meaning specified in the MART
Trust Agreement.
"Subtrust Assets" shall have the meaning specified in the
MART Trust Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e).
"Swap Counterparty" shall initially mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. as swap counterparty under the Interest Rate Swap
Agreements, or any successors or replacement swap counterparties from time
to time under any Interest Rate Swap Agreement. Each Swap Counterparty (or
the institution guaranteeing such Swap Counterparty's obligations) must
have a long-term rating at least equal to "A2" by ▇▇▇▇▇'▇ and "A" by Fitch,
and a short-term rating at least equal to "F-1" by Fitch at the time of
entering into the Interest Rate Swap Agreements.
"Swap Termination Payment" shall mean any termination
payment payable by the Issuer to a Swap Counterparty or by a Swap
Counterparty to the Issuer under an 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 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 (iv) the Principal Distribution Amount with
respect to such Payment Date.
"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 this Indenture for the benefit of the Noteholders
and the Swap Counterparties (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.
(b) Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but not otherwise
defined herein have the respective meanings set forth in, or incorporated
by reference into, the Sale and Servicing Agreement for all purposes of
this Indenture.
SECTION 1.2 Incorporation 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.
SECTION 1.3 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined
has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without
limitation;
(v) words in the singular include the plural and
words in the plural include the singular; and
(vi) any agreement, instrument or statute
defined or referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement, instrument
or statute as from time to time amended, modified or supplemented
and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and
assigns.
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 and the Class B Notes,
together with the Indenture Trustee's Certificates of Authentication, shall
be in substantially the form set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit B, 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 ▇-▇, ▇-▇, ▇-▇,
▇-▇ and B 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 $146,169,000, Class A-2 Notes for original issue in an
aggregate principal amount of $94,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $229,000,000, Class A-4 Notes for
original issue in an aggregate principal amount of $150,000,000, and Class
B Notes for original issue in an aggregate principal amount of $46,797,000.
The aggregate principal amounts of Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class B 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 fifteen (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 (7) 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 Agreements
(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 Counterparties,
(A) to the Note Payment Account, the Accrued
Note Interest for the Class A Notes, and
(B) to the Swap Counterparties, any Swap
Termination Payments;
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) to the Note Payment Account, the Accrued
Note Interest for the Class B Notes;
(v) to the Note Payment Account, the Principal
Distribution Amount;
(vi) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve Account up to
the Specified Reserve Balance; and
(vii) to the Certificate Distribution Account,
any remaining portion of 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
to the Class A Noteholders pro rata in proportion to the Accrued
Note Interest for each Class of Notes);
(ii) to the Class B Noteholders, Accrued Note
Interest;
(iii) 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;
(iv) following payment in full of the Class A-1
Notes, the Class A Percentage of the 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; and
(v) following payment in full of the Class A-1
Notes, the Class B Percentage of the Principal Distribution Amount
in reduction of principal to the Class B Noteholders until the
Class B 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 and the principal amount of the Class B
Notes, to the extent not previously paid, will be due on the Class B Stated
Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes and the Class B 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 and the Class B Rate, respectively, and such interest shall be due
and payable on each Payment Date. Interest on the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall be
calculated on the basis of the actual days elapsed and a 360-day year.
Interest on the Class B Notes shall be calculated on the basis of a 360-day
year of twelve 30-day months. 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 Counterparties, the
amount of the Net Swap Payments then due under the Interest Rate
Swap Agreements (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 Counterparties, (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 Counterparties, any Swap Termination
Payments;
(v) fifth, to the Swap Counterparties for any
remaining Swap Termination Payments pro rata based on the amount
of their respective Swap Termination Payments;
(vi) sixth, 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;
(vii) seventh, 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;
(viii) eighth, to the Class B Noteholders,
Accrued Note Interest;
(ix) ninth, 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; and
(x) tenth, 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 Agreements, 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 (2) 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 thirty (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 business 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 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
Counterparties and the Noteholders in such Trust Estate against
the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section 3.5.
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 C.
