Exhibit 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2001-4,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of December 1, 2001
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$49,900,000 2.010% Class A-1 Asset Backed Notes
$138,000,000 2.89% Class A-2 Asset Backed Notes
$145,000,000 3.97% Class A-3 Asset Backed Notes
$197,200,000 4.92% Class A-4 Asset Backed Notes
$40,066,000 4.84% Class B Asset Backed Notes
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CROSS REFERENCE TABLE1
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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
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1 Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE............................................................2
Section 1.1 Definitions.........................................................................2
Section 1.2 Incorporated by Reference of Trust Indenture Act....................................2
Section 1.3 Rules of Construction....................................Error! Bookmark not defined.
ARTICLE II - THE NOTES............................................................................................2
Section 2.1 Form................................................................................2
Section 2.2 Execution, Authentication and Delivery..............................................3
Section 2.3 Temporary Notes.....................................................................3
Section 2.4 Tax Treatment.......................................................................3
Section 2.5 Registration; Registration of Transfer and Exchange.................................4
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes..........................................5
Section 2.7 Persons Deemed Owner................................................................6
Section 2.8 Payments............................................................................6
Section 2.9 Cancellation........................................................................8
Section 2.10 Release of Collateral...............................................................9
Section 2.11 Book-Entry Notes....................................................................9
Section 2.12 Notices to Clearing Agency.........................................................10
Section 2.13 Definitive Notes...................................................................10
Section 2.14 Authenticating Agents..............................................................10
ARTICLE III - COVENANTS..........................................................................................11
Section 3.1 Payment Covenant...................................................................11
Section 3.2 Maintenance of Office or Agency....................................................11
Section 3.3 Money for Payments To Be Held in Trust.............................................11
Section 3.4 Existence..........................................................................12
Section 3.5 Protection of Trust Estate.........................................................13
Section 3.6 Opinions as to Trust Estate........................................................13
Section 3.7 Performance of Obligations; Servicing of Receivables...............................13
Section 3.8 Negative Covenants.................................................................15
Section 3.9 Annual Statement as to Compliance..................................................15
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust Assets.........16
Section 3.11 No Other Business..................................................................16
Section 3.12 No Borrowing.......................................................................16
Section 3.13 Servicer's Obligations.............................................................16
Section 3.14 Guarantees, Loans, Advances and Other Liabilities..................................16
Section 3.15 Capital Expenditures...............................................................16
Section 3.16 Further Instruments and Acts.......................................................16
Section 3.17 Restricted Payments................................................................16
Section 3.18 Notice of Events of Default........................................................17
Section 3.19 Removal of Administrator...........................................................17
ARTICLE IV - SATISFACTION AND DISCHARGE..........................................................................17
Section 4.1 Satisfaction and Discharge of Indenture............................................17
Section 4.2 Satisfaction and Discharge of the Notes............................................18
Section 4.3 Application of Trust Money.........................................................19
Section 4.4 Repayment of Monies Held by Paying Agent...........................................19
ARTICLE V - REMEDIES.............................................................................................19
Section 5.1 Events of Default..................................................................19
Section 5.2 Acceleration of Maturity; Rescission and Annulment.................................20
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..........21
Section 5.4 Remedies; Priorities...............................................................23
Section 5.5 Optional Preservation of the Receivables...........................................24
Section 5.6 Limitation of Suits................................................................24
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..............25
Section 5.8 Restoration of Rights and Remedies.................................................25
Section 5.9 Rights and Remedies Cumulative.....................................................25
Section 5.10 Delay or Omission Not a Waiver.....................................................25
Section 5.11 Control by Noteholders.............................................................25
Section 5.12 Waiver of Past Default.............................................................26
Section 5.13 Undertaking for Costs..............................................................26
Section 5.14 Waiver of Stay or Extension Laws...................................................26
Section 5.15 Action on Notes....................................................................27
Section 5.16 Performance and Enforcement of Certain Obligations.................................27
ARTICLE VI - THE INDENTURE TRUSTEE...............................................................................28
Section 6.1 Duties of Indenture Trustee........................................................28
Section 6.2 Rights of Indenture Trustee........................................................29
Section 6.3 Individual Rights of Indenture Trustee.............................................29
Section 6.4 Indenture Trustee's Disclaimer.....................................................30
Section 6.5 Notice of Defaults.................................................................30
Section 6.6 Reports by Indenture Trustee to Holders............................................30
Section 6.7 Compensation and Indemnity.........................................................30
Section 6.8 Replacement of Indenture Trustee...................................................31
Section 6.9 Successor Indenture Trustee by Merger..............................................31
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................32
Section 6.11 Eligibility; Disqualification......................................................33
Section 6.12 Preferential Collection of Claims Against Issuer...................................33
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses..............................33
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING......................................................................33
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.............33
Section 7.2 Preservation of Information; Communications to Noteholders.........................34
Section 7.3 Reporting by Issuer................................................................34
Section 7.4 Reporting and Notices by Indenture Trustee.........................................34
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..............................................................35
Section 8.1 Collection of Money................................................................35
Section 8.2 Trust Accounts.....................................................................35
Section 8.3 General Provisions Regarding Accounts..............................................35
Section 8.4 Release of Trust Estate............................................................36
Section 8.5 Opinion of Counsel.................................................................36
ARTICLE IX - SUPPLEMENTAL INDENTURES.............................................................................37
Section 9.1 Supplemental Indentures Without Consent of Noteholders.............................37
Section 9.2 Supplemental Indentures with Consent of Noteholders................................38
Section 9.3 Execution of Supplemental Indentures...............................................39
Section 9.4 Effect of Supplemental Indenture...................................................40
Section 9.5 Conformity with Trust Indenture Act................................................40
Section 9.6 Reference in Notes to Supplemental Indentures......................................40
ARTICLE X - REDEMPTION OF NOTES..................................................................................40
Section 10.1 Redemption.........................................................................40
Section 10.2 Form of Redemption Notice..........................................................40
Section 10.3 Notes Payable on Redemption Date...................................................41
ARTICLE XI - MISCELLANEOUS.......................................................................................41
Section 11.1 Compliance Certificates and Opinions, etc..........................................41
Section 11.2 Form of Documents Delivered to Indenture Trustee...................................42
Section 11.3 Acts of Noteholders................................................................43
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies....................43
Section 11.5 Notices to Noteholders; Waiver.....................................................45
Section 11.6 Alternate Payment and Notice Provisions............................................45
Section 11.7 Conflict with Trust Indenture Act..................................................45
Section 11.8 Effect of Headings and Table of Contents...........................................46
Section 11.9 Successors and Assigns.............................................................46
Section 11.10 Separability.......................................................................46
Section 11.11 Benefits of Indenture..............................................................46
Section 11.12 Legal Holiday......................................................................46
Section 11.13 Governing Law......................................................................46
Section 11.14 Counterparts.......................................................................46
Section 11.15 Recording of Indenture.............................................................46
Section 11.16 Trust Obligation...................................................................46
Section 11.17 No Petition; Subordination; Claims Against Seller..................................47
Section 11.18 Inspection.........................................................................47
Section 11.19 Employee Benefit Plans.............................................................47
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
APPENDICES
APPENDIX A Definitions and Usage.............................................................Appendix A
INDENTURE, dated as of December 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Indenture"), between MMCA AUTO OWNER TRUST 2001-4, 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 not in its
individual capacity (in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Issuer's
2.010% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 2.89% Class A-2
Asset Backed Notes (the "Class A-2 Notes"), 3.97% Class A-3 Asset Backed Notes
(the "Class A-3 Notes"), 4.92% 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 4.84% Class B Asset Backed Notes
(the "Class B Notes" and, together with the Class A Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all of the Issuer's right, title and interest in, to and under, whether
now owned or existing or hereafter acquired or arising (a) the Receivables;
(b) with respect to 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; and (m) 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 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.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes, 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 may be adequately and
effectively protected.
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Except as otherwise specified
herein or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
Section 1.2 Incorporated by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean
the Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
in the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
ARTICLE II - THE NOTES
Section 2.1 Form. (a) The Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes 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 $49,900,000, Class A-2 Notes for original issue in an
aggregate principal amount of $138,000,000, Class A-3 Notes for original issue
in an aggregate principal amount of $145,000,000, Class A-4 Notes for original
issue in an aggregate principal amount of $197,200,000, and Class B Notes for
original issue in an aggregate principal amount of $40,066,000. 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 15 days preceding the due date for
any payment with respect to such Note.
