Exhibit 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2002-4,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of October 1, 2002
___________________________
$66,300,000 1.76375% Class A-1 Asset Backed Notes
$230,000,000 1.92% Class A-2 Asset Backed Notes
$200,000,000 2.55% Class A-3 Asset Backed Notes
$173,500,000 3.05% Class A-4 Asset Backed Notes
$65,298,000 3.82% Class B Asset Backed Notes
$35,808,000 4.56% Class C Asset Backed Notes
___________________________
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CROSS REFERENCE TABLE1
TIA Indenture
Section Section
------- -------
310 (a)(1)...............................................................6.11
(a)(2)...............................................................6.11
(a)(3)...............................................................6.10
(a)(4)..............................................................N.A.2
(a)(5)...............................................................6.11
(b).............................................................6.8; 6.11
(c)..................................................................N.A.
311 (a)..................................................................6.12
(b)..................................................................6.12
(c)..................................................................N.A.
312 (a)....................................................................7.1
(b)..................................................................7.2
(c)..................................................................7.2
313 (a)..................................................................7.4
(b)(1)...............................................................7.4
(b)(2).........................................................7.4; 11.5
(c)..................................................................7.4
(d)..................................................................7.3
314 (a)..................................................................7.3
(b)................................................................11.15
(c)(1)..............................................................11.1
(c)(2)..............................................................11.1
(c)(3)..............................................................11.1
(d).................................................................11.1
(e).................................................................11.1
(f).................................................................11.1
315 (a)..................................................................6.1
(b)............................................................6.5; 11.5
(c)..................................................................6.1
(d)..................................................................6.1
(e)..................................................................5.13
316 (a) (last sentence)...................................................1.1
(a)(1)(A)............................................................5.11
(a)(1)(B)............................................................5.12
(a)(2)...............................................................N.A.
(b)..................................................................5.7
(c)..................................................................N.A
317 (a)(1)...............................................................5.3
(a)(2)...............................................................5.3
(b)..................................................................3.3
318 (a).................................................................11.7
_______________________
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE............................................................3
Section 1.1 Definitions.........................................................................3
Section 1.2 Incorporated by Reference of Trust Indenture Act....................................3
ARTICLE II - THE NOTES............................................................................................4
Section 2.1 Form................................................................................4
Section 2.2 Execution, Authentication and Delivery..............................................4
Section 2.3 Temporary Notes.....................................................................5
Section 2.4 Tax Treatment.......................................................................5
Section 2.5 Registration; Registration of Transfer and Exchange.................................5
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes..........................................6
Section 2.7 Persons Deemed Owner................................................................7
Section 2.8 Payments............................................................................7
Section 2.9 Cancellation.......................................................................10
Section 2.10 Release of Collateral..............................................................11
Section 2.11 Book-Entry Notes...................................................................11
Section 2.12 Notices to Clearing Agency.........................................................12
Section 2.13 Definitive Notes...................................................................12
Section 2.14 Authenticating Agents..............................................................12
ARTICLE III - COVENANTS..........................................................................................13
Section 3.1 Payment Covenant...................................................................13
Section 3.2 Maintenance of Office or Agency....................................................13
Section 3.3 Money for Payments To Be Held in Trust.............................................13
Section 3.4 Existence..........................................................................14
Section 3.5 Protection of Trust Estate.........................................................15
Section 3.6 Opinions as to Trust Estate........................................................15
Section 3.7 Performance of Obligations; Servicing of Receivables...............................15
Section 3.8 Negative Covenants.................................................................17
Section 3.9 Annual Statement as to Compliance..................................................18
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of
Subtrust Assets....................................................................18
Section 3.11 No Other Business..................................................................18
Section 3.12 No Borrowing.......................................................................18
Section 3.13 Servicer's Obligations.............................................................18
Section 3.14 Guarantees, Loans, Advances and Other Liabilities..................................18
Section 3.15 Capital Expenditures...............................................................18
Section 3.16 Further Instruments and Acts.......................................................18
Section 3.17 Restricted Payments................................................................19
Section 3.18 Notice of Events of Default........................................................19
Section 3.19 Removal of Administrator...........................................................19
ARTICLE IV - SATISFACTION AND DISCHARGE..........................................................................19
Section 4.1 Satisfaction and Discharge of Indenture............................................19
Section 4.2 Satisfaction and Discharge of the Notes............................................20
Section 4.3 Application of Trust Money.........................................................21
Section 4.4 Repayment of Monies Held by Paying Agent...........................................21
ARTICLE V - REMEDIES.............................................................................................21
Section 5.1 Events of Default..................................................................21
Section 5.2 Acceleration of Maturity; Rescission and Annulment.................................23
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee..................................................................23
Section 5.4 Remedies; Priorities...............................................................25
Section 5.5 Optional Preservation of the Receivables...........................................26
Section 5.6 Limitation of Suits................................................................26
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..............27
Section 5.8 Restoration of Rights and Remedies.................................................27
Section 5.9 Rights and Remedies Cumulative.....................................................27
Section 5.10 Delay or Omission Not a Waiver.....................................................27
Section 5.11 Control by Noteholders.............................................................27
Section 5.12 Waiver of Past Default.............................................................28
Section 5.13 Undertaking for Costs..............................................................28
Section 5.14 Waiver of Stay or Extension Laws...................................................29
Section 5.15 Action on Notes....................................................................29
Section 5.16 Performance and Enforcement of Certain Obligations.................................29
ARTICLE VI - THE INDENTURE TRUSTEE...............................................................................30
Section 6.1 Duties of Indenture Trustee........................................................30
Section 6.2 Rights of Indenture Trustee........................................................31
Section 6.3 Individual Rights of Indenture Trustee.............................................32
Section 6.4 Indenture Trustee's Disclaimer.....................................................32
Section 6.5 Notice of Defaults.................................................................32
Section 6.6 Reports by Indenture Trustee to Holders............................................32
Section 6.7 Compensation and Indemnity.........................................................32
Section 6.8 Replacement of Indenture Trustee...................................................33
Section 6.9 Successor Indenture Trustee by Merger..............................................33
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................34
Section 6.11 Eligibility; Disqualification......................................................35
Section 6.12 Preferential Collection of Claims Against Issuer...................................35
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses..............................35
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING......................................................................36
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.............36
Section 7.2 Preservation of Information; Communications to Noteholders.........................36
Section 7.3 Reporting by Issuer................................................................36
Section 7.4 Reporting and Notices by Indenture Trustee.........................................36
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..............................................................37
Section 8.1 Collection of Money................................................................37
Section 8.2 Trust Accounts.....................................................................37
Section 8.3 General Provisions Regarding Accounts..............................................37
Section 8.4 Release of Trust Estate............................................................38
Section 8.5 Opinion of Counsel.................................................................38
ARTICLE IX - SUPPLEMENTAL INDENTURES.............................................................................39
Section 9.1 Supplemental Indentures Without Consent of Noteholders.............................39
Section 9.2 Supplemental Indentures with Consent of Noteholders................................40
Section 9.3 Execution of Supplemental Indentures...............................................42
Section 9.4 Effect of Supplemental Indenture...................................................42
Section 9.5 Conformity with Trust Indenture Act................................................42
Section 9.6 Reference in Notes to Supplemental Indentures......................................42
ARTICLE X - REDEMPTION OF NOTES..................................................................................42
Section 10.1 Redemption.........................................................................42
Section 10.2 Form of Redemption Notice..........................................................43
Section 10.3 Notes Payable on Redemption Date...................................................43
ARTICLE XI - MISCELLANEOUS.......................................................................................43
Section 11.1 Compliance Certificates and Opinions, etc..........................................43
Section 11.2 Form of Documents Delivered to Indenture Trustee...................................45
Section 11.3 Acts of Noteholders................................................................45
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies....................46
Section 11.5 Notices to Noteholders; Waiver.....................................................47
Section 11.6 Alternate Payment and Notice Provisions............................................48
Section 11.7 Conflict with Trust Indenture Act..................................................48
Section 11.8 Effect of Headings and Table of Contents...........................................48
Section 11.9 Successors and Assigns.............................................................48
Section 11.10 Separability.......................................................................48
Section 11.11 Benefits of Indenture..............................................................48
Section 11.12 Legal Holiday......................................................................48
Section 11.13 Governing Law......................................................................48
Section 11.14 Counterparts.......................................................................48
Section 11.15 Recording of Indenture.............................................................48
Section 11.16 Trust Obligation...................................................................49
Section 11.17 No Petition; Subordination; Claims Against Seller..................................49
Section 11.18 Inspection.........................................................................49
Section 11.19 Employee Benefit Plans.............................................................50
SCHEDULES
Schedule of Receivables...............................................................................Schedule A
List of Permitted Investments.........................................................................Schedule I
EXHIBITS
Form of Class A-1 Note ..............................................................................Exhibit A-1
Form of Class A-2 Note...............................................................................Exhibit A-2
Form of Class A-3 Note...............................................................................Exhibit A-3
Form of Class A-4 Note...............................................................................Exhibit A-4
Form of Class B Note Exhibit B
Form of Class C Note Exhibit C
Form of Opinion of Counsel Pursuant to Section 3.6(a)................................................Exhibit D
ANNEXES
Form of Retail Installment Sale Contract.............................................................Annex A
APPENDICES
Definitions and Usage................................................................................Appendix A
INDENTURE, dated as of October 1, 2002 (as amended, supplemented or
otherwise modified and in effect from time to time, this "Indenture"), between
MMCA AUTO OWNER TRUST 2002-4, a Delaware statutory trust (the "Issuer"), and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York banking corporation, as
trustee for the benefit of the Noteholders and not in its individual capacity
(in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuer's 1.76375%
Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 1.92% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), 2.55% Class A-3 Asset Backed Notes (the
"Class A-3 Notes"), 3.05% 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"), 3.82% Class B Asset Backed Notes (the "Class B
Notes") and 4.56% Class C Asset Backed Notes (the "Class C Notes" and,
together with the Class A Notes and the Class B 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 Initial Receivables;
(b) with respect to Initial Receivables that are Actuarial
Receivables, monies due thereunder after the Initial Cutoff Date (including
Payaheads) and, with respect to Initial Receivables that are Simple Interest
Receivables, monies received thereunder after the Initial Cutoff Date;
(c) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any other interest of the
Issuer in such Financed Vehicles;
(d) all rights to receive proceeds with respect to the Initial
Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the related Financed Vehicles or
related Obligors;
(e) all rights to receive proceeds with respect to the Initial
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements;
(f) all of the Issuer's rights to the Receivable Files that relate to
the Initial Receivables;
(g) the Trust Accounts and all amounts, securities, financial assets,
investments and other property deposited in or credited to any of the
foregoing and all proceeds thereof;
(h) all rights under the Sale and Servicing Agreement and the Yield
Supplement Agreement;
(i) all rights under the Purchase Agreement, including the right of
the Seller to cause MMCA to repurchase Receivables from the Seller;
(j) all payments and proceeds with respect to the Initial 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 an Initial Receivable that is a Final Payment
Receivable), guarantees and other collateral securing an Initial Receivable
(other than an Initial 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 Initial Receivables in effect as
of the Initial 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 Issuer hereby Grants to the Indenture Trustee on each Subsequent
Transfer 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 Subsequent Receivables;
(b) with respect to Subsequent Receivables that are Actuarial
Receivables, monies due thereunder on or after the related Subsequent Cutoff
Date (including Payaheads) and, with respect to Subsequent Receivables that
are Simple Interest Receivables, monies received thereunder on or after the
related Subsequent Cutoff Date;
(c) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Subsequent Receivables and any other interest of the
Issuer in such Financed Vehicles;
(d) all rights to receive proceeds with respect to the Subsequent
Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the related Financed Vehicles or
related Obligors;
(e) all rights to receive proceeds with respect to such Subsequent
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements;
(f) all rights to the Receivable Files that relate to such Subsequent
Receivables;
(g) all payments and proceeds with respect to such Subsequent
Receivables held by the Servicer;
(h) 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 Subsequent Receivable that is a Final
Payment Receivable), guarantees and other collateral securing a Subsequent
Receivable (other than a Subsequent Receivable purchased by the Servicer or
repurchased by the Seller);
(i) all of the Seller's rights under the related First-Tier
Subsequent Assignment;
(j) all rebates of premiums and other amounts relating to insurance
policies and other items financed under such Subsequent Receivables in effect
as of the related Subsequent Cutoff Date; and
(k) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any of the foregoing.