(b) On or before March 31, in each calendar year,
beginning in 2002, 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 execution
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
execution 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 March 31 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 thirty (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 hereof 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 March 31 of each year
(commencing with the year 2002), 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
Counterparties 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 Agreements 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, Class A-3 Notes or Class
A-4 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 and Class A-4 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 hereof, (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 Swap Counterparties 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 hereof;
(iii) the obligations of the Issuer to the
Indenture Trustee under Section 6.7 hereof; 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 hereof)
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 Counterparties;
(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 ninety-first (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
Counterparties of all sums, if any, due or to become due to the Swap
Counterparties under and in accordance with this Indenture and the Interest
Rate Swap Agreements, 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 (5) 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
sixty (60) days or in the case of a materially incorrect
representation and warranty thirty (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 sixty (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 (5) 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 Counterparties.
(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 Agreements 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
(5) 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 Counterparties, 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 Counterparties 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 Counterparties 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 Counterparties 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 Counterparties
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 any Swap Counterparty any plan of
reorganization, arrangement, adjustment or composition affecting the Notes
or the Interest Rate Swap Agreements 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 Counterparties.
(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 Counterparties; 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 Agreements, 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
Agreements, 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 Agreements, 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 fifteen (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 Counterparties, 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 sixty (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 Defaults. 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 Counterparties in
accordance with the Interest Rate Swap Agreements 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 Agreements 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 Counterparties of its obligations under the Interest Rate Swap
Agreements.
(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 Counterparties including the right or power to take any
action to compel or secure performance or observance by the Swap
Counterparties of their obligations to the Issuer under the Interest Rate
Swap Agreements and to give any consent, request, notice, direction,
approval, extension, or waiver under the Interest Rate Swap Agreements 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 ninety (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. 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
each 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 sixty (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
Counterparties, 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 hereof.
(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 ninety (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 and/or the Class B 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 and the Class B 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 the Interest Rate Swap Agreements, each in a form
satisfactory to the Rating Agencies, to hedge the floating rate interest
expense on the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes. The
Issuer may, from time to time, enter into one or more replacement Interest
Rate Swap Agreements with one or more replacement Swap Counterparties in
the event that any 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 Agreements). The
notional amounts of the Interest Rate Swaps will be determined as follows:
(i) The notional amount of the Class A-2 Interest Rate
Swap hedging the interest expense on the Class A-2 Notes will be
initially equal to the principal amount of the Class A-2 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-2 Notes.
(ii) The notional amount of the Class A-3 Interest Rate
Swap hedging the interest expense on the Class A-3 Notes will be
initially equal to the principal amount of the Class A-3 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-3 Notes.
(iii) The notional amount of the Class A-4 Interest Rate
Swap hedging the interest expense on the Class A-4 Notes will be
initially equal to the principal amount of the Class A-4 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-4 Notes.
(b) On each Payment Date, Net Swap Payments (other than
Swap Termination Payments) relating to the Interest Rate Swaps will rank
senior to interest payments on the Class A Notes, and Swap Termination
Payments will rank pari passu with interest payments on the Class A Notes,
all 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
each 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 a Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of
the applicable 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 such Interest
Rate Swap Agreement.
(e) The Administrator shall calculate and provide written
notification to the related Swap Counterparty and to the Indenture Trustee
of the notional amount of each Interest Rate Swap as of each Payment Date
on or before the twelfth day of the month of the related Payment Date. The
Administrator shall also obtain the calculation of LIBOR from the
Calculation Agent under this Agreement 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 related Swap Counterparties 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 an 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 such Interest Rate Swap
Agreement, an amendment or supplement to such Interest Rate Swap Agreement
will be effective only after satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of any 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 such 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 Counterparties of their obligations under the
Interest Rate Swap Agreements, as provided in Section 5.16(e) and 5.16(f).