(i) Each Person to whom a Note is transferred will be
required to represent, in the case of a Definitive Note, or deemed to
represent, in the case of a Book-Entry Note, that (x) such Person is not an
employee benefit plan, as described in section 3(3) of ERISA, or a plan, as
defined in section 4975(E)(1) of the Code, that is subject to Title I of ERISA
or to section 4975 of the Code, a government plan subject to any state or
local law similar to Title I of ERISA or section 4975 of the Code, or a Person
investing on behalf of or with "plan assets" of such a plan, or (y) the
Person's acquisition, holding and disposition of the Note are and will be
eligible for relief under a prohibited transaction exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be
required by it to hold the Issuer and the Indenture Trustee harmless, then, in
the absence of notice to the Issuer, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a protected purchaser, and
provided that the requirements of Section 8-405 of the Relevant UCC are met,
the Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Class;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven days of the Indenture
Trustee's receipt of evidence to its satisfaction of such destruction, loss or
theft shall be due and payable, or shall have been called for redemption,
instead of issuing a replacement Note of the same Class, the Issuer may pay
such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. The Indenture Trustee may rely upon
the Administrator with respect to the determination of whether the
requirements of Section 8-405 of the Relevant UCC are met. If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a protected purchaser
of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Note
from such Person to whom such replacement Note was delivered or any assignee
of such Person, except a protected purchaser, and shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under this
Section 2.6, the Issuer may require the payment by the Holder of such Note of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section
2.6 in replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(d) The provisions of this Section 2.6 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee
and any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of and
interest, if any, on such Note and for all other purposes whatsoever, whether
or not such Note be overdue, and none of the Issuer, the Indenture Trustee or
any agent of the Issuer or the Indenture Trustee shall be affected by notice
to the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written
instructions from the Servicer pursuant to Section 4.6(c) of the Sale and
Servicing Agreement, the Indenture Trustee shall withdraw the Total Available
Funds on deposit in the Collection Account for the related Collection Period
and make the following payments and deposits for such Payment Date in the
following order of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Note Payment Account, the Accrued Note
Interest for the Class A Notes;
(iii) to the Note Payment Account, the Accrued Note
Interest for the Class B Notes;
(iv) to the Note Payment Account, the Principal
Distribution Amount;
(v) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve Account up
to the Specified Reserve Balance; and
(vi) 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 shall be calculated on the
basis of the actual days elapsed and a 360-day year. Interest on the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and 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 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;
(iv) fourth, 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;
(v) fifth, 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;
(vi) sixth, to the Class B Noteholders, Accrued
Note Interest;
(vii) seventh, 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
(viii) eighth, 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,
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 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 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 authorize any financing statement, continuation statement
or other instrument required to be authorized 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 authorization and filing of any financing
statements and continuation statements as is necessary to maintain the lien
and security interest created by this Indenture and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents and the authorization and filing of any financing statements and
continuation statements that shall, in the opinion of such counsel, be
required to maintain the lien and security interest of this Indenture until
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 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 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 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 or the Purchase Agreement with respect to
any of the provisions thereof.
Section 3.19 Removal of Administrator. For so long as any
Notes are Outstanding, the Issuer shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection therewith.
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 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;
(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, but such monies need not be segregated from other funds except to
the extent required herein or in the Sale and Servicing Agreement or required
by law.
Section 4.4 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all monies then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
ARTICLE V - REMEDIES
Section 5.1 Events of Default. "Event of Default," wherever
used herein, means the occurrence of any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any
Note when the same becomes due and payable, and such default
shall continue for a period of five days or more; or
(ii) default in the payment of the principal of or
any installment of the principal of any Note when the same
becomes due and payable, including with respect to each
Class of Notes, the Stated Maturity Date for such Class; or
(iii) default in the observance or performance of
any material covenant or agreement of the Issuer made in
this Indenture (other than a covenant or agreement, a
default in the observance or performance of which is
elsewhere in this Section 5.1 specifically dealt with), or
any representation or warranty of the Issuer made in this
Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have
been incorrect in any material respect as of the time when
the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition
in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured,
for a period of 60 days or in the case of a materially
incorrect representation and warranty 30 days, after there
shall have been given, by registered or certified mail, to
the Issuer by the Indenture Trustee or to the Issuer and the
Indenture Trustee by the Holders of not less than 25% of the
principal amount of the Notes Outstanding, a written notice
specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by
a court having jurisdiction in the premises in respect of
the Issuer or any substantial part of the Trust Estate in an
involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or
ordering the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect,
or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the
consent by the Issuer to the appointment or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or
for any substantial part of the Trust Estate, or the making
by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action
by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Default which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), its status and what action the Issuer
is taking or proposes to take with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default should occur and be continuing, then and
in every such case the Indenture Trustee or the Holders of Notes representing
not less than a majority of the principal amount of the Notes Outstanding,
voting as a group, may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and payable. If
an Event of Default specified in Section 5.1(iv) or (v) occurs, all unpaid
principal, together with all accrued and unpaid interest thereon, of all the
Notes, and all other amounts payable hereunder, shall automatically become due
and payable without any declaration or other act on the part of the Indenture
Trustee or any Holder of the Notes.
(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 if the Event of Default giving rise to such acceleration had
not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel and
other amounts due and owing to the Indenture Trustee pursuant to
Section 6.7; and
(ii) all Events of Default, other than the
nonpayment of the principal of the Notes that has become due
solely by such acceleration, have been cured or waived as
provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Issuer covenants that if (i) there
is a default in the payment of any interest on any Note when the same becomes
due and payable, and such default continues for a period of five days, or (ii)
there is a default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable, the Issuer
shall, upon demand of the Indenture Trustee, pay to the Indenture Trustee, for
the benefit of the Holders of the Notes, the whole amount then due and payable
on the Notes for principal and interest, with interest upon the overdue
principal at the applicable Note Interest Rate and, to the extent payment at
such rate of interest shall be legally enforceable, upon overdue installments
of interest at the applicable Note Interest Rate and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel and other amounts
due and owing to the Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor
upon the Notes and collect in the manner provided by law out of the property
of the Issuer or other obligor upon the Notes, wherever situated, the monies
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders 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
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes 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 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 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Noteholder
to authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder 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.
(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
(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 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, 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, the Indenture Trustee
may sell or liquidate the Trust Estate at one or more public
or private sales called and conducted in any manner
permitted by law if the Indenture Trustee obtains the
consent of Holders of 66 2/3% of the principal amount of the
Notes Outstanding, voting as a group.
(c) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
order of priority set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section 5.4. At least 15
days before such record date, the Issuer shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and
the amount to be paid.
Section 5.5 Optional Preservation of the Receivables.
Subject to Section 5.4(b), if the Notes have been declared to be due and
payable under Section 5.2 following an Event of Default, and such declaration
and its consequences have not been rescinded and annulled, the Indenture
Trustee may, but need not, elect to maintain possession of the Trust Estate
and apply proceeds as if there had been no declaration of acceleration;
provided, however, that Total Available Funds shall be applied in accordance
with such declaration of acceleration in the manner specified in Section
4.6(c) of the Sale and Servicing Agreement. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for the
payment of principal of and interest on the Notes, and the Indenture Trustee
shall take such desire into account when determining whether or not to
maintain possession of the Trust Estate. In determining whether to maintain
possession of the Trust Estate, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
Section 5.6 Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount
of the Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders
of a majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the principal amount of the
Notes Outstanding, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on, if any,
such Note on or after the respective due dates thereof expressed in such Note
or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or any acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Holders of a
majority of the principal amount of the Notes Outstanding shall have the right
to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided
that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust Estate shall
be by Holders of Notes representing not less than 100% of the principal amount
of the Notes Outstanding;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the principal amount of the Notes
Outstanding to sell or liquidate the Trust Estate shall be of no force and
effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.1, the Indenture Trustee need not take any action that it
reasonably believes might involve it in costs, expenses and liabilities for
which it will not be adequately indemnified or might materially adversely
affect the rights of any Noteholders not consenting to such action.