The foregoing Grants are 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, the Class B Notes and the Class C Notes,
together with the Indenture Trustee's Certificates of Authentication, shall be
in substantially the form set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇,
▇▇▇▇▇▇▇ ▇-▇, Exhibit B and Exhibit C, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, B and C hereto
are part of the terms of this Indenture and are incorporated herein by
reference.
Section 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by any of its
Responsible Officers. The signature of any such Responsible Officer on the
Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of individuals
who were at any time Responsible Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$66,300,000, Class A-2 Notes for original issue in an aggregate principal
amount of $230,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $200,000,000, Class A-4 Notes for original issue in an
aggregate principal amount of $173,500,000, Class B Notes for original issue
in an aggregate principal amount of $65,298,000 and Class C Notes for original
issue in an aggregate principal amount of $35,808,000. The aggregate principal
amounts of Notes outstanding at any time may not exceed those respective
amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication. The
Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to Section
2.13, the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a), the
Issuer shall cause Definitive Notes to be prepared without unreasonable delay.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Issuer shall execute, and the Indenture Trustee
shall authenticate and deliver in exchange therefor, a like principal amount
of Definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
Section 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The Issuer,
by entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local income
and franchise tax purposes as indebtedness of the Issuer.
Section 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. Upon any resignation of any Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, (i) the Issuer shall give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location and any change in the location, of the Note Register, (ii) the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof and (iii) the Indenture Trustee
shall have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2, if
the requirements of Section 8-401 of the Relevant UCC are met, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denomination, of a like aggregate principal amount. The Indenture
Trustee may rely upon the Administrator with respect to the determination of
whether the requirements of Section 8-401 of the Relevant UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate, and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making such
exchange is entitled to receive. The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.5 notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
(i) Each Person to whom a Note is transferred will be required to
represent, in the case of a Definitive Note, or deemed to represent, in the
case of a Book-Entry Note, that (x) such Person is not an employee benefit
plan, as described in Section 3(3) of ERISA, or a plan, as defined in Section
4975(E)(1) of the Code, that is subject to Title I of ERISA or to Section 4975
of the Code, a government plan subject to any state or local law similar to
Title I of ERISA or Section 4975 of the Code, or a Person investing on behalf
of or with "plan assets" of such a plan, or (y) the Person's acquisition,
holding and disposition of the Note are and will be eligible for relief under
a prohibited transaction exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice
to the Issuer, the Note Registrar or the Indenture Trustee that such Note has
been acquired by a protected purchaser, and provided that the requirements of
Section 8-405 of the Relevant UCC are met, the Issuer shall execute, and upon
its request the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days of the Indenture Trustee's receipt of evidence to its
satisfaction of such destruction, loss or theft shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note
of the same Class, the Issuer may pay such destroyed, lost or stolen Note when
so due or payable or upon the Redemption Date without surrender thereof. The
Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-405 of the Relevant UCC
are met. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note
was delivered or any assignee of such Person, except a protected purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest,
if any, on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions from
the Servicer pursuant to Section 4.6(c) of the Sale and Servicing Agreement,
the Indenture Trustee shall withdraw the Total Available Funds on deposit in
the Collection Account for the related Collection Period and make the
following payments and deposits for such Payment Date in the following order
of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) with the same priority and ratably, in accordance with
the outstanding balance of the Class A Notes, to the Note Payment
Account, the Accrued Note Interest for the Class A Notes:
provided, that, if there are not sufficient funds available
to pay the entire amount of the Accrued Note Interest for the Class A
Notes, the amounts available shall be applied to the payment of such
interest on the Class A Notes on a pro rata basis;
(iii) to the Note Payment Account, the Accrued Note Interest
for the Class B Notes;
(iv) to the Note Payment Account, the Accrued Note Interest
for the Class C Notes;
(v) to the Note Payment Account, the Principal Distribution
Amount;
(vi) to the Reserve Account, the amount, if any, necessary
to reinstate the balance in the Reserve Account up to the Specified
Reserve Balance;
(vii) prior to the payment in full of the aggregate
principal balance of the Notes, to the Note Payment Account, any
remaining Total Available Funds; and
(viii) following the payment in full of the aggregate
principal balance of the Notes, to the Certificate Distribution
Account, any remaining Total Available Funds.
Notwithstanding the foregoing, following the occurrence and during
the continuation of an Event of Default which has resulted in an acceleration
of the Notes, on each Payment Date the Total Available Funds shall be
deposited in the Note Payment Account and applied in accordance with Section
2.8(f).
(b) The principal of each Note shall be payable in installments on
each Payment Date in an aggregate amount (unless the Notes have been
accelerated in accordance with Section 5.2 following the occurrence of an
Event of Default) for all Classes of Notes equal to the Principal Distribution
Amount with respect to such Payment Date. On each Payment Date, unless the
Notes have been accelerated in accordance with Section 5.2 following the
occurrence of an Event of Default, the Issuer shall cause to be paid all
amounts on deposit in the Note Payment Account with respect to the related
Collection Period in the following order of priority:
(i) to the Class A Noteholders, Accrued Note Interest (and,
if amounts on deposit in the Note Payment Account are insufficient
for such purpose, payments shall be made to the Class A Noteholders
pro rata in proportion to the Accrued Note Interest for each Class of
Class A Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class C Noteholders, Accrued Note Interest;
(iv) to the Class A-1 Noteholders, 100% of the Principal
Distribution Amount in reduction of principal until the Class A-1
Notes are paid in full;
(v) following payment in full of the Class A-1 Notes, the
Class A Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class A-2 Noteholders until the Class
A-2 Notes are paid in full, then to the Class A-3 Noteholders until
the Class A-3 Notes are paid in full, then to the Class A-4
Noteholders until the Class A-4 Notes are paid in full;
(vi) following payment in full of the Class A-1 Notes, the
Class B Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class B Noteholders until the Class B
Notes are paid in full; and
(vii) following payment in full of the Class A-1 Notes, the
Class C Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class C Noteholders until the Class C
Notes are paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent not
previously paid, will be due on the Class A-1 Stated Maturity Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid,
will be due on the Class A-2 Stated Maturity Date, the principal amount of the
Class A-3 Notes, to the extent not previously paid, will be due on the Class
A-3 Stated Maturity Date, the principal amount of the Class A-4 Notes, to the
extent not previously paid, will be due on the Class A-4 Stated Maturity Date,
the principal amount of the Class B Notes, to the extent not previously paid,
will be due on the Class B Stated Maturity Date, and the principal amount of
the Class C Notes, to the extent not previously paid, will be due on the
Class C Stated Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes and the Class C Notes shall accrue
interest at the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the
Class A-4 Rate, the Class B Rate and the Class C Rate, respectively, and such
interest shall be due and payable on each Payment Date. Interest on the 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, the Class B Notes and the Class C 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 the Accrued Note
Interest for each Class of 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;
(viii) eighth, to the Class C Noteholders, Accrued Note
Interest;
(ix) ninth, to the Class C Noteholders, the outstanding
principal amount of the Class C Notes as of such Payment Date (prior
to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of the Class C
Notes has been paid in full; and
(x) tenth, to the Certificateholders.
Section 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.9, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Order that they be destroyed or returned to
it, provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
Section 2.10 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt of (i) an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent, if any, provided for in this
Indenture relating to the release of the property from the lien of this
Indenture have been complied with, provided that counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel
in lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates. If the Commission shall issue an
exemptive order under TIA Section 304(d) modifying the Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), the Indenture Trustee
shall release property from the lien of this Indenture in accordance with the
conditions and procedures set forth in such exemptive order.
Section 2.11 Book-Entry Notes. The Notes, upon original issuance,
shall be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to the Indenture Trustee as custodian for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. The Book-Entry Notes shall be registered initially on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner thereof shall receive a definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.13.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole Holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this Section 2.11
conflict with any other provisions of this Indenture, the provisions
of this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the Clearing
Agency and/or the Clearing Agency Participants pursuant to the Note
Depository Agreement; unless and until Definitive Notes are issued
pursuant to Section 2.13, the initial Clearing Agency shall make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the principal amount of the
Notes or any Class of Notes Outstanding, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has
received instructions to such effect from Note Owners and/or Clearing
Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes or such
Class of Notes and has delivered such instructions to the Indenture
Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.13 Definitive Notes. If (i) the Issuer, the Administrator
or the Servicer advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry Notes and the Indenture Trustee or the
Administrator is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or an Event of Servicing
Termination, Note Owners of the Book-Entry Notes representing beneficial
interests aggregating not less than 51% of the principal amount of such Notes
advise the Indenture Trustee and the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of such Note Owners, then the Clearing Agency shall
notify all Note Owners and the Indenture Trustee of the occurrence of such
event and of the availability of Definitive Notes to Note Owners requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Any portion of a Book-Entry Note transferred or exchanged pursuant to this
Section 2.13 shall be executed, authenticated and delivered only in the
minimum denominations and integral multiples set forth in Section 2.2(d). Upon
the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
Section 2.14 Authenticating Agents. The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in
connection with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5
and 2.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the authentication
of Notes by an Authenticating Agent pursuant to this Section 2.14 shall be
deemed to be the authentication of Notes "by the Indenture Trustee."