(g) Each Interest Rate Swap Agreement shall provide that
a termination event will occur thereunder if:
(i) the long-term rating or the short-term rating of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. is suspended, withdrawn or
downgraded below a rating of "A" or "F-1", respectively,
by Fitch and, within 30 days of such suspension,
withdrawal or downgrade the Swap Counterparty fails to
(i) deliver or post collateral reasonably acceptable to
the Issuer and acceptable to Fitch in amounts sufficient
or in accordance with the standards of Fitch (as such
standards may be modified while any transaction is still
outstanding) to secure its obligations under the interest
rate swap agreement, (ii) assign its rights and
obligations under the interest rate swap agreement to a
replacement counterparty reasonably acceptable to the
Issuer and to Fitch or (iii) 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) in each case so that Fitch
confirms the ratings of the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes that were in effect
immediately prior to such suspension, withdrawal or
downgrade; or
(ii) the long-term rating of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
is suspended, withdrawn or downgraded below a rating of
"A2" by ▇▇▇▇▇'▇ and, within 30 days of such suspension,
withdrawal or downgrade the Swap Counterparty fails to
(i) 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, (ii) assign its rights and
obligations under the interest rate swap agreement to a
replacement counterparty reasonably acceptable to the
Issuer and to ▇▇▇▇▇'▇ or (iii) 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 and the Class A-4 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 (5) 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 thirty (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 ten
(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
fifteen (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 sixty (60) days after each
March 31, beginning with March 31, 2002, 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 Section 4.1(b) 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 applicable Swap Counterparties 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 applicable Swap Counterparties to deposit, and
shall otherwise cause to be deposited, all Swap Termination Payments paid
by Swap Counterparties 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 or Swap Counterparties, 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 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 each Interest Rate Swap Agreement have
been paid in full, release any remaining portion of the Trust Estate that
secured the Issuer's obligations under the Notes and the Interest Rate Swap
Agreements 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 each 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 (7) 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 any Swap Counterparty under the related Interest
Rate Swap Agreement, or modify or impair the ability of the Issuer
to fully perform any of its obligations under any 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 ten 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 ten 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 any Swap
Counterparty under the related Interest Rate Swap Agreement or modify the
obligations of, or impair the ability of the Issuer to fully perform any of
its obligations under such Interest Rate Swap Agreement or (y) each 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 ten 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 ten 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 each 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 twenty (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 ten (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 ninety (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 ten percent (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 one percent (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 ninety (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 ten percent (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 one percent (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 2001-2,
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, telecopied 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
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of Fitch, at the following address:
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of the initial Swap Counterparty as of the
Closing Date, at the following address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Fixed Income Derivatives -
Transaction Management Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
1221 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ (Fixed Income Derivatives)
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Derivatives - Corporate Derivatives
Group 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 Counterparties, 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 no Swap Counterparty shall have
any 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.
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 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Financial Services
Officer
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 $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2001-2
[ ]% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-2, a business 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 [ ] 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 June 1, 2001 (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 Class A-1 Note shall be due and
payable on the earlier of the [ ]
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 Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-1 Note at
the rate per annum shown above on each Payment Date until the principal of
this Class A-1 Note is paid or made available for payment, on the principal
amount of this Class A-1 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 Class A-1 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 Class A-1 Note shall be paid
in the manner specified on the reverse side hereof.
The principal of and interest on this Class A-1 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 Class A-1 Note shall
be applied first to interest due and payable on this Class A-1 Note as
provided above and then to the unpaid principal of this Class A-1 Note.
Reference is made to the further provisions of this Class
A-1 Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-1 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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.
Date: _______________, 2001
MMCA AUTO OWNER TRUST 2001-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
------------------------------
Responsible Officer
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
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 Floating Rate Class A-2 Asset-Backed Notes, the
Floating Rate Class A-3 Asset-Backed Notes, the Floating Rate 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 A-1 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided 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 and senior in right
of payment to the Class B Notes, and the Class A-1 Notes are subordinate to
the rights of the Swap Counterparties to receive payments (other than Swap
Termination Payments) pursuant to the Interest Rate Swap Agreements, each
as and 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 fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing [ ] 15, 2001.
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 the outstanding principal amount of the Notes of all Classes
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 Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties
under the related Interest Rate Swap Agreements or modifies the obligations
of, or impairs the ability of, the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes 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 $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2001-2
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-2, a business 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 [ ] 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 June 1, 2001 (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 Class A-2 Note shall be due and
payable on the earlier of the [ ] 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 Article I of the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class A-2 Note at a
per annum rate equal to the London interbank offered rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus [
]% on the principal amount of this Class A-2 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to [ ]% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the
principal of this Class A-2 Note is paid or made available for payment.