Section 5.12 Waiver of Past Default. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.2, the Holders of Notes representing not less than a majority of the
principal amount of the Notes Outstanding, voting as a group, may waive any
past Default or Event of Default and its consequences except a Default or
Event of Default (a) in the payment of principal of or interest on any of the
Notes or (b) in respect of a covenant or provision hereof that cannot be
amended, supplemented or modified without the consent of the Holder of each
Note. In the case of any such waiver, the Issuer, the Indenture Trustee and
the Holders of the Notes shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Upon any such waiver, such Default or Event of Default shall
cease to exist and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been cured and
not to have occurred, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorney's fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.13 shall not apply to (a)
any suit instituted by the Indenture Trustee, (b) any suit instituted by any
Noteholder or group of Noteholders, in each case holding in the aggregate more
than 10% of the principal amount of the Notes Outstanding or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal
of or interest on any Note on or after the respective due dates expressed in
such Note and in this Indenture (or, in the case of redemption, on or after
the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture, and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance
with Section 5.4(c).
Section 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to do
so, and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Servicer, as applicable, of
each of their obligations to the Issuer under or in connection with the Sale
and Servicing Agreement or by the Seller of each of its obligations under or
in connection with the Purchase Agreement, and to exercise any and all rights,
remedies, powers and privileges lawfully available to the Issuer under or in
connection with the Sale and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of
notices of default on the part of the Seller or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their obligations
under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Servicer under or in connection with
the Sale and Servicing Agreement, or against the Seller under or in connection
with the Purchase Agreement, including the right or power to take any action
to compel or secure performance or observance by the Seller or the Servicer,
as the case may be, of each of their obligations to the Issuer thereunder and
to give any consent, request, notice, direction, approval, extension, or
waiver under the Sale and Servicing Agreement or the Purchase Agreement, as
the case may be, and any right of the Issuer to take such action shall be
suspended.
(c) Promptly following a request from the Indenture Trustee
to do so, and at the Administrator's expense, the Issuer agrees to take all
such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by MMCA of each of its obligations to the
Seller under or in connection with the Purchase Agreement in accordance with
the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Purchase Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by MMCA of each of its obligations
under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall exercise all rights, remedies, powers, privileges and claims of
the Seller against MMCA under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure
performance or observance by MMCA of each of its obligations to the Seller
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Purchase Agreement, and any rights of the Seller
to take such action shall be suspended.
ARTICLE VI - THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and, if required by the terms of this
Indenture, conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, negligent failure to act, willful misconduct or
bad faith, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable
with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant
to Section 5.11.
(d) Every provision of this Indenture that in any way
relates to the Indenture Trustee is subject to paragraphs (a), (b), (c), (e)
and (g) of this Section 6.1.
(e) The Indenture Trustee shall not be liable for interest
on any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section 6.1 and to the
provisions of the TIA.
(i) The Indenture Trustee shall not be charged with
knowledge of any Event of Default unless either (1) a Responsible Officer
shall have actual knowledge of such Event of Default or (2) written notice of
such Event of Default shall have been given to the Indenture Trustee in
accordance with the provisions of this Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Indenture Trustee need not
investigate any fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on an Officer's Certificate or Opinion of Counsel
unless it is proved that the Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission
by the Indenture Trustee does not constitute willful misconduct, negligence or
bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Indenture Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney.
Section 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent
hereunder may do the same with like rights.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee (i) shall not be responsible for, and makes no representation, as to
the validity or adequacy of this Indenture or the Notes and (ii) shall not be
accountable for the Issuer's use of the proceeds from the Notes, or
responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of such
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant
to the mandatory redemption provisions of such Note), the Indenture Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
Section 6.6 Reports by Indenture Trustee to Holders. Within
a reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by
the Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement
containing the information which is required to be expressed in the Payment
Date statements as a dollar amount per $1,000 of original denomination of the
Notes or Class of Notes, as applicable, aggregated for such calendar year, for
the purposes of such Noteholder's preparation of Federal income tax returns.
Section 6.7 Compensation and Indemnity. (a) The Issuer
shall, or shall cause the Administrator to, pay to the Indenture Trustee from
time to time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall, or shall cause the Administrator to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall, or shall
cause the Administrator to, indemnify the Indenture Trustee against any and
all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee to so notify the Issuer and the Administrator shall
not relieve the Issuer or the Administrator of its obligations hereunder. The
Issuer shall, or shall cause the Servicer to, defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall, or shall
cause the Servicer to, pay the fees and expenses of such counsel. Neither the
Issuer nor the Administrator need reimburse any expense or indemnity against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture
Trustee pursuant to this Section 6.7 shall survive the resignation or removal
of the Indenture Trustee and the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified
in Section 5.1(iv) or (v) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
Section 6.8 Replacement of Indenture Trustee. (a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.8.
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. Thereupon, the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
(c) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, the Issuer or the Holders of a majority in
principal amount of the Notes Outstanding may petition any court of competent
jurisdiction to appoint a successor Indenture Trustee. If the Indenture
Trustee fails to comply with Section 6.11, any Noteholder may petition any
court of competent jurisdiction to remove the Indenture Trustee and to appoint
a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's and the Administrator's obligations
under Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee.
Section 6.9 Successor Indenture Trustee by Merger. (a) If
the Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies with prior written notice
of any such transaction.
(b) If at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated, and if at that time any of the Notes
shall not have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee. In all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Indenture Trustee shall
have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate may at the time be located,
the Indenture Trustee shall have the power and may execute and deliver an
instrument to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Trust Estate, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders, 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 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.
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING
Section 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the
names and addresses of the Holders of Notes as of such Record Date and (b) at
such other times as the Indenture Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, a list of similar form
and content as of a date not more than ten days prior to the time such list is
furnished; provided, however, that so long as (i) the Indenture Trustee is the
Note Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list
shall be required to be furnished.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section
312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with the rules and regulations
prescribed from time to time by the Commission such
additional information, documents and reports with respect
to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) and by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year
of the Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a)
If required by TIA Section 313(a), within 60 days after each March 31,
beginning with March 31, 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.
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, release any remaining portion of the Trust
Estate that secured the Notes 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 an Officer's Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent, if any, provided
for in this Indenture relating to the release of the property from the lien of
this Indenture have been complied with, provided that counsel rendering any
such opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) if required by the TIA,
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
Section 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, except in connection
with any action contemplated by Section 8.4(b), as a condition to such action,
an Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee,
when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture,
or better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with
the applicable provisions hereof, of another Person to the
Issuer, and the assumption by any such successor of the
covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for
the benefit of the Holders of the Notes, or to surrender any
right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture that
may be inconsistent with any other provision herein or in
any supplemental indenture or to make any other provisions
with respect to matters or questions arising under this
Indenture which will not be inconsistent with other
provisions of the Indenture; provided, that such action
shall not materially adversely affect the interests of the
Noteholders;
(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, (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 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 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; and provided,
further, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change any Stated Maturity Date or the date of
payment of any installment of principal of or interest on
any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the
sale of, the Trust Estate to payment of principal of or
interest on the Notes, or change any place of payment where,
or the coin or currency in which, any Note or the interest
thereon is payable, or impair the right to institute suit
for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due
on the Notes on or after the respective due dates thereof
(or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the principal amount
of the Notes Outstanding, the consent of the Holders of
which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(iv) reduce the percentage of the principal amount
of the Notes Outstanding required to direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount and accrued but
unpaid interest on the Notes and the Certificates;
(v) modify any provision of this Indenture
specifying a percentage of the aggregate principal amount of
the Notes necessary to amend this Indenture or the other
Basic Documents except to increase any percentage specified
herein or to provide that certain additional provisions of
this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding
Note affected thereby;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of
any payment of interest or principal due on any Note on any
Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any
provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with
respect to any part of the Trust Estate or, except as
otherwise permitted or contemplated herein, terminate the
lien of this Indenture on any such collateral at any time
subject hereto or deprive the Holder of any Note of the
security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith or on the basis of
an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive and, subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture
Act as then in effect so long as this Indenture shall then be qualified under
the Trust Indenture Act.
Section 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X - REDEMPTION OF NOTES
Section 10.1 Redemption. The Notes are subject to redemption
in whole, but not in part, at the direction of the Servicer pursuant to
Section 9.1(a) of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the assets of the Issuer
pursuant to said Section 9.1(a), and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay the unpaid principal
amount of the Notes plus accrued and unpaid interest thereon and the
Certificate Balance. The Servicer or the Issuer shall furnish the Rating
Agencies and the Noteholders notice of such redemption. If the Notes are to be
redeemed pursuant to this Section 10.1, the Servicer or the Issuer shall
furnish notice of such election to the Indenture Trustee not later than 20
days prior to the Redemption Date and the Issuer shall deposit by 10:00 A.M.