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Owner Trustee. The
Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Owner
Trustee.
The Administrator agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services. The provisions of
Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III - COVENANTS
Section 3.1 Payment Covenant. The Issuer shall duly and punctually
pay the principal of and interest on, if any, the Notes in accordance with the
terms of the Notes and this Indenture. Amounts properly withheld under the
Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of any such office or
agency. If, at any time, the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. (a) As provided
in Section 8.2, all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account,
the Pre-Funding Account, the Reserve Account, the Negative Carry 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 Pre-Funding Account, the
Reserve Account, the Negative Carry 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 years after such amount has become due and payable shall be discharged
from such trust and be paid to the Issuer on Issuer Request; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at
the expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States
of America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute (or, in the case of financing statements, authorize) and deliver
all such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee 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 D.
(b) On or before March 31, in each calendar year, beginning in 2003,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the authorization and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and the
authorization and filing of any financing statements and continuation
statements that shall, in the opinion of such counsel, be required to maintain
the lien and security interest of this Indenture until 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
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 2003), an Officer's Certificate stating, as to the
Responsible Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year (or such shorter period, with respect to the first such
Officer's Certificate) and of its performance under this Indenture
has been made under such Responsible Officer's supervision; and
(ii) to the best of such Responsible Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year (or such shorter
period, with respect to the first such Officer's Certificate), or, if
there has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Responsible
Officer and the nature and status thereof.
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition
of Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer
or otherwise dispose of any material portion of the properties and assets
included in the Trust Estate to any Person.
Section 3.11 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables
in the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.13 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture and the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
Section 3.15 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.16 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Owner Trustee 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, 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, (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(a)), as
the case may be;
(2) the Issuer has paid or caused to be paid all other
sums payable by the Issuer hereunder and under the
other Basic Documents;
(3) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an
Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements
of Section 11.1(a) and, subject to Section 11.2, each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture have been complied with;
(4) the Issuer has delivered to the Indenture Trustee
an Opinion of Counsel to the effect that the
satisfaction and discharge of the Notes pursuant to
this Section 4.1 will not cause any Noteholder to be
treated as having sold or exchanged any of its Notes
for purposes of Section 1001 of the Code; and
(5) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate stating that the satisfaction
and discharge of this Indenture (i) is not inconsistent
with the derecognition by MMCA of the Receivables under
GAAP and (ii) will not cause the Issuer to become part
of MMCA's consolidated group under GAAP.
(b) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.2 Satisfaction and Discharge of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection (b)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Notes Outstanding, and the provisions of this
Indenture, as it relates to such Notes, shall no longer be in effect (and the
Indenture Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from the
trust funds described in subsection (b)(i) hereof, payment of the
principal of and interest on the Notes Outstanding at maturity of
such principal or interest;
(ii) the obligations of the Issuer with respect to the Notes
under Sections 2.5, 2.6, 3.2 and 3.3;
(iii) the obligations of the Issuer to the Indenture Trustee
under Section 6.7; and
(iv) the rights, powers, trusts and immunities of the
Indenture Trustee hereunder and the duties of the Indenture Trustee
hereunder.
(b) The satisfaction and discharge of the Notes pursuant to
subsection (a) of this Section 4.2 is subject to the satisfaction of all of
the following conditions:
(i) the Issuer has deposited or caused to be deposited
irrevocably (except as provided in Section 4.4) with the Indenture
Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Notes, which, through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not
later than one day prior to the due date of any payment referred to
below, money in an amount sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Indenture
Trustee, to pay and discharge the entire indebtedness on the Notes
Outstanding, for principal thereof and interest thereon to the date
of such deposit (in the case of Notes that have become due and
payable) or to the maturity of such principal and interest, as the
case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute an event of default under, any other agreement or
instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or on the
91st day after such date;
(iv) the Issuer has delivered to the Indenture Trustee an
Opinion of Counsel to the effect that the satisfaction and discharge
of the Notes pursuant to this Section 4.2 will not cause any
Noteholder to be treated as having sold or exchanged any of its Notes
for purposes of Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the satisfaction and discharge
of the Notes contemplated by this Section 4.2 have been complied
with.
(c) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment
or redemption of which such monies have been deposited with the Indenture
Trustee, of all sums due and to become due thereon for principal and interest,
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. Subject to the
preceding sentence, the Indenture Trustee may resign at any time by so
notifying the Issuer. The Holders of a majority in principal amount of the
Notes Outstanding, voting as a group, may remove the Indenture Trustee without
cause by so notifying the Indenture Trustee and the Issuer and the Issuer may
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer. 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.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee shall not be authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time remove or accept
the resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee or its parent shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report
of condition and shall have a long-term debt rating of investment grade by
each of the Rating Agencies or shall otherwise be acceptable to each of the
Rating Agencies. The Indenture Trustee shall comply with TIA Section 310(b).
(b) Within 90 days after ascertaining the occurrence of an Event of
Default which shall not have been cured or waived, unless authorized by the
Commission, the Indenture Trustee shall resign with respect to the Class A
Notes, the Class B Notes and/or the Class C Notes in accordance with Section
6.8 of this Indenture, and the Issuer shall appoint a successor Indenture
Trustee for one or both of such Classes, as applicable, so that there will be
separate Indenture Trustees for the Class A Notes, the Class B Notes and the
Class C Notes. In the event the Indenture Trustee fails to comply with the
terms of the preceding sentence, the Indenture Trustee shall comply with
clauses (ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section 6.11 of a
successor Indenture Trustee with respect to any Class of Notes, the Issuer,
the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of each Class as to which the retiring
Indenture Trustee is not retiring shall continue to be vested in the Indenture
Trustee and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.
The Indenture Trustee shall use its best efforts to maintain the effectiveness
of all licenses required under the Pennsylvania Motor Vehicle Sales Finance
Act in connection with this Indenture and the transactions contemplated hereby
until the lien and security interest of this Indenture shall no longer be in
effect in accordance with the terms hereof.
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee (a) not more than five days after each Record Date, a list,
in such form as the Indenture Trustee may reasonably require, of the names and
addresses of the Holders of Notes as of such Record Date and (b) at such other
times as the Indenture Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request, a list of similar form and content
as of a date not more than 10 days prior to the time such list is furnished;
provided, however, that so long as (i) the Indenture Trustee is the Note
Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list shall
be required to be furnished.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to
time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions
and covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.3(a) and by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a) If
required by TIA Section 313(a), within 60 days after each March 31, beginning
with March 31, 2003, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The Indenture Trustee also shall comply with
TIA Section 313(b).
(b) A copy of each report at the time of its mailing to Noteholders
shall be filed by the Indenture Trustee with the Commission and each stock
exchange, if any, on which the Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture and the
Sale and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
Section 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, (i) for the benefit of the Noteholders and the
Certificateholders, each of the Trust Accounts other than the Negative Carry
Account and 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 Negative Carry Account and the Note Payment Account as
provided in Sections 4.1(d) and 4.1(e) of the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in the
Collection Account all amounts required to be deposited therein with respect
to the related Collection Period as provided in Sections 4.2 and 4.4 of the
Sale and Servicing Agreement. On or before each Payment Date, all amounts
required to be deposited in the Note Payment Account with respect to the
related Collection Period pursuant to Sections 4.6 and 4.7 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the
Collection Account and/or the Reserve Account and deposited to the Note
Payment Account for payment to Noteholders in accordance with Section 2.8 on
such Payment Date.
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 Pre-Funding Account, the
Payahead Account, the Reserve Account, the Negative Carry 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 Pre-Funding Account, the Payahead Account, the
Reserve Account, the Negative Carry 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 Pre-Funding Account, the Reserve Account, the
Negative Carry Account and the Yield Supplement Account) as provided in
Sections 4.1, 4.7, 4.11, 4.12 and 5.1 of the Sale and Servicing Agreement. The
Servicer shall not direct the Indenture Trustee to make any investment of any
funds or to sell any investment held in any of the Trust Accounts unless the
security interest Granted and perfected in such account will continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any
direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Issuer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such
effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Permitted Investment included therein, except
for losses attributable to the Indenture Trustee's failure to make payments on
such Permitted Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Servicer shall have failed to give investment
directions to the Indenture Trustee by 11:00 a.m., New York Time (or such
other time as may be agreed by the Issuer and Indenture Trustee), on the
Business Day preceding each Payment Date for any funds on deposit in the
Collection Account, the Pre-Funding Account, the Payahead Account, the Reserve
Account, the Negative Carry 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, (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. (a) 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(a), 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.
(b) In the event that on or prior to the Payment Date on which the
Pre-Funding Period ends (or, if the Pre-Funding Period does not end on a
Payment Date, the immediately succeeding Payment Date) the Remaining
Pre-Funded Amount has been withdrawn from the Pre-Funding Account and
deposited to the Collection Account by the Indenture Trustee at the direction
of the Servicer pursuant to Section 4.11(b) of the Sale and Servicing
Agreement, the Remaining Pre-Funded Amount shall be treated as a part of the
Available Funds and the Principal Distribution Amount for such Payment Date.
Section 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1(a) 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(a), but
not later than 10 days prior to the applicable Redemption Date, to each Holder
of Notes as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Holder's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer; provided, that in the
case of a redemption pursuant to Section 10.1(b) or Section 10.1(c), no notice
shall be required to be given to Noteholders. 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(a)), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued interest
is calculated for purposes of calculating the Redemption Price.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(D) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the property or securities to be so deposited and of
all other such property or securities made the basis of any such
withdrawal or release since the commencement of the then-current
fiscal year of the Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is 10% or more of
the principal amount of the Notes Outstanding, but such a certificate
need not be furnished with respect to any property or securities so
deposited, if the fair value thereof to the Issuer as set forth in
the related Officer's Certificate is less than $25,000 or less than
1% of the principal amount of the Notes Outstanding.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee
an Independent Certificate as to the same matters if the fair value
of the property or securities and of all other property, other than
property as contemplated by clause (v) below or securities released
from the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates required
by clause (iii) above and this clause (iv), equals 10% or more of the
principal amount of the Notes Outstanding, but such certificate need
not be furnished in the case of any release of property or securities
if the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than 1% of the principal
amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions of
this Section 11.1, the Issuer may, without compliance with the
requirements of the other provisions of this Section 11.1, (A)
collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles as and to the extent permitted or required by the
Basic Documents and (B) make cash payments out of the Trust Accounts
as and to the extent permitted or required by the Basic Documents.