Interest on this Class A-2 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 Class A-2 Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Class A-2 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 Class A-2 Note shall
be applied first to interest due and payable on this Class A-2 Note as
provided above and then to the unpaid principal of this Class A-2 Note.
Reference is made to the further provisions of this Class
A-2 Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-2 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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.
Date: _______________, 2001
MMCA AUTO OWNER TRUST 2001-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:__________________________
Responsible Officer
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
This Class A-2 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-2 Asset Backed
Notes, which, together with the [ ]% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-3 Asset-Backed Notes, the Floating Rate 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 A-2 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided 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 and senior in right
of payment to the Class B Notes, and the Class A-2 Notes are subordinate to
the rights of the Swap Counterparties to receive payments (other than Swap
Termination Payments) pursuant to the Interest Rate Swap Agreements, each
as and 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 fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing [ ] 15, 2001.
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 the outstanding principal amount of the Notes of all Classes
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 Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties
under the related Interest Rate Swap Agreements or modifies the obligations
of, or impairs the ability of, the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes 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 $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2001-2
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-2, a business 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 [ ] 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 June 1, 2001 (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 Class A-3 Note shall be due and
payable on the earlier of the [ ] 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 Article I of the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class A-3 Note at a
per annum rate equal to the London interbank offered rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus [
]% on the principal amount of this Class A-3 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to [ ]% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class A-3 Note is paid or made available for payment. Interest on
this Class A-3 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 Class A-3 Note shall be paid in the manner specified on
the reverse side hereof.
The principal of and interest on this Class A-3 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 Class A-3 Note shall
be applied first to interest due and payable on this Class A-3 Note as
provided above and then to the unpaid principal of this Class A-3 Note.
Reference is made to the further provisions of this Class
A-3 Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-3 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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.
Date: June [ ], 2001
MMCA AUTO OWNER TRUST 2001-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: _________________________
Responsible Officer
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
This Class A-3 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-3 Asset Backed
Notes, which, together with the [ ]% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate 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 A-3 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided 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 and senior in right
of payment to the Class B Notes, and the Class A-3 Notes are subordinate to
the rights of the Swap Counterparties to receive payments (other than Swap
Termination Payments) pursuant to the Interest Rate Swap Agreements, each
as and 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 fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing [ ] 15, 2001.
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 the outstanding principal amount of the Notes of all Classes
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 Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties
under the related Interest Rate Swap Agreements or modifies the obligations
of, or impairs the ability of, the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes 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 $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2001-2
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-2, a business 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 [ ] 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 June 1, 2001 (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 Class A-4 Note shall be due and
payable on the earlier of the [ ] 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 Article I of the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class A-4 Note at a
per annum rate equal to the London interbank offered rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus [
]% on the principal amount of this Class A-4 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to [ ]% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class A-4 Note is paid or made available for payment. Interest on
this Class A-4 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 Class A-4 Note shall be paid in the manner specified on
the reverse side hereof.
The principal of and interest on this Class A-4 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 Class A-4 Note shall
be applied first to interest due and payable on this Class A-4 Note as
provided above and then to the unpaid principal of this Class A-4 Note.
Reference is made to the further provisions of this Class
A-4 Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-4 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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.
Date: June [ ], 2001
MMCA AUTO OWNER TRUST 2001-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
---------------------------------
Responsible Officer
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
This Class A-4 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-4 Asset Backed
Notes, which, together with the [ ]% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-3
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 A-4 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided 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 and senior in right
of payment to the Class B Notes, and the Class A-4 Notes are subordinate to
the rights of the Swap Counterparties to receive payments (other than Swap
Termination Payments) pursuant to the Interest Rate Swap Agreements, each
as and 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 fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing on [ ] 15, 2001.