(New York City time) on the Redemption Date with the Indenture Trustee in the
Note Payment Account the Redemption Price of the Notes to be redeemed,
whereupon all such Notes shall be due and payable on the Redemption Date.
Section 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by the Indenture Trustee by first-class
mail, postage prepaid, or by facsimile mailed or transmitted promptly
following receipt of notice from the Issuer or Servicer pursuant to Section
10.1, but not later than ten days prior to the applicable Redemption Date, to
each Holder of Notes as of the close of business on the Record Date preceding
the applicable Redemption Date, at such Holder's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which shall
be the office or agency of the Issuer to be maintained as
provided in Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to
give any required notice of redemption, or any defect therein, to any Holder
of any Note shall not impair or affect the validity of the redemption of any
other Note.
Section 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section 10.2
(in the case of redemption pursuant to Section 10.1), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued interest
is calculated for purposes of calculating the Redemption Price.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(D) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the
property or securities to be so deposited and of all other
such property or securities made the basis of any such
withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this
clause (ii), is 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 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 2001-4,
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 or the Owner Trustee shall be in writing,
personally delivered, sent by facsimile or mailed by certified mail, return
receipt requested, to
in the case of Moody's, at the following address:
▇▇▇▇▇'▇ Investors Service, Inc.
ABS Monitoring Department
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of S&P, at the following address:
Standard & Poor's
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of Fitch, at the following address:
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
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
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.
Section 11.12 Legal Holiday. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes or this Indenture) payment need not be made
on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date on which nominally due, and no
interest shall accrued for the period from and after any such nominal date.
Section 11.13 Governing Law. This Indenture shall be
construed in accordance with the laws of the State of New York without
reference to its conflict of laws provisions (other than section 5-1401 OF the
general obligations law) and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 11.14 Counterparts. This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 11.15 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that
such recording is necessary either for the protection of the Noteholders or
any other Person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacities), and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture,
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 11.17 No Petition; Subordination; Claims Against
Seller. The Indenture Trustee, by entering into this Indenture, and each
Noteholder or Note Owner, by accepting a Note or beneficial interest in a
Note, as the case may be, hereby covenant and agree that (a) they will not at
any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or
any of the Basic Documents, (b) any claim that they may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim they have at any time against the Seller that they may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other similar proceedings, of
the claims of the holders of any Securities related to such unrelated Subtrust
and the holders of any other notes, bonds, contracts or other obligations that
are related to such unrelated Subtrust and (c) they hereby irrevocably make
the election afforded by Title ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 1111(b)(1)(A)(i)
to secured creditors to receive the treatment afforded by Title ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code Section 1111(b)(2) with respect to any secured claim that they may
have at any time against the Seller. The obligations of the Seller under this
Indenture are limited to the related Subtrust and the related Subtrust Assets.
Section 11.18 Inspection. The Issuer agrees that, with
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books
of account, records, reports and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees, and Independent certified
public accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
Section 11.19 Employee Benefit Plans. Each Plan that
acquires a Note, by its acceptance of the Note, shall be deemed to represent
that its acquisition, holding and disposition of the Note does not give rise
to a prohibited transaction for which no exemption is available.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2001-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Trust Officer
Schedule A
SCHEDULE A
Schedule of Receivables provided to Indenture Trustee
on Computer Tape, Compact Disk or Microfiche
Schedule I
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 ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[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 $49,900,000
No. R-1 CUSIP NO. 553083 BY 1
MMCA AUTO OWNER TRUST 2001-4
2.010% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-4, 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 FORTY NINE MILLION NINE HUNDRED
THOUSAND DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class A-1
Notes pursuant to Section 2.8 of the Indenture, dated as of December 1, 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 December 2002 Payment Date (the
"Class A-1 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this 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.
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: December 13, 2001
MMCA AUTO OWNER TRUST 2001-4,
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 2.010% Class A-1 Asset Backed Notes,
which, together with the 2.89% Class A-2 Asset-Backed Notes, the 3.97% Class
A-3 Asset-Backed Notes, the 4.92% Class A-4 Asset-Backed Notes and the 4.84%
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. Except as otherwise set forth in the Indenture, the Class A-1 Notes
are equal in right of payment to the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes and senior in right of payment to the Class B Notes.
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 January 15, 2002.
As described above, the entire unpaid principal amount of
this Class A-1 Note shall be due and payable on the earlier of the Class A-1
Stated Maturity Date and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Holders of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-1 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-1 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-1 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-1
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-1 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-1
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-1
Note and of any Class A-1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-1 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-1 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-1 Note may be
registered on the Note Register upon surrender of this Class A-1 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, and thereupon one or more new
Class A-1 Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be charged for any registration of transfer or exchange
of this Class A-1 Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee
on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder or
Note Owner will not at any time institute against the Seller, or the Issuer,
or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or the
Basic Documents and (b) any claim that such Noteholder or Note Owner may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim that such Noteholder may have against the Seller that
such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Seller becomes a
debtor or debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in
a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR,
IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-1
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-1 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this Class
A-1 Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-1 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-1 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-1
Note and of any Class A-1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-1 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The 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 ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[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 $138,000,000
No. R-1 CUSIP NO. 553083 BZ 8
MMCA AUTO OWNER TRUST 2001-4
2.89% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-4, 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 ONE HUNDRED THIRTY EIGHT MILLION
DOLLARS payable on each Payment Date in the aggregate amount, if any, payable
from the Note Payment Account in respect of principal on the Class A-2 Notes
pursuant to Section 2.8 of the Indenture, dated as of December 1, 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 November 2004 Payment Date (the
"Class A-2 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class A-2 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-2 Note is paid or made available for payment, on the principal amount
of this Class A-2 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-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 a
360-day year of twelve 30-day months. 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.
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: December 13, 2001
MMCA AUTO OWNER TRUST 2001-4,
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 2.89% Class A-2 Asset Backed Notes,
which, together with the 2.010% Class A-1 Asset-Backed Notes, the 3.97% Class
A-3 Asset-Backed Notes, the 4.92% Class A-4 Asset-Backed Notes and the 4.84%
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. Except as otherwise set forth in the Indenture, the Class A-2 Notes
are equal in right of payment to the Class A-1 Notes, the Class A-3 Notes and
the Class A-4 Notes and senior in right of payment to the Class B Notes.
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 January 15, 2002.
As described above, the entire unpaid principal amount of
this Class A-2 Note shall be due and payable on the earlier of the Class A-2
Stated Maturity Date and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Holders of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-2 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-2 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-2 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-2
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-2 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-2
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-2
Note and of any Class A-2 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-2 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-2 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-2 Note may be
registered on the Note Register upon surrender of this Class A-2 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, and thereupon one or more new
Class A-2 Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be charged for any registration of transfer or exchange
of this Class A-2 Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee
on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder or
Note Owner will not at any time institute against the Seller, or the Issuer,
or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or the
Basic Documents and (b) any claim that such Noteholder or Note Owner may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim that such Noteholder may have against the Seller that
such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Seller becomes a
debtor or debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in
a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR,
IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-2
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-2 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this Class
A-2 Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-2 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-2 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-2
Note and of any Class A-2 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-2 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The 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 ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[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 $145,000,000
No. R-1 CUSIP NO. 553083 CA 2
MMCA AUTO OWNER TRUST 2001-4
3.97% CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-4, 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 ONE HUNDRED FORTY FIVE MILLION
DOLLARS payable on each Payment Date in the aggregate amount, if any, payable
from the Note Payment Account in respect of principal on the Class A-3 Notes
pursuant to Section 2.8 of the Indenture, dated as of December 1, 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 March 2006 Payment Date (the "Class
A-3 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer shall pay interest on this Class A-3 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-3 Note is paid or made available for payment, on the principal amount
of this Class A-3 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-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 a
360-day year of twelve 30-day months. 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.
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: December 13, 2001
MMCA AUTO OWNER TRUST 2001-4,
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 3.97% Class A-3 Asset Backed Notes,
which, together with the 2.010% Class A-1 Asset-Backed Notes, the 2.89% Class
A-2 Asset-Backed Notes, the 4.92% Class A-4 Asset-Backed Notes and the 4.84%
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. Except as otherwise set forth in the Indenture, the Class A-3 Notes
are equal in right of payment to the Class A-1 Notes, the Class A-2 Notes and
the Class A-4 Notes and senior in right of payment to the Class B Notes.
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 January 15, 2002.