Section 11.2 Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of a Responsible Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is
in the possession of the Servicer, the Seller, the Administrator or the
Issuer, unless such Responsible Officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, comments, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
Section 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied herein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall
be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to:
MMCA Auto Owner Trust 2002-4,
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, 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
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of S&P, at the following address:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇'▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of Fitch Ratings, at the following address:
Fitch Ratings
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 2002-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ F. F. Galarraga
-----------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Trust Officer
Schedule A
Schedule of Receivables provided to Indenture Trustee
on Computer Tape, Compact Disk or Microfiche
Schedule I
----------
List of Permitted Investments
-----------------------------
Account(s) Permitted Investments
Collection Account Federated Government Obligations Fund
Negative Carry Account Federated Government Obligations Fund
Payahead Account Federated Government Obligations Fund
Pre-Funding Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
Exhibit A-1
-----------
[Form of Class A-1 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $66,300,000
No. R-1 CUSIP NO. 553083 CX 2
MMCA AUTO OWNER TRUST 2002-4
1.76375% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of SIXTY SIX MILLION THREE HUNDRED
THOUSAND DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class A-1
Notes pursuant to Section 2.8 of the Indenture, dated as of October 1, 2002
(as amended, supplemented or otherwise modified and in effect from time to
time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the October 2003 Payment Date (the "Class A-1 Stated
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a pro
rata share of funds remaining in the Pre-Funding Account upon the termination
of the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the previous Payment Date (or, in the
case of the initial Payment Date, or if no interest has been paid, from and
including the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of the actual number of days elapsed and a 360-day
year. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: __________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-1 Asset Backed Notes, which, together with
the Class A-2 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-1 Notes are equal
in right of payment to the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 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(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-1 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. 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 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-1 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-1
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ___________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar.
Exhibit A-2
-----------
[Form of Class A-2 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $230,000,000
No. R-1 CUSIP NO. 553083 CY 0
MMCA AUTO OWNER TRUST 2002-4
1.92% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of TWO HUNDRED THIRTY 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 October 1, 2002 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the October 2005 Payment Date (the "Class A-2 Stated Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a pro
rata share of funds remaining in the Pre-Funding Account upon the termination
of the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to the 14th of the month of such Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: __________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-2 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-2 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-3 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 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(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-2 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. 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 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-2 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-2
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit A-3
-----------
[Form of Class A-3 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $200,000,000
No. R-1 CUSIP NO. 553083 CZ 7
MMCA AUTO OWNER TRUST 2002-4
2.55% CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of TWO HUNDRED 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 October 1, 2002 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the February 2007 Payment Date (the "Class A-3 Stated Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a pro
rata share of funds remaining in the Pre-Funding Account upon the termination
of the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to the 14th of the month of such Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under
The Trust Agreement
By: __________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-3 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class
A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-3 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-4 Notes, senior in right of payment to the Class B Notes and the Class C
Notes.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 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(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-3 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. 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 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-3 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-3
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit A-4
-----------
[Form of Class A-4 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $173,500,000
No. R-1 CUSIP NO. 553083 DA 1
MMCA AUTO OWNER TRUST 2002-4
3.05% CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of ONE HUNDRED SEVENTY THREE MILLION
FIVE 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
October 1, 2002 (as amended, supplemented or otherwise modified and in effect
from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the November 2009 Payment Date (the
"Class A-4 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. In addition, the unpaid principal amount of
this Note may be redeemed pursuant to Section 10.1(b) of the Indenture to the
extent of a pro rata share of funds remaining in the Pre-Funding Account upon
the termination of the Pre-Funding Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to the 14th of the month of such Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-4 Asset Backed Notes, which, together with
the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class
A-3 Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-4 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, senior in right of payment to the Class B Notes and the Class C
Notes.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing on November 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(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-4 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. 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 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-4 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-4
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit B
---------
[Form of Class B Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $65,298,000
No. R-1 CUSIP NO. 553083 DB 9
MMCA AUTO OWNER TRUST 2002-4
3.82% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of SIXTY FIVE MILLION TWO HUNDRED NINETY
EIGHT 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 October 1,
2002 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the November 2009 Payment Date (the "Class B Stated
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a pro
rata share of funds remaining in the Pre-Funding Account upon the termination
of the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to the 14th of the month of such Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: ________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except
as otherwise set forth in the Indenture, the Class B Notes are subordinated in
right of payment to the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class C
Notes.
Principal of the Class B Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 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(a) of the
Indenture. In addition, the unpaid principal amount of this Class B Note may
be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a
pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. 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 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class B Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class B Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class B
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit C
---------
[Form of Class C Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $35,808,000
No. R-1 CUSIP NO. 553083 DC 7
MMCA AUTO OWNER TRUST 2002-4
4.56% CLASS C ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-4, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of THIRTY FIVE MILLION EIGHT HUNDRED
EIGHT THOUSAND DOLLARS payable on each Payment Date in the aggregate amount,
if any, payable from the Note Payment Account in respect of principal on the
Class C Notes pursuant to Section 2.8 of the Indenture, dated as of October 1,
2002 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the November 2009 Payment Date (the "Class C Stated
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a pro
rata share of funds remaining in the Pre-Funding Account upon the termination
of the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the 15th of the previous month (or,
in the case of the initial Payment Date, or if no interest has been paid, from
the Closing Date) to the 14th of the month of such Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse side hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
MMCA AUTO OWNER TRUST 2002-4,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: ________________________________
Responsible Officer
Date: ________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________________
Responsible Officer
Date: ________, _____
This Class C Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class C Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except
as otherwise set forth in the Indenture, the Class C Notes are subordinated in
right of payment to the Class A-1 Notes , the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class B
Notes.
Principal of the Class C Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2002.
As described above, the entire unpaid principal amount of this Class
C Note shall be due and payable on the earlier of the Class C Stated Maturity
Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. In addition, the unpaid principal amount of this Class C Note may
be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a
pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of all the Notes Outstanding of all Classes, voting as a group, have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class C Notes
shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class C Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class C Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class C Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class C Notes
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class C Note be submitted for notation
of payment. Any reduction in the principal amount of this Class C Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment
Date shall be binding upon all future Holders of this Class C Note and of any
Class C Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class C Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile prior
to such Payment Date, and the amount then due and payable shall be payable
only upon presentation and surrender of this Class C Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class C Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class C Note may be registered on the Note
Register upon surrender of this Class C Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class C Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Class C Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED
CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE
SELLER.
The Issuer has entered into the Indenture and this Class C Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Class C Note, the Issuer, the Indenture Trustee and any agent of the Issuer or
the Indenture Trustee may treat the Person in whose name this Class C Note (as
of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Class C Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group. The Indenture
also contains provisions permitting the Holders of Notes representing
specified percentages of the Class A Notes Outstanding, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class C
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class C Note and of any
Class C Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof whether or not notation of such consent or waiver is
made upon this Class C Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class C Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class C Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class C
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
Exhibit D
---------
[Form of Opinion of Counsel Pursuant to Section 3.6(a)]
[See Tab 50]
Annex A
-------
[Form of Retail Installment Sale Contract]
Appendix A
----------
DEFINITIONS AND USAGE
Usage
-----
The following rules of construction and usage shall be applicable to
any agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto
unless otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby and
in any certificate or other document made or delivered pursuant
thereto, accounting terms not defined in this Appendix or in any
such agreement, instrument, certificate or other document, and
accounting terms partly defined in this Appendix or in any such
agreement, instrument, certificate or other document, to the extent
not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date of
such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement,
instrument, certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting
principles, the definitions contained in this Appendix or in any
such instrument, certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in an agreement or instrument refer to such
agreement or instrument as a whole and not to any particular
provision or subdivision thereof; references in an agreement or
instrument to "Article," "Section" or another subdivision or to an
attachment are, unless the context otherwise requires, to an
article, section or subdivision of or an attachment to such
agreement or instrument; the word "or" is not exclusive; and the
term "including" means "including without limitation."
(d) The definitions contained in this Appendix are equally applicable to
both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such
terms.
(e) Any agreement, instrument or statute defined or referred to below or
in any agreement or instrument that is governed by this Appendix
means such agreement or instrument or statute as from time to time
amended, modified or supplemented, including (in the case of
agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and
includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and
assigns.
Definitions
-----------
"Accrued Note Interest" shall mean, with respect to any Payment Date
and each Class of Notes, the sum of the Monthly Accrued Note Interest and the
Interest Carryover Shortfall for such Class for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Actuarial Advance" shall mean, with respect to an Actuarial
Receivable, the amount, as of the last day of a Collection Period, which is
required to be advanced with respect to such Actuarial Receivable by the
Servicer pursuant to Section 4.4(a) of the Sale and Servicing Agreement.
"Actuarial Method" shall mean the method of allocating a fixed level
payment on a Receivable between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is the product of
one-twelfth (1/12) of the APR of the Receivable multiplied by the scheduled
principal balance of the Receivable, and the remainder of such payment is
allocable to principal.
"Actuarial Receivable" shall mean any Receivable under which the
portion of a payment with respect thereto allocable to interest and the
portion of a payment with respect thereto allocable to principal is determined
in accordance with the Actuarial Method.
"Adjusted Pool Balance" shall mean, as of any date of determination,
an amount equal to the sum of (i) the aggregate Adjusted Principal Balance
(including the aggregate Adjusted Principal Balance of Last Scheduled
Payments) of the Receivables as of the Initial Cutoff Date plus (ii) the
aggregate Adjusted Principal Balance (including the aggregate Adjusted
Principal Balance of Last Scheduled Payments) of all Subsequent Receivables
transferred to the Trust on or prior to such date as of their respective
Subsequent Cutoff Dates.
"Adjusted Principal Balance" shall mean, with respect to any
Receivable as of any date of determination, the Principal Balance of such
Receivable minus the Yield Supplement Overcollateralization Amount for such
Receivable, as of such date.
"Administration Agreement" shall mean the Administration Agreement,
dated as of October 1, 2002, by and among the Administrator, the Issuer and
the Indenture Trustee, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of America, Inc.,
a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Advance" shall mean an Actuarial Advance or a Last Scheduled Payment
Advance, as the context may require.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person shall mean the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Amount Financed" shall mean, with respect to a Receivable, the
aggregate amount advanced under such Receivable toward the purchase price of
the Financed Vehicle and any related costs.
"Applicable Tax State" shall mean, as of any date of determination,
each state as to which any of the following is then applicable: (a) a state in
which the Owner Trustee maintains the Corporate Trust Office, (b) a state in
which the Owner Trustee maintains its principal executive offices and (c) a
state in which the Servicer regularly conducts servicing and collection
operations other than purely ministerial activities and which relate to a
material portion of the Receivables.
"APR" of a Receivable shall mean the annual percentage rate of
interest stated in the Contract related to such Receivable.
"Assignment" shall mean the First-Tier Initial Assignment or any
First-Tier Subsequent Assignment, as the context may require.
"Authenticating Agent" shall have the meaning specified in Section
2.14 of the Indenture.