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 the outstanding principal amount of the Notes of all Classes
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 Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties
under the related Interest Rate Swap Agreements or modifies the obligations
of, or impairs the ability of, the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes 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 $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2001-2
[ ]% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-2, a business 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 [ ] 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 June 1, 2001 (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 Class B Note shall be due and
payable on the earlier of the [ ] 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 Article I of the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class B Note at the
rate per annum shown above on each Payment Date until the principal of this
Class B Note is paid or made available for payment, on the principal amount
of this Class B 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 Class B 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 the 14th of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Class B Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Class B 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 Class B Note shall be
applied first to interest due and payable on this Class B Note as provided
above and then to the unpaid principal of this Class B Note.
Reference is made to the further provisions of this Class
B Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class B 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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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.
Date: June [ ], 2001
MMCA AUTO OWNER TRUST 2001-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: __________________________
Responsible Officer
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
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 Floating
Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed
Notes and the Floating Rate Class A-4 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. 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 to amounts payable to the Swap Counterparties pursuant to the
Interest Rate Swap Agreements, as and 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 fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing [ ] 15, 2001.
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. 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 the
outstanding principal amount of the Notes of all Classes 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 the all of the Notes Outstanding, voting
as a group, and with the consent of the Swap Counterparties if such
amendment adversely affects the rights or obligations of the Swap
Counterparties under the related Interest Rate Swap Agreements or modifies
the obligations of, or impairs the ability of, the Issuer to fully perform
any of its obligations under such Interest Rate Swap Agreements. The
Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the 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 (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes 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 OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)]
To the Addressees Indicated
on Schedule A hereto
Re: MMCA Auto Owner Trust 2001-2 - Security Interest Matters
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors
Credit of America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto
Receivables Trust, a Delaware business trust ("MART"), in connection with
the transactions contemplated by (i) the Purchase Agreement, dated as of
June 1, 2001 (the "Purchase Agreement"), between MMCA and MART, (ii) the
Sale and Servicing Agreement, dated as of June 1, 2001 (the "Sale and
Servicing Agreement"), by and among MART, as seller, MMCA, as servicer, and
MMCA Auto Owner Trust 2001-2, a Delaware business trust (the "Trust"), as
issuer, (iii) the Indenture, dated as of June 1, 2001 (the "Indenture"),
between the Trust and Bank of Tokyo-Mitsubishi Trust Company, as indenture
trustee for the benefit of the Holders of the Notes (the "Indenture
Trustee"), and (iv) the Amended and Restated Trust Agreement, dated as of
June 1, 2001 (the "Trust Agreement"), be tween MART and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"). Capitalized terms not
otherwise defined herein have the meanings assigned to such terms in the
Sale and Servicing Agreement.
Pursuant to the Purchase Agreement and the Assignments
(as such term is defined in the Purchase Agreement) related thereto, MMCA
proposes to sell to MART on the Closing Date, and MART 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 (collectively, the "Receivables") secured by new
and used automobiles and sport-utility vehicles (collec tively, 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 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 $146,169,000 principal amount of 3.8975%
Class A-1 Asset Backed Notes (the "Class A-1 Notes"), $94,000,000 principal
amount of Floating Rate Class A-2 Asset Backed Notes (the "Class A-2
Notes"), $229,000,000 principal amount of Floating Rate Class A-3 Asset
Backed Notes (the "Class A-3 Notes"), $150,000,000 principal amount of
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"), and $46,796,330 principal amount of 5.75%
Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"), pursuant to the provisions of an Underwriting
Agreement, dated June 14, 2001 (the "Underwriting Agreement"), between MART
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as representative of the several
underwriters named therein (in such capacity, the "Representative"). The
Trust also will issue $53,998,116.60 aggregate principal amount of Asset
Backed Certificates (the "Certificates") pursuant to the Trust Agreement.
In our examination, we have assumed the genuineness of
all (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 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 and MART and their officers and other representatives and of public
officials.