As described above, the entire unpaid principal amount of
this Class A-3 Note shall be due and payable on the earlier of the Class A-3
Stated Maturity Date and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Holders of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-3 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-3 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-3 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-3
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-3 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-3
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-3
Note and of any Class A-3 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-3 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-3 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-3 Note may be
registered on the Note Register upon surrender of this Class A-3 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, and thereupon one or more new
Class A-3 Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be charged for any registration of transfer or exchange
of this Class A-3 Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee
on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder or
Note Owner will not at any time institute against the Seller, or the Issuer,
or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or the
Basic Documents and (b) any claim that such Noteholder or Note Owner may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim that such Noteholder may have against the Seller that
such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Seller becomes a
debtor or debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in
a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR,
IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-3
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-3 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this Class
A-3 Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-3 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-3 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-3
Note and of any Class A-3 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-3 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The 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 ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[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 $197,200,000
No. R-1 CUSIP NO. 553083 CB 0
MMCA AUTO OWNER TRUST 2001-4
4.92% CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-4, 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 ONE HUNDRED NINETY SEVEN MILLION TWO
HUNDRED THOUSAND DOLLARS payable on each Payment Date in the aggregate amount,
if any, payable from the Note Payment Account in respect of principal on the
Class A-4 Notes pursuant to Section 2.8 of the Indenture, dated as of December
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 August 2007
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 Appendix A 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 the
rate per annum shown above on each Payment Date until the principal of this
Class A-4 Note is paid or made available for payment, on the principal amount
of this Class A-4 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-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 a
360-day year of twelve 30-day months. 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.
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: December 13, 2001
MMCA AUTO OWNER TRUST 2001-4,
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 4.92% Class A-4 Asset Backed Notes,
which, together with the 2.010% Class A-1 Asset-Backed Notes, the 2.89% Class
A-2 Asset-Backed Notes, the 3.97% Class A-3 Asset-Backed Notes and the 4.84%
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. Except as otherwise set forth in the Indenture, the Class A-4 Notes
are equal in right of payment to the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes and senior in right of payment to the Class B Notes.
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 January 15, 2002.
As described above, the entire unpaid principal amount of
this Class A-4 Note shall be due and payable on the earlier of the Class A-4
Stated Maturity Date and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Holders of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-4 Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-4 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-4 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-4
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-4 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-4
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-4
Note and of any Class A-4 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-4 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-4 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-4 Note may be
registered on the Note Register upon surrender of this Class A-4 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, and thereupon one or more new
Class A-4 Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be charged for any registration of transfer or exchange
of this Class A-4 Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee
on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder or
Note Owner will not at any time institute against the Seller, or the Issuer,
or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or the
Basic Documents and (b) any claim that such Noteholder or Note Owner may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim that such Noteholder may have against the Seller that
such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Seller becomes a
debtor or debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in
a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR,
IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class A-4
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-4 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this Class
A-4 Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-4 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-4 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-4
Note and of any Class A-4 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-4 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The 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-8
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 $40,066,000
No. R-1 CUSIP NO. 553083 CC 8
MMCA AUTO OWNER TRUST 2001-4
4.84% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-4, 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 FORTY MILLION SIXTY SIX THOUSAND
DOLLARS payable on each Payment Date in the aggregate amount, if any, payable
from the Note Payment Account in respect of principal on the Class B Notes
pursuant to Section 2.8 of the Indenture, dated as of December 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 August 2008 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 Appendix A 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 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 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 side 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.
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: December 13, 2001
MMCA AUTO OWNER TRUST 2001-4,
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 4.84% Class B Asset Backed Notes, which,
together with the 2.010% Class A-1 Asset-Backed Notes, the 2.89% Class A-2
Asset-Backed Notes, the 3.97% Class A-3 Asset-Backed Notes and the 4.92% 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. Except as otherwise set forth in the Indenture, the Class B Notes
are subordinated in right of payment to the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes.
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 January 15, 2002.
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 all the Notes Outstanding
of all Classes, voting as a group, have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class B Notes shall be made pro rata to the Holders
entitled thereto.
Payments of interest on this Class B Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class B Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class B Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class B Notes
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class B Note be submitted for notation
of payment. Any reduction in the principal amount of this Class B Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment
Date shall be binding upon all future Holders of this Class B Note and of any
Class B Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class B Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile prior
to such Payment Date, and the amount then due and payable shall be payable
only upon presentation and surrender of this Class B Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class B Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class B Note may be
registered on the Note Register upon surrender of this Class B Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, and thereupon one or more new
Class B Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Class B Note, but the transferor may be required to pay a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee
on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder or
Note Owner will not at any time institute against the Seller, or the Issuer,
or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or the
Basic Documents and (b) any claim that such Noteholder or Note Owner may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim that such Noteholder may have against the Seller that
such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Seller becomes a
debtor or debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in
a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR,
IN THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class B
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class B Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this Class
B Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class B Note be overdue, and none of the Issuer,
the Indenture Trustee or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class B Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class B Note
and of any Class B Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class B Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The 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-5
EXHIBIT C
FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)
December 13, 2001
To the Addressees Listed
on Schedule A hereto
Re: MMCA Auto Owner Trust 2001-4
Security Interest Matters
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors
Credit of America, Inc., a Delaware corporation ("MMCA"), MMCA Auto
Receivables Trust, a Delaware business trust ("MART") and MMCA Auto Owner
Trust 2001-4, a Delaware business trust (the "Trust") in connection with
the transactions contemplated by (i) the Purchase Agreement, dated as of
December 1, 2001 (the "Purchase Agreement"), between MMCA and MART, (ii)
the Sale and Servicing Agreement, dated as of December 1, 2001 (the "Sale
and Servicing Agreement"), by and among MART, as seller, MMCA, as servicer,
and the Trust, as issuer, (iii) the Indenture, dated as of December 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 December 1, 2001 (the "Trust Agreement"), between
MART and Wilmington Trust Company, as owner trustee. Capitalized terms not
otherwise defined herein have the meanings assigned to them in, or
incorporated by reference into, the Indenture.
Pursuant to the Purchase Agreement and the First-Tier
Assignment related thereto, MMCA proposes to sell to MART 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 on the date
hereof which are intended to be secured by new and used automobiles and
sport-utility vehicles (collectively, the "Financed Vehicles"), certain
monies due or received thereunder after the Cutoff Date, MMCA's security
interests in the Financed Vehicles, MMCA's rights under certain insurance
policies, certain rights under dealer agreements relating to the
Receivables (as hereinafter defined) 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 $49,900,000 principal amount of 2.010% Class
A-1 Asset Backed Notes (the "Class A-1 Notes"), $138,000,000 principal
amount of 2.89% Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
$145,000,000 principal amount of 3.97% Class A-3 Asset Backed Notes (the
"Class A-3 Notes"), $197,200,000 principal amount of 4.92% Class A-4 Asset
Backed Notes (the "Class A-4 Notes"), and $40,066,000 principal amount of
4.84% Class B Asset Backed Notes (the "Class B Notes" and, together with
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Note and the Class
A-4 Notes, the "Notes"), pursuant to the provisions of an Underwriting
Agreement, dated December 6, 2001 (the "Underwriting Agreement"), between
MART and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as representative of the several
underwriters named therein (in such capacity, the "Representative"). The
Trust also will issue $46,231,816.25 aggregate principal amount of Asset
Backed Certificates (the "Certificates") pursuant to the Trust Agreement.