"Available Funds" shall mean, for any Payment Date, an amount equal
to (a) the sum of the following amounts with respect to the related Collection
Period: (i) all collections on Receivables, including Payaheads withdrawn from
the Payahead Account (but excluding Payaheads deposited into the Payahead
Account), (ii) the proceeds of sale by the Trust of any Financed Vehicle sold
to the Trust upon termination, including a prepayment, of a Final Payment
Receivable, (iii) all Liquidation Proceeds on Defaulted Receivables and any
Recoveries, (iv) all extension and deferral fees paid with respect to the
Receivables, (v) the Purchase Amount of each Receivable that became a
Purchased Receivable during the related Collection Period (net of applicable
expenses), (vi) all Actuarial Advances and Last Scheduled Payment Advances
deposited to the Collection Account on such Payment Date by the Servicer,
(vii) amounts paid pursuant to the Yield Supplement Agreement (including
amounts, if any, withdrawn from the Yield Supplement Account or the Reserve
Account pursuant to Section 5.1(a) of the Sale and Servicing Agreement) with
respect to the related Collection Period, (x) the Negative Carry Amount for
such Payment Date, (viii) partial prepayments attributable to any refunded
item included in the Amount Financed, such as extended warranty protection
plan costs or physical damage, credit life or disability insurance premiums,
or any partial prepayment which causes a reduction in the Obligor's periodic
payment to be below the Scheduled Payment as of the related Cutoff Date, (ix)
the Pre-Funding Account Investment Earnings, if any, for the related
Collection Period and (x) the Remaining Pre-Funded Amount, minus (b) the
aggregate amount of funds described in clause (a) above that are used in the
related Collection Period to reimburse the Servicer for the aggregate amount
of Advances previously made by the Servicer that are due and payable to the
Servicer on such Payment Date; provided, however, that in calculating the
Available Funds, all payments and proceeds (including Liquidation Proceeds) of
any Purchased Receivables the Purchase Amount of which has been included in
the Available Funds in a prior Collection Period (which shall be paid to MART
II or the Servicer, as applicable) will be excluded.
"Balloon Payment" means, as to a Balloon Payment Receivable, the
final payment which is due at the end of the term of the receivable.
"Balloon Payment Receivable" shall mean all rights and obligations
arising under a Contract listed on the Schedule of Receivables which provides
for equal monthly installments and one substantially larger final balloon
payment. At maturity of the Balloon Payment Receivable, the Obligor may either
(i) pay the remaining Principal Balance of the Receivable, all accrued and
unpaid interest, plus any fees, charges, and other amounts then owing or (ii)
refinance the amount then due, subject to certain conditions, and satisfy all
other conditions stated under the terms of the Contract. For avoidance of
doubt, the Obligor on a Balloon Payment Receivable may not satisfy its
obligation to pay the Balloon Payment at maturity of the Balloon Payment
Receivable by returning the Financed Vehicle to MMCA.
"Basic Documents" shall mean the Indenture, the Certificate of Trust,
the Trust Agreement, the Assignments, the Sale and Servicing Agreement, the
Purchase Agreement, the Administration Agreement, the Note Depository
Agreement, the Yield Supplement Agreement, the Control Agreement and other
documents and certificates delivered in connection therewith as the same may
from time to time be amended, supplemented or otherwise modified and in
effect.
"Book-Entry Notes" shall mean a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11 of the Indenture.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions or trust companies in New York, New York,
Wilmington, Delaware or Los Angeles, California are authorized or obligated by
law, regulation or executive order to be closed.
"Capped Receivable" shall mean a Simple Interest Receivable that is
subject to a cap on the aggregate amount of interest to be paid by the related
Obligor during the term of such Receivable.
"Certificate" shall mean a physical certificate evidencing the
beneficial interest of a Certificateholder in the property of the Trust,
substantially in the form of Exhibit A to the Trust Agreement. Such
certificate shall entitle the Holder thereof to distributions pursuant to the
Trust Agreement from collections and other proceeds in respect of the Owner
Trust Estate; provided, however, that the Owner Trust Estate has been pledged
to the Indenture Trustee to secure payment of the Notes and that the rights of
Certificateholders to receive distributions on the Certificates are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
"Certificate Balance" shall mean, as the context may require, (i)
with respect to all of the Certificates, an amount equal to, initially, the
Initial Certificate Balance and, thereafter, an amount equal to the Initial
Certificate Balance, as reduced from time to time by all amounts allocable to
principal previously distributed to Certificateholders or (ii) with respect to
any Certificate, an amount equal to, initially, the initial denomination of
such Certificate and, thereafter, an amount equal to such initial
denomination, as reduced from time to time by all amounts allocable to
principal previously distributed in respect of such Certificate; provided,
that in determining whether the Holders of the requisite portion or percentage
of the Certificate Balance of all of the Certificates have given any request,
demand, authorization, direction, notice, consent, or waiver hereunder or
under any other Basic Document, Certificates owned by the Trust, any other
obligor upon the Certificates, MART II, the Servicer or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed to be excluded from
the Certificate Balance (unless such Persons own 100% of the Certificate
Balance of the Certificates); provided, further, that where such Persons own
100% of the Certificate Balance of the Certificates, any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document is deemed to have been given by the Holders of the
Certificates if also given by the Holders of the Notes, except that, in
determining whether the Indenture Trustee and Owner Trustee shall be protected
in relying on any such request, demand, authorization, direction, notice,
consent, or waiver, only Certificates that a Responsible Officer of the
Indenture Trustee, if applicable, and a Responsible Officer of the Owner
Trustee with direct responsibility for the administration of the Trust
Agreement, if applicable, knows to be so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded as
included in the Certificate Balance if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trustee, as applicable, the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Trust, any other obligor upon the Certificates, MART II,
the Servicer or any Affiliate of any of the foregoing Persons. "Certificate
Distribution Account" shall have the meaning assigned to such term in Section
4.1(f) of the Sale and Servicing Agreement.
"Certificate of Trust" shall mean (i) with respect to the Trust, the
Certificate of Trust in the form of Exhibit B to the Trust Agreement filed for
the Trust pursuant to Section 3810(a) of the Statutory Trust Statute and (ii)
with respect to the Issuer, the certificate of trust of the Issuer
substantially in the form of Exhibit C to the Trust Agreement.
"Certificate Pool Factor" shall mean, as of the close of business on
the last day of a Collection Period, a seven-digit decimal figure equal to the
Certificate Balance (after giving effect to any reductions therein to be made
on the immediately following Payment Date) divided by the Initial Certificate
Balance. The Certificate Pool Factor will be 1.0000000 as of the Closing Date;
thereafter, the Certificate Pool Factor will decline to reflect reductions in
the Certificate Balance.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4 of the
Trust Agreement.
"Certificateholder" shall mean a Person in whose name a Certificate
is registered in the Certificate Register.
"Class A Noteholder" shall mean the Person in whose name a Class A
Note is registered in the Note Register.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Percentage" shall mean approximately 85.65%, calculated as
the percentage equivalent of a fraction the numerator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, and the denominator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes;
provided, however, that in the event that after the Class A-1 Notes have been
paid in full, the amount on deposit in the Reserve Account on any Payment Date
falls to less than 1.00% of the Initial Adjusted Pool Balance and that amount
is less than the Specified Reserve Balance for that Payment Date, the Class A
Percentage shall be 100% until the Class A Notes have been paid in full.
"Class A-1 Noteholder" shall mean the Person in whose name a Class
A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $66,300,000 aggregate initial
principal amount of 1.76375% Class A-1 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-1 thereto.
"Class A-1 Rate" shall mean 1.76375% per annum.
"Class A-1 Stated Maturity Date" shall mean the October 2003 Payment
Date.
"Class A-2 Noteholder" shall mean the Person in whose name a Class
A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $230,000,000 aggregate initial
principal amount of 1.92% Class A-2 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-2 thereto.
"Class A-2 Rate" shall mean 1.92% per annum.
"Class A-2 Stated Maturity Date" shall mean the October 2005 Payment
Date.
"Class A-3 Noteholder" shall mean the Person in whose name a Class
A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $200,000,000 aggregate initial
principal amount of 2.55% Class A-3 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-3 thereto.
"Class A-3 Rate" shall mean 2.55% per annum.
"Class A-3 Stated Maturity Date" shall mean the February 2007 Payment
Date.
"Class A-4 Noteholder" shall mean the Person in whose name a Class
A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $173,500,000 aggregate initial
principal amount of 3.05% Class A-4 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-4 thereto.
"Class A-4 Rate" shall mean 3.05% per annum.
"Class A-4 Stated Maturity Date" shall mean the November 2009 Payment
Date.
"Class B Noteholder" shall mean the Person in whose name a Class B
Note is registered on the Note Register.
"Class B Notes" shall mean the $65,298,000 aggregate initial
principal amount of 3.82% Class B Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit B thereto.
"Class B Percentage" shall mean approximately 9.27%, calculated as
the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class B Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes; provided, however, that in the event that
after the Class A-1 Notes have been paid in full, the amount on deposit in the
Reserve Account on any Payment Date falls to less than 1.00% of the Initial
Adjusted Pool Balance and that amount is less than the Specified Reserve
Balance for that Payment Date, the Class B Percentage shall be (i) 0% until
the Class A Notes have been paid in full and (ii) 100% after the Class A Notes
have been paid in full.
"Class B Rate" shall mean 3.82% per annum.
"Class B Stated Maturity Date" shall mean the November 2009 Payment
Date.
"Class C Noteholder" shall mean the Person in whose name a Class C
Note is registered on the Note Register.
"Class C Notes" shall mean the $35,808,000 aggregate initial
principal amount of 4.56% Class C Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit C thereto.
"Class C Percentage" shall mean approximately 5.08%, calculated as
the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class C Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes; provided, however, that in the event that
after the Class A-1 Notes have been paid in full, the amount on deposit in the
Reserve Account on any Payment Date falls to less than 1.00% of the Initial
Adjusted Pool Balance and that amount is less than the Specified Reserve
Balance for that Payment Date, the Class C Percentage shall be (i) 0% until
the Class B Notes have been paid in full and (ii) 100% after the Class B Notes
have been paid in full.
"Class C Rate" shall mean 4.56% per annum.
"Class C Stated Maturity Date" shall mean the November 2009 Payment
Date.
"Class" shall mean a class of Notes, which may be the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes or the Class C Notes.
"Clearing Agency Participant" shall mean a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing" shall have the meaning specified in Section 2.3 of the
Purchase Agreement.
"Closing Date" shall mean October 16, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations, including proposed or temporary
regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause
of the Indenture.
"Collection Account" shall mean the account or accounts established
and maintained as such pursuant to Section 4.1(a) of the Sale and Servicing
Agreement.