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 and the First-Tier Assignment
(as such term is defined in the Purchase Agreement);
(B) a Certificate of MART, dated the date hereof, a copy
of which is attached as Exhibit A hereto (the "MART Certificate");
(C) an unfiled but signed copy of (i) a financing
statement naming "MMCA Auto Receivables Trust" as debtor, "MMCA Auto Owner
Trust 2001-2" as secured party and "Bank of Tokyo-Mitsubishi Trust Company
as Indenture Trustee" as assignee and (ii) a financing statement naming
"Chase Manhattan Bank USA, N.A., as Trustee of MMCA Auto Receivables Trust"
as debtor, "MMCA Auto Owner Trust 2001-2" as secured party and "Bank of
Tokyo-Mitsubishi Trust Company, as Indenture Trustee" as assignee, which we
understand will be filed within ten (10) days of the transfer of the
security interest in the office of the Secretary of State of the State of
California (such filing office, the "Filing Office" and such financing
statements, the "Financing Statements");
(D) the certified reports of the Filing Office as to
financing statements naming (i) "MMCA Auto Receivables Trust" as debtor,
(ii) "Chase Manhattan Bank Delaware, as Trustee of MMCA Auto Receivables
Trust" as debtor, and (iii) "Chase Manhattan Bank USA, N.A., as Trustee of
MMCA Auto Receivables Trust" as debtor, and filed in the Filing Office as
of May 15, 2001 (the "Search Reports");
(E) forms of motor vehicle retail installment sale
contracts (the "Form Contracts") attached as Annex A to the MART
Certificate; and
(F) such other agreements, certificates or documents as
we have deemed necessary or appropriate as a basis for the opinion set
forth below.
Unless otherwise indicated, references to the "UCC" shall
mean: (i) with respect to the validity of the security interests held by
the Trust and the Indenture Trustee, the Uniform Commercial Code as in
effect on the date hereof in the State of New York, (ii) with respect to
the perfection and the effect of perfection or non-perfection of the
security interest of the Trust in the Receivables, the Uniform Commer cial
Code as in effect on the date hereof in the State of California, and (iii)
with respect to our opinion in paragraph 1 below, the Uniform Commercial
Code as in effect on the date hereof in the States of New York and
California.
We express no opinion as to the laws of any jurisdiction
other than (i) the laws of the State of New York and (ii) with respect to
the security interest opinions set forth in paragraphs 1, 2 and 3 herein,
the UCC. References to the "Applicable States" shall mean California and/or
New York, as applicable.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and as sumptions set forth herein, we are of the
opinion that:
(a) Each Receivable is a motor vehicle retail installment
sale contract that constitutes "chattel paper" as defined in Section 9-105
of the UCC.
(b) The provisions of the Sale and Servicing Agreement
are effective to create, in favor of the Trust, a valid security interest
(as such term is defined in Section 1-201 of the UCC) in MART's rights in
the Receivables and proceeds thereof, which security interest if
characterized as a transfer for security will secure payment of the Notes.
(c) The Financing Statements are in appropriate form for
filing in the Filing Office under the UCC. Upon the filing of the Financing
Statements in the Filing Office, the security interest in favor of the
Trust in the Receivables and proceeds thereof will be perfected, and no
other security interest of any other creditor of MART's will be equal or
prior to the security interest of the Trust in the Receivables and proceeds
thereof.
(d) The provisions of the Indenture are effective to
create in favor of the Indenture Trust ee, a valid security interest in the
Trust's rights in the Receivables and proceeds thereof to secure payment of
the Notes.
Our opinions in paragraphs 1-4 above are subject to the
following qualifications:
(A) we have assumed that the Receivables exist
and that MART has sufficient rights in the Receivables for the security
interest of the Trust to attach, and that the Trust has sufficient rights
in the Receivables for the security interest of the Indenture Trustee to
attach, and we express no opinion as to the nature or extent of MART's or
the Trust's rights in, or title to, any Receivable;
(B) our security interest opinions are limited
to Article 9 of the UCC, and there fore such opinions do not address (i)
laws of jurisdictions other than Applicable States, and of Applicable
States except for Article 9 of the UCC, (ii) collateral of a type not
subject to Article 9 of the UCC, and (iii) under Section 9-103 of the UCC,
what law governs perfection of the security interests granted in the col
lateral covered by this opinion. We call to your attention that California
has recently enacted SB 45 ("Revised Article 9") which contains a revised
version of Article 9 of the Uniform Commercial Code with conforming and
miscellaneous changes to other articles of the Uniform Commercial Code. By
its terms, SB 45 does not become effective until July 1, 2001. The opinions
expressed in paragraphs 1 and 3 herein are based solely on the Uniform
Commercial Code in effect in the State of California on the date hereof and
we express no opinion as to the effect of Revised Article 9 on the
validity, perfection or priority of the security interest of the Trust or
the Indenture Trustee. We note that a version of Revised Article 9 has also
been introduced into the legislature in New York.