In our examination, we have assumed the genuineness of
all signatures (including endorsements), the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of
such copies. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon statements and
representations of MMCA, MART and the Trust 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, the First-Tier Assignment
and the Securities Account Control Agreement, dated as of December 1, 2001
(the "Control Agreement") among MMCA, MART, the Trust, the Indenture
Trustee and the Securities Intermediary (as hereinafter defined)
(collectively, the "Agreements");
(b) a Certificate of MART with respect to prior financing
statements, dated the date hereof, a copy of which is attached as Exhibit A
hereto (the "MART Certificate");
(c) a Certificate of the Trust with respect to prior
financing statements, dated the date hereof, a copy of which is attached as
Exhibit B hereto (the "Trust Certificate");
(d) a certified copy of the certificate of trust of MART,
dated November 30, 2001, from the Secretary of State of the State of
Delaware as to MART's existence in such state (the "MART Secretary of State
Certificate");
(e) a certified copy of the certificate of trust of the
Trust, dated November 30, 2001, from the Secretary of State of the State of
Delaware as to the Trust's existence in such state (the "Trust Secretary of
State Certificate");
(f) a certificate of the Secretary of State of the State
of Delaware dated November 30, 2001 and a bringdown certificate dated the
date hereof as to the existence and good standing of MART (the "MART Good
Standing Certificate");
(g) a certificate of the Secretary of State of the State
of Delaware dated November 30, 2001 and a bringdown certificate dated the
date hereof as to the existence and good standing of the Trust (the "Trust
Good Standing Certificate");
(h) an unfiled copy of a financing statement naming "MMCA
Auto Receivables Trust" as debtor, "MMCA Auto Owner Trust 2001-4" as
assignor and "Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee"
as secured party/assignee, which we understand will be filed within ten
days of the Closing Date in the office of the Secretary of State of the
State of Delaware (such filing office, the "Delaware Filing Office" and
such financing statement, the "MART/Trust Financing Statement");
(i) an unfiled copy of a financing statement naming "MMCA
Auto Owner Trust 2001-4" as debtor and "Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee" as secured party which we understand will be
filed within ten days of the Closing Date in the Delaware Filing Office
(such financing statement, the "Issuer/Indenture Trustee Financing
Statement");
(j) the reports of LEXIS Document Services as to
financing statements naming "MMCA Auto Receivables Trust" as debtor and on
file in the Delaware Filing Office, as of an effective date of October 5,
2001 (the "MART Search Report");
(k) the reports of LEXIS Document Services as to
financing statements naming "MMCA Auto Owner Trust 2001-4" as debtor and on
file in the Delaware Filing Office, as of an effective date of October 31,
2001 (the "Trust Search Report"); and
(l) such other agreements, certificates or documents as
we have deemed necessary or appropriate as a basis for the opinion set
forth below.
In making our examination of the Agreements, we have
assumed that the parties thereto had the power, corporate or otherwise, to
enter into and perform all of their respective obligations thereunder and
have also assumed the due authorization by all requisite action, corporate
or other, and the execution and delivery by such parties of the Agreements
and the validity and binding effect thereof.
As used herein, (i) "New York UCC" means the Uniform
Commercial Code as in effect on the date hereof in the State of New York
(without regard to laws referenced in Section 9-201 thereof); (ii)
"Delaware UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of Delaware (without regard to laws referenced in
Section 9-201 thereof); (iii) "UCC" means the New York UCC or the Delaware
UCC, as applicable; (iv) "Receivables" means the Receivables identified on
the Schedule of Receivables attached as Exhibit B to the Purchase Agreement
on the date hereof, to the extent such Receivables is subject to Article 9
of the UCC; (v) "Federal Book-Entry Regulations" means the United States
Department of the Treasury's regulations governing the transfer and pledge
of marketable securities issued by the U.S. Treasury and maintained in the
form of entries in the TRADES book-entry system in the records of the
federal reserve banks and set forth in 61 Fed. Reg. 43626 (1996) (codified
at 31 C.F.R. Part 357), and the United States Department of Housing and
Urban Development's regulations governing the transfer and pledge of
securities issued by the Federal National Mortgage Association ("FNMA") or
the Federal Home Loan Mortgage Corporation ("FHLMC") in each case
maintained in the form of entries in the records of federal reserve banks
and set forth in 62 Fed. Reg. 28975 (1996) (codified at 24 C.F.R. Part 81);
(vi) "Securities Intermediary" means Bank of Tokyo-Mitsubishi Trust
Company, solely in its capacity as a "securities intermediary" as defined
in the UCC; and (vii) "Securities Accounts" means account numbers ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, 26024365, 26024373 and 26024403 established at the Securities
Intermediary which we have been informed are, respectively, the Reserve
Account, the Collection Account, the Note Payment Account, the Payahead
Account and the Yield Supplement Account, established pursuant to the Sale
and Servicing Agreement, to the extent such accounts are subject to Article
8 or 9 of the UCC or the Federal Book-Entry Regulations.
We express no opinion as to the laws of any jurisdiction
other than (i) the UCC and (ii) with respect to opinion paragraphs 12 and
14, the Illinois Vehicle Code and (iii) with respect to opinion paragraphs
15 and 16, the Federal Book-Entry Regulations. We have relied, with your
consent, as to matters of Illinois law on the opinion of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois).
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. We note that the Sale and Servicing Agreement purports
to sell the Receivables and we express no opinion herein as to the proper
characterization of the transfer. However, irrespective of the
characterization of the transfer, the provisions of the Sale and Servicing
Agreement are effective under the New York UCC to create, in favor of the
Trust, a valid security interest in MART's rights in the Receivables and
proceeds thereof. If the transfer is characterized as a lien, the security
interest will secure payment of the Notes.
2. Pursuant to the provisions of the Sale and Servicing
Agreement, MART has authorized the filing of the MART/Trust Financing
Statement identifying the Receivables for purposes of Section 9-509 of the
Delaware UCC.
3. The MART/Trust Financing Statement includes not only
all of the types of information required by Section 9-502(a) of the
Delaware UCC but also the types of information without which the Delaware
Filing Office may refuse to accept the MART/Trust Financing Statement
pursuant to Section 9-516 of the Delaware UCC.
4. Under the Delaware UCC, irrespective of the
characterization of the transfer, the security interest of the Trust will
be perfected in MART's rights in the Receivables and the proceeds thereof
upon the later of the attachment of the security interest and the filing of
the MART/Trust Financing Statement in the Delaware Filing Office. We hereby
confirm that Schedule B hereto identifies all persons who (i) are
identified in the MART Search Report as having filed in the Delaware Filing
Office a financing statement naming "MMCA Auto Receivables Trust" as debtor
and containing a description of collateral sufficient to include the
Receivables as original collateral as of the effective date of the MART
Search Report, and (ii) have not consensually released or subordinated
their interest in the Receivables.
5. The provisions of the Indenture are effective to
create in favor of the Indenture Trustee, for the benefit of the Holders of
the Notes, a valid security interest under the New York UCC in the Trust's
rights in the Receivables and proceeds thereof to secure payment of the
Notes.
6. Pursuant to the provisions of the Indenture, the Trust
has authorized the filing of the Issuer/Indenture Trustee Financing
Statement identifying the Receivables for purposes of Section 9-509 of the
Delaware UCC.
7. The Issuer/Indenture Trustee Financing Statement
includes not only all of the types of information required by Section
9-502(a) of the Delaware UCC but also the types of information without
which the Delaware Filing Office may refuse to accept the Trust/Indenture
Trustee Financing Statement pursuant to Section 9-516 of the Delaware UCC.
8. Under the Delaware UCC, the security interest of the
Indenture Trustee will be perfected in the Trust's rights in the
Receivables and the proceeds thereof upon the later of the attachment of
the security interest and the filing of the Issuer/Indenture Trustee
Financing Statement in the Delaware Filing Office. We hereby confirm that
Schedule C hereto identifies all persons who (i) are identified in the
Trust Search Report as having filed in the Delaware Filing Office a
financing statement naming "MMCA Auto Owner Trust 2001-4" as debtor and
containing a description of collateral sufficient to include the
Receivables as original collateral as of the effective date of the Trust
Search Report, and (ii) have not consensually released or subordinated
their interest in the Receivables.
9. You have asked us whether MART is a "registered
organization" as defined in the Delaware UCC. Pursuant to 12 Del. C.
ss.3812(a), the Secretary of State of the State of Delaware is required to
maintain a public record showing MART to have been organized. Based on our
review of the MART Secretary of State Certificate and the MART Good
Standing Certificate, we are of the opinion that under the Delaware UCC,
MART is a "registered organization."
10. You have asked us whether the Trust is a "registered
organization" as defined in the Delaware UCC. Pursuant to 12 Del.
C.ss.3812(a), the Secretary of State of the State of Delaware is required
to maintain a public record showing the Trust to have been organized. Based
on our review of the Trust Secretary of State Certificate and the Trust
Good Standing Certificate, we are of the opinion that under the Delaware
UCC, the Trust is a "registered organization."
11. Assuming that the Receivables are secured by the
Financed Vehicles (as to which we express no opinion), then (i) pursuant to
Section 9-203(g) of the New York UCC, attachment of the security interest
of the Trust in the Receivables results in attachment in any underlying
security interest in the Financed Vehicles securing the Receivables and
(ii) pursuant to Section 9-308(e) of the Delaware UCC, perfection of the
security interest of the Trust in the Receivables results in perfection in
such underlying security interest in the Financed Vehicles. We call to your
attention that any such underlying collateral will continue to secure the
obligations for which such underlying collateral was pledged and will not
directly secure the obligations of MART to the Trust.