"Collection Period" shall mean each calendar month during the term of
the Sale and Servicing Agreement or, in the case of the initial Collection
Period, the period from the Initial Cutoff Date to October 31, 2002. As used
herein, the Collection Period "related to" a Payment Date or "preceding" a
Payment Date refers to the Collection Period that ends on the last day of the
calendar month preceding the calendar month in which such Payment Date occurs.
"Commission" shall mean the Securities and Exchange Commission.
"Computer Tape" shall mean each computer tape or compact disk
generated by MART II which provides information relating to the Receivables
and which was used by MART II in selecting the Receivables conveyed to the
Trust hereunder on the Closing Date or any Subsequent Transfer Date.
"Contract" shall mean a motor vehicle retail installment sale
contract, including a retail installment contract relating to the sale of an
automobile or a sports-utility vehicle for commercial use.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of October 1, 2002, by and among MART II, the Issuer, the
Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust Company in
its capacity as a securities intermediary, as the same may from time to time
be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean (i) with respect to the Owner
Trustee, the principal office of the Owner Trustee at which at any particular
time its corporate trust business shall be administered, which office at the
date of the execution of this Agreement is located at ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration or at such other address as the Owner Trustee
may designate from time to time by notice to the Certificateholders, the
Indenture Trustee and MART II, or the principal corporate trust office of any
successor Owner Trustee (of which address such successor Owner Trustee will
notify the Certificateholders, the Indenture Trustee and MART II) and (ii)
with respect to the Indenture Trustee, the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Department, or at such other address as the
Indenture Trustee may designate from time to time by notice to the
Noteholders, the Owner Trustee and MART II, or the principal corporate trust
office of any successor Indenture Trustee (of which address such successor
Indenture Trustee will notify the Noteholders, the Owner Trustee and MART II).
"Cutoff Date" shall mean the Initial Cutoff Date or any Subsequent
Cutoff Date, as the context may require.
"Dealer" shall mean, with respect to any Receivable, the seller of
the related Financed Vehicle who originated and assigned the Receivable
relating to such Financed Vehicle to MMCA under a Dealer Agreement.
"Dealer Agreement" shall mean an agreement between MMCA and a Dealer
relating to the assignment of Receivables to MMCA and all documents and
instruments relating thereto, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Default" shall mean any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable (other than a
Purchased Receivable) as to which (i) the related Financed Vehicle has been
repossessed and liquidated, (ii) more than 10% of a Scheduled Payment
(including, in the case of a Final Payment Receivable, the amount owed by an
Obligor with respect to a Last Scheduled Payment but excluding in each case
any Excess Wear and Tear or Excess Mileage) is 120 or more days past due and
the Servicer has not repossessed the related Financed Vehicle or (iii) the
Servicer has determined, in accordance with its customary servicing standards,
policies and procedures, that eventual payment in full (including, in the case
of a Final Payment Receivable, the amount owed by an Obligor with respect to a
Last Scheduled Payment but excluding in each case any Excess Wear and Tear or
Excess Mileage) on the Receivable is unlikely and the Servicer has either (x)
repossessed and liquidated the related Financed Vehicle or (y) repossessed and
held the related Financed Vehicle in its repossession inventory for more than
90 days, which 90 days shall not be more than 180 days after the date on which
a Scheduled Payment was due but not paid.
"Deferred Balloon Payment Receivable" shall mean any Deferred Payment
Receivable for which no Scheduled Payment is due for either 90 or 180 days
from the date of the Contract and which provides for a Balloon Payment.
"Deferred Payment Receivable" shall mean any Receivable which is not
a Deferred Balloon Payment Receivable for which the related Contract specifies
that no Scheduled Payment under such Contract shall be due until a date more
than 50 days but less than 450 days from the date of inception of the such
Contract. A Receivable shall cease to be a Deferred Payment Receivable
commencing on the last day of the Collection Period preceding the Collection
Period in which the first Scheduled Payment is due under the related Contract.
"Definitive Notes" shall have the meaning specified in Section 2.11
of the Indenture.
"Depositor" shall mean MART II, in its capacity as Depositor under
the Trust Agreement.
"Determination Date" shall mean, with respect to any Collection
Period, the seventh Business Day of the next succeeding calendar month (but
not later than the 10th calendar day of such month).
"Eligible Receivable" shall mean each Initial Receivable and each
Subsequent Receivable as to which the representations and warranties of (i)
MMCA, in Section 3.2 of the Purchase Agreement, and (ii) MART II, in Section
2.2 of the Sale and Servicing Agreement, shall be true and correct in all
material respects as of the Closing Date and as of each Subsequent Transfer
Date, respectively.
"Eligible Servicer" shall mean a Person which, at the time of its
appointment as Servicer or as a subservicer, (i) has a net worth of not less
than $50,000,000, (ii) is servicing a portfolio of motor vehicle retail
installment sale contracts and/or motor vehicle loans, (iii) is legally
qualified, and has the capacity, to service the Receivables, (iv) has
demonstrated the ability professionally and competently to service a portfolio
of motor vehicle retail installment sale contracts and/or motor vehicle loans
similar to the Receivables in accordance with standards of skill and care that
are consistent with prudent industry standards, and (v) is qualified and
entitled to use pursuant to a license or other written agreement, and agrees
to maintain the confidentiality of, the software which the Servicer or any
subservicer uses in connection with performing its duties and responsibilities
under the Sale and Servicing Agreement or the related subservicing agreement
or obtains rights to use, or develops at its own expense, software which is
adequate to perform its duties and responsibilities under the Sale and
Servicing Agreement or the related subservicing agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of
the Indenture.
"Event of Servicing Termination" shall mean an event specified in
Section 8.1 of the Sale and Servicing Agreement.
"Excess Mileage" shall mean, with respect to any Financed Vehicle
securing a Final Payment Receivable, the amounts payable by the related
Obligor relating to the excess of the number of miles by which such Financed
Vehicle has been driven over the number of miles such Financed Vehicle may be
driven during the term of the related Final Payment Receivable (as specified
in the Contract related to such Final Payment Receivable) without incurring an
excess mileage charge pursuant to the related Contract, net of the amount, if
any, payable to a third party collection agency as payment of its fees and
expenses in connection with collecting such amounts from the related Obligor.
"Excess Wear and Tear" shall mean, with respect to any Financed
Vehicle securing a Final Payment Receivable, all amounts payable by the
related Obligor relating to damages to such Financed Vehicle that are not the
result of normal wear and tear, as more specifically described in the Contract
related to such Final Payment Receivable, net of the amount, if any, payable
to a third party collection agency as payment of its fees and expenses in
connection with collecting such amounts from the related Obligor.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation and, with respect to any partnership, any
general partner thereof.
"Expenses" shall have the meaning assigned to such term in Section
8.2 of the Trust Agreement.
"Final Payment Receivable" shall mean all rights and obligations
arising under a Contract listed on the Schedule of Receivables which provides
for a series of scheduled payments which, if each is made on its scheduled due
date, will amortize the initial Level Pay Balance by the due date immediately
preceding the maturity date of the Receivable. At maturity of the Final
Payment Receivable, the Obligor thereunder will owe (assuming that all
payments have been made on their scheduled due dates) an amount consisting of
interest for the period from the preceding due date through the maturity date
and the remaining Principal Balance of the Receivable. At maturity of the
Final Payment Receivable, the Obligor may either (i) pay the remaining
Principal Balance of the Receivable, all accrued and unpaid interest, plus any
fees, charges, and other amounts then owing, (ii) refinance the amount then
due, subject to certain conditions or (iii) sell the Financed Vehicle to MMCA
on behalf of the Trust for an amount equal to the Sale Price, and pay any
excess of the total amount owed by the Obligor (calculated as in clause (i))
over the Sale Price, and satisfy all other conditions stated under the terms
of the Contract.
"Final Scheduled Maturity Date" shall mean, with respect to any
Receivable, October 29, 2008.
"Financed Vehicle" shall mean a new or used automobile or
sport-utility vehicle, together with all accessions thereto, securing an
Obligor's indebtedness under the respective Receivable.
"First-Tier Initial Assignment" shall mean the document of assignment
in substantially the form attached as Exhibit A-1 to the Purchase Agreement.
"First-Tier Subsequent Assignment" shall mean the document of
assignment in substantially the form attached as Exhibit A-2 to the Purchase
Agreement.
"Fitch Ratings" shall mean Fitch, Inc., doing business as Fitch
Ratings.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to ▇▇▇▇▇ ▇
▇▇▇▇ upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of the Collateral and all other monies payable thereunder, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.
"Holder" shall mean a Noteholder or a Certificateholder, as the case
may be.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of October 1, 2002,
between the Trust and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"Independent" shall mean, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, MART II and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, MART II or
any Affiliate of any of the foregoing Persons and (c) is not connected with
the Issuer, any such other obligor, MART II or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in the Indenture and that the signer
is Independent within the meaning thereof.
"Initial Certificate Balance" shall mean, as the context may require,
(i) with respect to all of the Certificates, $71,646,522.63, or (ii) with
respect to any Certificate, an amount equal to the initial denomination of
such Certificate.
"Initial Cutoff Date" shall mean September 30, 2002.
"Initial Payahead Account Deposit" shall mean $4,272.28.
"Initial Pool Balance" shall mean the aggregate Principal Balance
(including the aggregate principal balance of Last Scheduled Payments) of the
Initial Receivables as of the close of business on the Initial Cutoff Date,
which is $655,103,736.04.
"Initial Receivable" shall mean each motor vehicle retail installment
sale contract described in the Schedule of Initial Receivables, and all rights
and obligations thereunder and any amendments, modifications or supplements to
such motor vehicle retail installment sale contract.
"Initial Receivables Purchase Price" shall mean $653,516,303.28.
"Initial Weighted Average Rate" shall mean 2.386%.
"Initial Yield Supplement Amount" shall mean $23,011,579.39.
"Insolvency Event" shall mean, with respect to any Person, (i) the
making of a general assignment for the benefit of creditors, (ii) the filing
of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in (vii) below,
(vi) seeking, consenting to or acquiescing in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of the
assets of such Person or (vii) the failure to obtain dismissal within 60 days
of the commencement of any proceeding against such Person seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"Interest Accrual Period" shall mean, with respect to any Payment
Date, and with respect to the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes and the Class C Notes, the period from and
including the 15th day of the calendar month immediately preceding such
Payment Date to but excluding the 15th day of the calendar month in which such
Payment Date occurs and, with respect to the Class A-1 Notes, the period from
and including the preceding Payment Date through the day preceding the Payment
Date; provided, that if the 15th day of a month is not a Business Day, the
payment will be made on the next following Business Day; provided, further,
that for the first Payment Date, the "Interest Accrual Period" shall mean the
period from and including the Closing Date.