(C) we call to your attention that under the
UCC, events occurring subsequent to the date hereof may affect any security
interest subject to the UCC including, but not limited to, factors of the
type identified in Section 9-306 with respect to proceeds; Section 9-402
with respect to changes in name, structure and corporate identity of the
debtor; Section 9-103 with respect to changes in the location of the
collateral and the location of the debtor; Section 9-316 with respect to
subordination agreements; Section 9-403 with respect to continuation
statements; and Sections 9-307, 9-308 and 9-309 with respect to subsequent
purchasers of the collateral. In addition, actions taken by a secured party
(e.g., releasing or assigning the security interest, delivering possession
of the collateral to the debtor or another person and voluntarily
subordinating a security interest) may affect the validity, perfection or
priority of a security interest;
(D) we have assumed that each Receivable is
substantially in the form of a Form Contract, and we have assumed that no
Receivable is or will be credited to a securities account;
(E) we have assumed that there are no agreements
between MART or the Trust and any account debtor prohibiting, restricting
or conditioning the assignment of any portion of the Receivables;
(F) we express no opinion with respect to the
perfection or priority of the security interest of the Indenture Trustee;
(G) we call to your attention that the security
interest of the Trust and the Inden ture Trustee may be subject to the
rights of account debtors, claims and defenses of account debtors and the
terms of agreements with account debtors;
(H) we express no opinion regarding the security
interest of the Trust or the Inden ture 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 depart ment of the United States of America or any
state thereof);
(I) we express no opinion with respect to the
Trust's or Indenture Trustee's rights in and to any property which secures
any Receivable;
(J) we express no opinion with respect to the
priority of the interest of the Trust in the Receivables against any of the
following: (i) pursuant to Section 9-301(1) of the UCC, a lien creditor or
bulk purchaser who attached or levied prior to the perfection of the
security interest of the Trust; (ii) pursu ant to Section 9-301(4) of the
UCC, a lien creditor to the extent that provision limits the priority
afforded future advances; (iii) pursuant to Section 9-312(7) of the UCC,
another secured creditor to the extent that provision limits the priority
afforded future advances; (iv) pursuant to Sections 9-103(1)(d) or (3)(e)
and Section 9-312(1) of the UCC, a security interest perfected under the
laws of another jurisdiction to the extent MART was located in such
jurisdiction within four months prior to the date of the perfection of the
security interest of the Trust; (v) pursuant to Section 9-312(3) and (4) of
the UCC, a "purchase money security interest" as such term is defined in
Section 9-107 of the UCC; (vi) pursuant to Section 9-312(6) of the UCC,
another secured party with a perfected security interest in other property
of MART to the extent the Receivables are proceeds of such other creditor's
property; (vii) pursuant to Sections 9-104, 9-113, 4-208 and 9-302(1) of
the UCC, another creditor not required to file a financing statement to
perfect its interest; (viii) pursuant to Section 9-401(2) and (3) of the
UCC, the security interest of a creditor who filed a financing statement
based on a prior or incorrect location of MART or the Receivables or use of
the Receivables to the extent such other financing statement would be
effective under Section 9-401(2) or (3) of the UCC; and (ix) the interests
of any person listed on Schedule B hereto (the "Prior Filers"). The
financing statements filed by such Prior Filers (collectively, the "Prior
Financing Statements") identify collateral of a type which may, depending
upon the circumstances, include the Receivables. If the Receiv ▇▇▇▇▇ are
both (x) collateral which now or in the future are covered by such
financing statements and (y) now or in the future are conveyed to any such
Prior Filer, the security interest of the Secured Parties will be junior to
the security interest of such Prior Filer. We note that in the Officer's
Certificate, MART has certified that none of the Prior Financing Statements
currently cover the Receivables and that pursuant to the relevant
agreements it has represented and agreed that it had not at the time of the