12. With respect to any Receivables secured by security
interest in Financed Vehicles for which a certificate of title has been
issued under the Illinois Vehicle Code, 625 ILCS 5, you have asked whether
the Illinois Vehicle Code requires that the Trust note its interest in any
such Financed Vehicles on the related certificate of title. We note that
Section 3-204(a) of the Illinois Vehicle Code provides: "A lienholder may
assign, absolutely or otherwise, his security interest in the vehicle to a
person other than the owner without affecting the interest of the owner or
the validity of the security interest, but any person without notice of the
assignment is protected in dealing with the lienholder as the holder of the
security interest and the lienholder remains liable for any obligations as
lienholder until the assignee is named as lienholder on the certificate."
We further note that Section 3-204(b) of the Illinois Vehicle Code
provides: "The assignee may, but need not to perfect the assignment, have
the certificate of title issued with the assignee named as lienholder, upon
delivering to the Secretary of State the certificate and anassignment by
the lienholder named in the certificate in the form the Secretary of State
prescribes." Accordingly, we are of the opinion that under the Illinois
Vehicle Code it is not required for the Trust to note its interest on the
certificate of title for any such Financed Vehicles in order to "perfect
the assignment" (within the meaning of the Illinois Vehicle Code) of any
security interest therein, although as noted above any person without
notice of the assignment is protected in dealing with the lienholder of
record.
13. Assuming that the Receivables are secured by the
Financed Vehicles (as to which we express no opinion), then (i) pursuant to
Section 9-203(g) of the New York UCC, attachment of the security interest
of the Indenture Trustee in the Receivables results in attachment in any
underlying security interest in the Financed Vehicles securing the
Receivables and (ii) pursuant to Section 9-308(e) of the Delaware UCC,
perfection of the security interest of the Indenture Trustee in the
Receivables results in perfection in such underlying security interest in
the Financed Vehicles. We call to your attention that any such underlying
collateral will continue to secure the obligations for which such
underlying collateral was pledged and will not directly secure the
obligations of the Trust to the Indenture Trustee.
14. With respect to any Receivables secured by security
interest in Financed Vehicles for which a certificate of title has been
issued under the Illinois Vehicle Code, 625 ILCS 5, you have asked whether
the Illinois Vehicle Code requires that the Indenture Trustee note its
interest in any such Financed Vehicles on the related certificate of title.
We note that Section 3-204(a) of the Illinois Vehicle Code provides: "A
lienholder may assign, absolutely or otherwise, his security interest in
the vehicle to a person other than the owner without affecting the interest
of the owner or the validity of the security interest, but any person
without noticeof the assignment is protected in dealing with the lienholder
as the holder of the security interest and the lienholder remains liable
for any obligations as lienholder until the assignee is named as lienholder
on the certificate." We further note that Section 3-204(b) of the Illinois
Vehicle Code provides: "The assignee may, but need not to perfect the
assignment, have the certificate of title issued with the assignee named as
lienholder, upon delivering to the Secretary of State the certificate and
anassignment by the lienholder named in the certificate in the form the
Secretary of State prescribes." Accordingly, we are of the opinion that
under the Illinois Vehicle Code it is not required for the Indenture
Trustee to note its interest on the certificate of title for any such
Financed Vehicles in order to "perfect the assignment" (within the meaning
of the Illinois Vehicle Code) of any security interest therein, although as
noted above any person without notice of the assignment is protected in
dealing with the lienholder of record.
Our opinions in paragraphs 1-14 above are subject to the
following qualifications:
(a) For purposes of opinion paragraphs 1 and 4, we have
assumed that the Receivables exist and that MART owns the Receivables and
we express no opinion as to the nature or extent of MART's rights in, or
title to, any of the Receivables, and for purposes of our opinions in
paragraphs 5 and 8, we have assumed that the Receivables exist and that the
Trust owns the Receivables and we express no opinion as to the nature or
extent of the Trust's rights in, or title to, any of the Receivables;
(b) Our opinion with respect to proceeds is subject to
the limitations set forth in Section 9-315 of the UCC and, in addition, we
call to your attention that in the case of certain types of proceeds, other
parties such as holders in due course, protected purchasers of securities,
persons who obtain control over securities entitlements and buyers in the
ordinary course of business may acquire a superior interest or may take
their interest free of the respective security interest;
(c) We have assumed that the principal obligation of the
account debtor or obligator under each Receivable is a monetary obligation,
does not evidence an order to pay, and does not contain an acknowledgment
by a bank that the bank has received for deposit a sum of money or funds,
and is not a letter of credit or a deposit account;
(d) We have assumed that there are no agreements
prohibiting, restricting or conditioning the assignment of any portion of
the Receivables;
(e) We call to your attention that even though the UCC
renders anti-assignment provisions ineffective for purposes of creation,
attachment or perfection of the security interest pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the UCC, nonetheless, in many cases,
assignee of such a security interest may obtain limited rights thereunder
(including restrictions on rights of use, assignment and enforcement);
(f) We have assumed that "value" as defined in Section
1-201(44) of the UCC was given;
(g) Pursuant to Section 9-311(a) of the UCC, we express
no opinion with respect to any property subject to a statute, regulation or
treaty of the United States whose requirements for a security interest's
obtaining priority over the rights of a lien creditor with respect to the
property preempt Section 9-310(a) of the UCC;
(h) For purposes of our opinion paragraphs 9 and 10, we
have assumed that each of MART and the Trust is not organized under the
laws of any jurisdiction other than the State of Delaware and that the
internal affairs of MART and the Trust are not otherwise subject to the
laws of any jurisdiction other than Delaware. We call to your attention
that to the extent that the internal affairs of MART or the Trust are
subject to regulation under the laws of another State, the State of
Delaware may recognize such authority. See, e.g., ▇▇▇▇▇▇▇▇▇ Inc. ▇. ▇▇▇▇▇,
531 A.2d 206 (Del. 1987). Further, we have assumed that each of MART and
the Trust has not and will not file (A) any certificates of transfer or
continuance pursuant to Delaware General Corporation Law ("DGCL") ss.
390(a), Delaware Revised Uniform Limited Partnership Act ("DRULPA") ss.
17-216(a) or Delaware Limited Liability Company Act ("DLLC") ss. 18-213(a),
(B) any certificates of domestication pursuant to DGCL ss. 388(b)(1),
DRULPA ss.17-215(i) or DLLC ss. 18-212(b) or (C) any similar certificates
in any jurisdiction other than the State of Delaware;
(i) Our opinion in paragraph 9 is based solely upon our
review of the MART Good Standing Certificate and the certificate of trust
of MART;
(j) Our opinion in paragraph 10 is based solely upon our
review of the Trust Good Standing Certificate and the certificate of trust
of the Trust;
(k) We note that we have delivered to you our opinion
with respect to the status of each of MART and the Trust as a "registered
organization." Except to the extent set forth in paragraphs 9 and 10 above,
we express no opinions as to the law governing perfection, the effect of
perfection and non-perfection or priority of the security interest;
(l) We express no opinion regarding the security interest
of the Trust or the Indenture Trustee in any Receivables consisting of
claims against any government or governmental agency (including, without
limitation, the United States of America or any state thereof or any agency
or department of the United States of America or any state thereof); and
(m) We have assumed that (i) the Sale and Servicing
Agreement constitutes the legal, valid and binding obligation of all
parties thereto, enforceable against all parties thereto in accordance with
its terms and (ii) the Indenture constitutes the legal, valid and binding
obligation of all parties thereto, enforceable against all parties thereto,
in accordance with its terms.
15. The provisions of the Indenture are effective to
create, in favor of the Indenture Trustee for the benefit of the Holders of
the Notes, a valid security interest under the UCC in the Trust's rights in
the Securities Accounts.
16. Under the UCC, the provisions of the Control
Agreement are effective to perfect the security interest of the Indenture
Trustee, for the benefit of the Holders of the Notes, in the Trust's rights
in the Securities Accounts.