"Interest Carryover Shortfall" shall mean, with respect to any
Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually
deposited in the Note Payment Account on such preceding Payment Date with
respect to such Class, plus interest on such excess to the extent permitted by
law, at the applicable Note Interest Rate for the related Interest Accrual
Period.
"Issuer" shall mean the Trust, unless a successor replaces it and,
thereafter, means the successor and for purposes of any provision contained
herein and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order or
request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"Last Scheduled Payment" shall mean, with respect to each Final
Payment Receivable, the amount referred to in the Contract related to such
Final Payment Receivable as the "last scheduled payment."
"Last Scheduled Payment Advance" shall mean, with respect to a Final
Payment Receivable, the amount, as of the close of business on the last day of
a Collection Period, which is required to be advanced by the Servicer with
respect to such Final Payment Receivable pursuant to Section 4.4(b) of the
Sale and Servicing Agreement.
"Last Scheduled Payment Pool Balance" shall mean, for any Payment
Date, the aggregate principal balance of Last Scheduled Payments of Final
Payment Receivables as of the close of business on the last day of the
preceding Collection Period.
"Last Scheduled Payment Principal Collections" shall mean (a)
collections of principal on a Final Payment Receivable that are attributable
to Last Scheduled Payments, which includes any collection attributable to
principal on a Final Payment Receivable in excess of the initial Level Pay
Balance of that Receivable, whether or not such payment is made on the due
date of the related Last Scheduled Payment, and including the proceeds of sale
(net of expenses) of any Financed Vehicle purchased by MMCA on behalf of the
Trust pursuant to the terms of the Receivable and subsequently sold on behalf
of the Trust, minus (b) with respect to any Final Payment Receivable with
respect to which the Obligor exercises its right to have MMCA, on behalf of
the Trust, purchase the related Financed Vehicle, the excess of the purchase
price from the Obligor of such Financed Vehicle over the remaining amount owed
by the Obligor.
"Letter of Credit Bank" shall mean any Person having the Required
Rating that has provided a Yield Supplement Letter of Credit in accordance
with Section 5.1 of the Sale and Servicing Agreement.
"Level Pay Balance" shall mean, with respect to each Final Payment
Receivable, (i) initially the Amount Financed under such Final Payment
Receivable minus the principal portion of the Last Scheduled Payment thereon
and (ii) thereafter, shall be the amount set forth in clause (i) minus all
collections on or with respect to principal on such Receivable other than
amounts on deposit in the Payahead Account with respect to future due dates;
provided that such Level Pay Balance for any Final Payment Receivable shall
not be less than zero.
"Level Pay Pool Balance" shall mean, for any Payment Date, the sum of
(i) the aggregate Level Pay Balance of Final Payment Receivables and (ii) the
aggregate Principal Balance of the Receivables other than Final Payment
Receivables, as of the close of business on the last day of the preceding
Collection Period.
"Lien" shall mean a security interest, lien, charge, pledge, equity
or encumbrance of any kind, other than tax liens, mechanics' or materialmen's
liens, judicial liens and any liens that may attach to a Financed Vehicle by
operation of law.
"Liquidation Proceeds" shall mean, with respect to a Defaulted
Receivable, the monies collected from whatever source during the Collection
Period in which such Receivable became a Defaulted Receivable, net of the sum
of (i) any expenses incurred by the Servicer in connection with collection of
such Receivable and the disposition of the Financed Vehicle and (ii) any
amounts required by law to be remitted to the Obligor.
"London and New York Banking Day" shall mean any business day on
which dealings in deposits in United States dollars are transacted in the
London and New York interbank markets.
"Long Deferment Period Receivable" shall mean any Deferred Payment
Receivable for which the period from the inception of the Receivable to the
date on which the first Scheduled Payment is due is between 360 and 450 days.
"MART II" shall mean MMCA Auto Receivables Trust II, a Delaware
statutory trust, and its successors and assigns.
"MART II Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of July 29, 2002, between MMCA, as beneficiary, and Chase
Manhattan Bank USA, National Association, a national banking association, as
trustee, relating to MART II, as from time to time amended, supplemented or
otherwise modified and in effect.
"Maximum Negative Carry Amount" shall mean, as of any Payment Date,
the product of (i) (1) the Weighted Average Rate as of such Payment Date
multiplied by (2) the Note Percentage as of such Payment Date, minus (3)
1.25%, multiplied by (ii) the product of (x) the Remaining Pre-Funded Amount
on that Payment Date and (y) the percentage equivalent of a fraction, the
numerator of which is the actual number of days until the last day of the
Pre-Funding Period and the denominator of which is 360. The Maximum Negative
Carry Amount as of any Payment Date shall be calculated in the manner
described in the preceding sentence as an approximation of the maximum
aggregate amount of the Negative Carry Amounts for all subsequent Payment
Dates.
"Mitsubishi Motors" shall mean Mitsubishi Motors Corporation, a
Japanese corporation, and its successors and assigns, and any Affiliates
thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"MMSA" shall mean Mitsubishi Motors Sales of America, Inc., a
Delaware corporation, and its successors and assigns.
"Modified Receivable" shall have the meaning assigned thereto in
Section 3.2(a) of the Sale and Servicing Agreement.
"Monthly Accrued Note Interest" shall mean, with respect to any
Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class on
the aggregate principal balance of the Notes of such Class as of the
immediately preceding Payment Date, after giving effect to all payments of
principal to Noteholders of such Class on or prior to such preceding Payment
Date (or, in the case of the first Payment Date, the initial principal amount
of such Class of Notes); and (ii) with respect to the Notes collectively, the
sum of Monthly Accrued Note Interest for each Class.
"Monthly Remittance Condition" shall have the meaning assigned
thereto in Section 4.1(g) of the Sale and Servicing Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Negative Carry Account" shall mean the account established and
maintained pursuant to Section 4.1(d) of the Sale and Servicing Agreement.
"Negative Carry Account Initial Deposit" shall mean $823,673.68.
"Negative Carry Account Shortfall" shall mean, as of any Payment
Date, the excess, if any, of the Required Negative Carry Account Balance over
the amount on deposit in the Negative Carry Account (after giving effect to
all deposits to and withdrawals from the Negative Carry Account required to be
made on such Payment Date).
"Negative Carry Amount" shall mean, with respect to any Payment Date,
the difference (if positive) between (1) the product of (a) the Monthly
Accrued Note Interest for such Payment Date, multiplied by (b) the Pre-Funded
Percentage as of the immediately preceding Payment Date or, in the case of the
first Payment Date, the Closing Date, minus (2) the Pre-Funding Account
Investment Earnings for the related Collection Period (or, in the case of the
first Payment Date, from the Closing Date until the close of business on
October 31, 2002).
"Note Depository Agreement" shall mean the agreement, dated as of the
Closing Date, among the Issuer, the Indenture Trustee, the Administrator and
The Depository Trust Company, as the initial Clearing Agency, relating to the
Notes.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class A-2
Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate and the Class C
Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant
or as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).
"Note Payment Account" shall mean the account established and
maintained as such pursuant to Section 4.1(e) of the Sale and Servicing
Agreement.
"Note Percentage" shall mean, as of any Payment Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate principal
amount of the Notes as of such Payment Date (after giving effect to any
payments of principal on such Payment Date), and the denominator of which is
an amount equal to the sum of the aggregate principal amount of the Notes and
the Certificate Balance, in each case as of such Payment Date (after giving
effect to any payment of principal on such Payment Date).
"Note Pool Factor" shall mean, with respect to any Class of Notes, as
of the close of business on the last day of a Collection Period, a seven-digit
decimal figure equal to the outstanding principal balance of such Class of
Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. Each Note Pool Factor will be
1.0000000 as of the Closing Date; thereafter, the Note Pool Factor will
decline to reflect reductions in the outstanding principal amount of such
Class of Notes.
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a) of the Indenture.
"Noteholder" shall mean a Person in whose name a Note is registered
on the Note Register.
"Noteholders" shall mean the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders, the Class B
Noteholders and the Class C Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers
of the related Financed Vehicle purchased in part or in whole by the execution
and delivery of such Receivable, or any other Person who owes or may be liable
for payments under such Receivable.
"Officer's Certificate" shall mean (i) with respect to the Trust, a
certificate signed by any Responsible Officer of the Trust and (ii) with
respect to MART II or the Servicer, a certificate signed by the chairman, the
president, any executive vice president, vice president or the treasurer of
MART II or the Servicer, as applicable.
"Opinion of Counsel" shall mean (i) in the case of the Sale and
Servicing Agreement, a written opinion of counsel (who, in the case of counsel
to MART II or the Servicer, may be an employee of, or outside counsel to, MART
II or the Servicer), which counsel shall be acceptable to the Indenture
Trustee, the Owner Trustee or the Rating Agencies, as applicable, and (ii) in
the case of the Indenture, one or more written opinions of counsel who may,
except as otherwise expressly provided in the Indenture, be employees of or
counsel to the Issuer, MMCA or the Servicer and who shall be satisfactory to
the Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, shall comply with the applicable
requirements of Section 11.1 of the Indenture, and shall be in form and
substance satisfactory to the Indenture Trustee.
"Optional Purchase Percentage" shall mean 10%.
"Outstanding" shall mean, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes (provided, however,
that if such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a protected purchaser;
provided, that in determining whether the Holders of the requisite principal
amount of the Notes Outstanding have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, MART II, the
Servicer or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes, MART II,
the Servicer or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount of all
Notes Outstanding at the date of determination.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, its successors in interest and any
successor trustee under the Trust Agreement.
"Payahead" shall mean, with respect to an Actuarial Receivable, the
amount, as of the close of business on the last day of a Collection Period, so
designated in accordance with Section 4.3(a) of the Sale and Servicing
Agreement with respect to such Receivable.
"Payahead Account" shall mean the account established and maintained
as such pursuant to Section 4.1(g) of the Sale and Servicing Agreement.
"Payahead Balance", with respect to an Actuarial Receivable, shall
mean the sum, as of the close of business on the last day of a Collection
Period, of all Payaheads made by or on behalf of the Obligor with respect to
such Actuarial Receivable (including any amount paid by or on behalf of the
Obligor prior to the related Cutoff Date that is due on or after the related
Cutoff Date and was not used to reduce the principal balance of such Actuarial
Receivable), as reduced by applications of previous Payaheads with respect to
such Actuarial Receivable, pursuant to Sections 4.3(a) and 4.4 of the Sale and
Servicing Agreement.
"Paying Agent" shall mean (i) with respect to the Trust Agreement,
any paying agent or co-paying agent appointed pursuant to Section 3.9 thereto,
and shall initially be Wilmington Trust Company, and (ii) with respect to the
Indenture, the Indenture Trustee or any other Person that meets the
eligibility standards for the Indenture Trustee specified in Section 6.11
thereto and is authorized by the Issuer to make payments to and distributions
from the Collection Account and the Note Payment Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Payment Date" shall mean the 15th day of each month, or if any such
day is not a Business Day, the immediately following Business Day, commencing
November 15, 2002.