conveyance and would not thereafter convey any of the Receivables to any
person other than the Trust; we have not, however, independently
established or verified that the Prior Financing Statements do not cover
the Receivables;
(K) we have assumed that no financing statement
naming "MMCA Auto Receivables Trust" or "Chase Manhattan Bank USA, N.A., as
Trustee of MMCA Auto Receivables Trust" as debtor was filed in the Filing
Office between the effective date of the Search Reports and the date of the
filing of the Financing Statements in the Filing Office;
(L) as used in paragraph 2, the term "security
interest" is used as defined in Section 1-201 of the UCC, which definition
includes both (i) an interest in chattel paper to secure payment and (ii) a
sale of chattel paper. In addition, we express no opinion whether or to
what extent the transfer pursuant to the Sale and Servicing Agreement will
be characterized as a sale or a transfer for security;
(M) we have assumed that (i) the Sale and
Servicing Agreement constitutes the legal, valid and binding obligation of
the Trust, enforceable against the Trust in accordance with its terms and
(ii) the Indenture constitutes the legal, valid and binding obligation of
the Indenture Trustee and the Trust, enforceable against the Indenture
Trustee and the Trust, respectively, in accordance with its terms; and
(N) we call to your attention that in the case
of the issuance of distributions on, or proceeds of, the Receivables, the
security interest of the Trust therein will be perfected only if possession
thereof is obtained or other appropriate action is taken in accordance with
the provisions of the UCC or other applicable law and, in the case of
certain types of distributions or proceeds, other parties such as holders
in due course, protected purchasers and buyers in the ordinary course of
business may obtain superior priority.
We call to your attention that, with respect to
paragraphs (a), (e), (j)(iv) and (k) of our qualifications set forth above,
we have relied upon representations and warranties of MART as to the
assumptions therein.
This opinion is being furnished only to you and is solely
for your benefit in connection with the closing today under the Sale and
Servicing Agreement and is not to be used, circulated, quoted, relied upon
or otherwise referred to for any purpose without prior written consent in
each instance.
Very truly yours,
Schedule A (to opinion)
Mitsubishi Motors Credit of America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, N.A.,
as Trustee
MMCA Auto Receivables Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
MMCA Auto Owner Trust 2001-2
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.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Schedule B (to Opinion)
SCHEDULE OF PRIOR FILERS
Exhibit A (to Opinion)
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
Dated: June 14, 2001
The undersigned, a duly authorized officer of MMCA AUTO
RECEIVABLES TRUST ("MART"), does hereby certify as follows:
(1) No financing statements or other filings have been
filed naming MART as debtor or seller in any State of the United States of
America to perfect a sale, transfer or assignment of or lien, encumbrance,
security interest or other interest in, or which otherwise pertains to, the
Receivables.
(2) At all times since the establishment of MART, MART
has had one place of business and it is and has been located in Cypress,
California.
(3) At all times since the establishment of MART and on
the date hereof, MART has had a mailing address of ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(4) Attached hereto as Annex A are forms of motor vehicle
retail installment sales contracts used to create the Receivables (the
"Form Contracts"), and each Receivable is substantially in the form of a
Form Contract.
Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Sale and Servicing
Agreement, dated as of June 1, 2001, by and among MART, Mitsubishi Motors
Credit of America, Inc., as Servicer, and MMCA Auto Owner Trust 2001-2, as
Trust, and accepted and agreed to by Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand to this
Certificate as of the day hereinabove set forth.
MMCA AUTO RECEIVABLES TRUST
By:
------------------------------
Name:
Title:
Annex A (to Opinion)
FORMS OF RETAIL INSTALLMENT SALES CONTRACT
Annex B (to Opinion)
CERTIFIED REPORT OF FILING OFFICE ON PRIOR FINANCING STATEMENTS
Annex A
[FORM OF RETAIL INSTALLMENT SALE CONTRACT]