Our opinions in paragraphs 15 and 16, with respect to the
security interest of the Indenture Trustee in the Securities Accounts, are
subject to the following additional assumptions and qualifications:
(a) we have assumed that the Trust has sufficient rights
in the Securities Accounts for the security interest of the Indenture
Trustee for the benefit of the Holders of the Notes to attach, and we
express no opinion as to the nature or extent of the Trust's rights in, or
title to, any of the Securities Accounts. In addition, we express no
opinion as to the nature or extent of the Securities Intermediary's rights
in, or title to, any securities or other financial assets underlying any
"security entitlements" now or hereafter credited to any Securities
Account. We note that to the extent that the Securities Intermediary
maintains any financial asset in a "clearing corporation" (as defined in
Section 8-102(a)(5) of the UCC), pursuant to Section 8-111 of the UCC, the
rules of such clearing corporation may affect the rights of the Securities
Intermediary or the Indenture Trustee and, to the extent any of the
financial assets are issued by the U.S. Treasury or certain other federally
sponsored issuers, certain federal officials, including the Secretary of
the Treasury and the Secretary of the Department of Housing and Urban
Development, may waive the Federal Book-Entry Regulations and we express no
opinion on the effect of any such waiver on the opinions expressed herein;
(b) insofar as our opinions relate to the Federal
Book-Entry Regulations, such opinions are limited to regulations published
in the Code of Federal Regulations or the Federal Register, without regard
to any interpretations, operating circulars or other communications from
the Department of the Treasury, the Board of Governors of the Federal
Reserve System, any Federal Reserve Bank, the Department of Housing and
Urban Development or any other federal agency or instrumentality. Further,
to the extent any of the financial assets are issued by the U.S. Treasury
or certain other federally sponsored issuers, certain federal officials,
including the Secretary of the Treasury and the Secretary of the Department
of Housing and Urban Development, may waive the Federal Book-Entry
Regulations and we express no opinion with respect to the effect of any
such waiver on the opinions expressed herein;
(c) our opinion with respect to proceeds is subject to
the limitations set forth in Section 9-315 of the UCC and, in addition, we
call to your attention that in the case of certain types of proceeds, other
parties such as holders in due course, protected purchasers of securities,
persons who obtain control over securities entitlements and buyers in the
ordinary course of business may acquire a superior interest or may take
their interest free of the security interest of the Indenture Trustee for
the benefit of the Holders of the Notes;
(d) we have assumed that "value" as defined in Section
1-201(44) of the UCC was given;
(e) we call to your attention that under the UCC, actions
taken by the Securities Intermediary or the Indenture Trustee (including
amending the Indenture or the Control Agreement in a manner in which either
(a) eliminates the Indenture Trustee's "control" over any of the Securities
Accounts, (b) changes the law governing any of the Securities Accounts or
(c) changes the identity of the entitlement holder) may adversely affect
the security interest of the Indenture Trustee for the benefit of the
Holders of the Notes. 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 any security interest subject to the UCC;
(f) we have assumed that each of the Control Agreement
and the Indenture is the legal, binding and enforceable obligation of all
parties thereto;
(g) we have assumed that each Securities Account is a
"securities account" (as defined in the UCC) and the Securities
Intermediary in the ordinary course of its business maintains Securities
Accounts for customers and is acting in that capacity;
(h) we call to your attention that the law of a
securities intermediaries' jurisdiction governs, among other things, the
rights and duties of a securities intermediary and the entitlement holder
arising out of a "security entitlement" and whether an adverse claim can be
asserted against a person who acquires a "security entitlement" from a
securities intermediary;
(i) we express no opinion with respect to any security or
other financial asset credited to such securities account which has not
been (i) registered in the name of, or indorsed to, the Securities
Intermediary or indorsed in blank or (ii) credited to a securities account
in the name of the Securities Intermediary;
(j) we express no opinion with respect to any property or
assets now or hereafter credited to any Securities Account that is not a
"financial asset" and we express no opinion whether or to what extent any
particular item of property credited to such securities account is a
"financial asset." Without limiting the foregoing, we express no opinion
with respect to any property or asset now or hereafter credited to such
securities account which is excluded from Article 9 of the UCC pursuant to
Section 9-109 thereof;
(k) we express no opinion with respect to the security
interest of the Indenture Trustee for the benefit of the Holders of the
Notes in any of the following types of property: (a) any option or similar
obligation issued by a clearing corporation to its participants; (b) any
commodity contract; (c) an ownership interest evidenced by certificates of
stock or other instruments and a leasehold evidenced by a proprietary
lease, or either of the foregoing, from a corporation or partnership formed
for the purpose of cooperative ownership of real estate; (d) any interest
in a trust, partnership or limited liability company; or (e) property of a
type constituting financial assets not subject to Article 9 of the UCC; and
(l) we express no opinion as to the law governing
perfection, the effect of perfection and non-perfection or priority of the
security interest.
Very truly yours,
Schedule A
Mitsubishi Motors Credit of America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, N.A.,
as Trustee
MMCA Auto Receivables Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MMCA Auto Owner Trust 2001-4
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Wilmington Trust Company,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Bank of Tokyo-Mitsubishi Trust Company,
as Indenture Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as Representative of the several Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Schedule B
SCHEDULE OF PRIOR FILERS WITH MART AS DEBTOR
-----------------------------------------------------------------------------------------------------
State File Date File Number Secured Party Name(s)
-----------------------------------------------------------------------------------------------------
Delaware 11/02/1999 19990057346 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 12/29/1999 19990069261 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 03/01/2000 20000012457 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 08/21/2000 20000054216 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 10/04/2000 20000066681 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 11/28/2000 20000081308 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 01/24/2001 20010071808 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 02/15/2001 20010135900 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 03/23/2001 20010249297 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 04/26/2001 20010351267 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 04/26/2001 20010352083 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 06/29/2001 20010606470 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Delaware 10/29/2001 20011337166 Bank of Tokyo-Mitsubishi Trust Company
-----------------------------------------------------------------------------------------------------
Schedule C
SCHEDULE OF PRIOR FILERS WITH THE TRUST AS DEBTOR
None.
EXHIBIT A
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
Dated: December 13, 2001
This Certificate is being delivered to and may be relied
upon by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden") in connection
with the opinion of counsel, dated the same date as this Certificate, with
respect to security interest (the "Opinion") to be rendered by Skadden in
connection with the transaction described in the Opinion. I understand that
Skadden will rely upon the facts, opinions, and beliefs set forth in this
Certificate and that the Opinion is premised upon the truth and accuracy of
the facts, opinions, and beliefs set forth in this Certificate.
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. None of the Receivables are included in any list of
receivables referenced in any financing statement listed on Schedule B to
the Opinion.
(2) Neither at nor after the time of conveyance nor at
any time hereinafter will MART convey any of the Receivables to any person
other than MMCA Auto Owner Trust 2001-4 (the "Trust").
(3) At all times since the establishment of MART, MART is
a business trust organized under the law of Delaware.
(4) At all times since the establishment of MART and on
the date hereof, MART has had a mailing address of ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Indenture, dated as
of December 1, 2001, between the Trust and the 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:
EXHIBIT B
MMCA AUTO OWNER TRUST 2001-4
OFFICER'S CERTIFICATE
Dated: December 13, 2001
This Certificate is being delivered to and may be relied
upon by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden") in connection
with the opinion of counsel, dated the same date as this Certificate, with
respect to security interest (the "Opinion") to be rendered by Skadden in
connection with the transaction described in the Opinion. I understand that
Skadden will rely upon the facts, opinions, and beliefs set forth in this
Certificate and that the Opinion is premised upon the truth and accuracy of
the facts, opinions, and beliefs set forth in this Certificate.
The undersigned, a duly authorized officer of MMCA AUTO
OWNER TRUST 2001-4 (the "Trust"), does hereby certify as follows:
(1) No financing statements or other filings have been
filed naming the Trust 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. None of the Receivables are included in any
list of receivables referenced in any financing statement listed on
Schedule C to the Opinion.
(2) Neither at nor after the time of conveyance nor at
any time hereinafter will the Trust convey any of the Receivables to any
person other than Bank of Tokyo-Mitsubishi Trust Company (the "Indenture
Trustee").
(3) At all times since the establishment of the Trust,
the Trust is a business trust organized under the law of Delaware.
(4) At all times since the establishment of the Trust and
on the date hereof, the Trust has had a mailing address of MMCA Auto Owner
Trust 2001-4, c/o Wilmington Trust Company, as Owner Trustee, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration.
Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Indenture, dated as
of December 1, 2001, between the Trust and the Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand to this
Certificate as of the day hereinabove set forth.
MMCA AUTO OWNER TRUST 2001-4
by: Mitsubishi Motors Credit of
America, Inc.,
as Administrator
By:_____________________________
Name:
Title:
Annex A
[FORM OF RETAIL INSTALLMENT SALE CONTRACT]