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided, however, that at the
time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than
such obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment category
granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each of
the Rating Agencies in the highest investment category granted thereby
(including funds for which the Indenture Trustee or the Owner Trustee or any
of their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America or
any agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company (acting as
principal) described in clause (b); and
(g) any other investment with respect to which the Trust or the
Servicer has received written notification from the Rating Agencies that the
acquisition of such investment as a Permitted Investment will not result in a
withdrawal or downgrading of the ratings on any Class of Notes or the
Certificates.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust,
unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Plan" shall mean an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Pool Balance" shall mean, as of any date of determination, the
aggregate Principal Balance of the Receivables (including the aggregate
Principal Balance of Last Scheduled Payments) as of the close of business on
the last day of the preceding Collection Period or, with respect to any date
of determination during the first Collection Period, as of the Initial Cutoff
Date, after giving effect to, with respect to such Collection Period, (i) all
payments received from Obligors (other than Payaheads), (ii) all Advances to
be made by the Servicer and (iii) all Purchase Amounts to be remitted by MART
II or the Servicer, in each case for such Collection Period, and reduced by
the aggregate Principal Balance of Receivables that became Defaulted
Receivables during such Collection Period.
"Pre-Funded Percentage" shall mean, as of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the
Remaining Pre-Funded Amount (after giving effect to any deposits to and
withdrawals from the Pre-Funding Account on or prior to such date of
determination) as of such date of determination, and the denominator of which
is the sum of (1) the Pool Balance (after giving effect to all conveyances of
Subsequent Receivables to the Trust on or prior to such date of determination)
and (2) the Remaining Pre-Funded Amount (after giving effect to any deposits
to and withdrawals from the Pre-Funding Account on or prior to such date of
determination).
"Pre-Funding Account" shall mean the account established pursuant to
Section 4.1(b) of the Sale and Servicing Agreement.
"Pre-Funding Account Investment Earnings" shall mean, with respect to
any Collection Period, the interest and other income (net of losses and
expenses) earned on amounts on deposit in the Pre-Funding Account during such
Collection Period (after giving effect to any deposits to and withdrawals from
the Pre-Funding Account during or prior to such Collection Period) and
deposited to the Pre-Funding Account on or prior to the related Payment Date.
"Pre-Funding Period" shall mean the period from and including the
Closing Date and ending on the earliest of (i) the last day of the Collection
Period on which the amount in the Pre-Funding Account (after giving effect to
any transfers of Receivables to the Trust after the Closing Date and on or
before such date) is less than $100,000, (ii) the date on which an Event of
Default or an Event of Servicing Termination occurs, (iii) the date on which
an Insolvency Event occurs with respect to MART II or the Servicer and (iv)
the close of business on February 18, 2003.
"Predecessor Note" shall mean, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any
Note authenticated and delivered under Section 2.6 of the Indenture in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean the Payment Date specified by the
Servicer pursuant to Section 9.2(a) of the Trust Agreement.
"Prepayment Price" shall mean an amount equal to the Certificate
Balance as of the applicable Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable as of
any date of determination, the Amount Financed minus the sum of the following
amounts: (i) in the case of an Actuarial Receivable, that portion of all
Scheduled Payments due on or prior to such date allocable to principal
computed in accordance with the Actuarial Method (to the extent collected or
advanced), (ii) in the case of a Simple Interest Receivable, that portion of
all Scheduled Payments actually received on or prior to such date allocable to
principal using the Simple Interest Method (to the extent collected or
advanced), (iii) any refunded portion of extended warranty protection plan
costs, or of physical damage, credit life, or disability insurance premiums
included in the Amount Financed and (iv) any prepayment in full or partial
prepayment applied to reduce the unpaid principal balance of such Receivable.
The Principal Balance of a Defaulted Receivable shall be zero as of the
beginning of the Collection Period following the Collection Period in which it
became a Defaulted Receivable.
"Principal Distribution Amount" shall mean, with respect to any
Payment Date, (i) the total Adjusted Principal Balance of the Receivables as
of the first day of the Collection Period preceding such Payment Date, plus
(ii) the Remaining Pre-Funded Amount as of the first day of the Collection
Period preceding such Payment Date, plus (iii) the Principal Shortfall Amount,
minus (iv) the total Adjusted Principal Balance of the Receivables as of the
last day of the Collection Period preceding such Payment Date, minus (v) the
Remaining Pre-Funded Amount as of the last day of the Collection Period
preceding such Payment Date; provided, however, that on the Stated Maturity
Date for each Class of Notes, the principal required to be deposited in the
Note Payment Account shall include the amount necessary (after giving effect
to the other amounts to be deposited in the Note Payment Account on such
Payment Date and allocable to principal) to reduce the outstanding principal
amount of the Notes of such Class to zero.
"Principal Shortfall Amount" shall mean, with respect to any Payment
Date, the excess of the Principal Distribution Amount for the preceding
Payment Date over the amount in respect of the Principal Distribution Amount
that is actually deposited in the Note Payment Account on such preceding
Payment Date.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Program" shall have the meaning assigned thereto in Section 3.11 of
the Sale and Servicing Agreement.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
October 1, 2002, between MART II and MMCA, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Purchase Amount" shall mean, with respect to a Payment Date and a
Receivable to be repurchased by MART II or purchased by the Servicer on such
Payment Date, an amount equal to the sum of (a) the Principal Balance of such
Receivable as of the first day of the Collection Period preceding the
Collection Period in which such Payment Date occurs and (b) an amount equal to
the amount of accrued and unpaid interest on such Principal Balance at the
related APR from the date a payment was last made by or on behalf of the
Obligor through the due date for payment of such Receivable in the Collection
Period preceding the Collection Period in which such Payment Date occurs and,
in the case of clauses (a) and (b), after giving effect to the receipt of
monies collected on such Receivable in such preceding Collection Period.
"Purchased Receivable" shall mean, on any date of determination, a
Receivable as to which payment of the Purchase Amount has been made by MART II
pursuant to Section 2.3 of the Sale and Servicing Agreement or by the Servicer
pursuant to Section 3.7 or 9.1 of the Sale and Servicing Agreement.
"Qualified Institution" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, or any depository institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination
by federal or state banking authorities which at all times has a short-term
deposit rating of "Prime-1" by Moody's, "A-1" by S&P and "F1" by Fitch Ratings
and, in the case of any such institution organized under the laws of the
United States of America, whose deposits are insured by the Federal Deposit
Insurance Corporation or any successor thereto.
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Qualified Trust Institution" shall mean the corporate trust
department of Bank of Tokyo-Mitsubishi Trust Company or any other institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination
by federal or state banking authorities which at all times (i) is authorized
under such laws to act as a trustee or in any other fiduciary capacity, (ii)
has not less than one billion dollars in assets under fiduciary management and
(iii) has a long-term deposit rating that satisfies the Rating Agency
Condition.
"Rating Agency" shall mean Moody's, S&P or Fitch Ratings, and
together, the "Rating Agencies." If no such organization or successor is any
longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Issuer, notice of which designation shall be given to the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have been given prior written notice thereof and
that each of the Rating Agencies shall have notified MART II, the Servicer,
the Owner Trustee and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating of the
Notes or the Certificates.
"Realized Losses" shall mean, with respect to each Payment Date and
each Receivable that became a Defaulted Receivable during the related
Collection Period, the excess of the Principal Balance of such Defaulted
Receivable (including the principal of a Last Scheduled Payment) over the
Liquidation Proceeds attributable to such Defaulted Receivable.
"Receivable" shall mean any Initial Receivable or Subsequent
Receivable, as the context may require.
"Receivable File" shall have the meaning assigned thereto in Section
2.4 of the Sale and Servicing Agreement.
"Receivable Yield Supplement Amount" shall mean, with respect to each
Payment Date and each Receivable that was a Deferred Payment Receivable as of
the last day of the preceding Collection Period (other than a Receivable which
became a Defaulted Receivable or a Purchased Receivable or any Receivable sold
by the Indenture Trustee following an Event of Default pursuant to Section 5.4
of the Indenture), an amount equal to the product of (x) the Adjusted
Principal Balance of such Receivable on the first day of the preceding
Collection Period, (y) the Initial Weighted Average Rate plus 0.25%, and (z)
1/12.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or
(ii) for any Definitive Notes and for the Certificates, the 15th day of the
preceding month, unless such 15th day is not a Business Day, in which case the
immediately preceding Business Day.
"Recoveries" shall mean, with respect to any Collection Period
following the Collection Period in which such Receivable became a Defaulted
Receivable, all monies received by the Servicer with respect to such Defaulted
Receivable during any Collection Period, net of the sum of (i) any expenses
incurred by the Servicer in connection with the collection of such Receivable
and the disposition of the Financed Vehicle (to the extent not previously
reimbursed) and (ii) any payments on such Receivable required by law to be
remitted to the Obligor.
"Redemption Date" shall mean (a) in the case of a redemption of Notes
pursuant to Section 10.1(a) of the Indenture, the Payment Date specified by
the Servicer on which date the Indenture Trustee shall withdraw any amount
remaining in the Reserve Account and deposit the applicable amount thereof
payable to the Notes in the Note Payment Account from any amount remaining in
the Reserve Account and (b) in the case of a redemption of Notes pursuant to
Section 10.1(b) of the Indenture, the Payment Date specified by the Servicer
pursuant to Section 4.11(b) of the Sale and Servicing Agreement.
"Redemption Price" shall mean (a) in the case of a redemption of
Notes pursuant to Section 10.1(a) of the Indenture, an amount equal to the
unpaid principal amount of the Notes redeemed plus accrued and unpaid interest
thereon as of the applicable Redemption Date and (b) in the case of a
redemption of Notes pursuant to Section 10.1(b) of the Indenture, an amount
equal to the lesser of (x) the Remaining Pre-Funded Amount withdrawn from the
Pre-Funding Account and deposited to the Collection Account on or prior to the
Redemption Date pursuant to Section 4.11(b) of the Sale and Servicing
Agreement and (y) the amount specified in clause (a) above.
"Registered Holder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Relevant UCC" shall mean the Uniform Commercial Code as in effect in
any relevant jurisdiction. In the event that the Uniform Commercial Code as in
effect on the date hereof in any relevant jurisdiction is revised subsequent
to the date hereof, all references to specific sections of the Uniform
Commercial Code shall be deemed to be references to the successor provisions
of the Uniform Commercial Code.
"Remaining Pre-Funded Amount" shall have the meaning assigned thereto
in Section 4.11(b) of the Sale and Servicing Agreement.
"Repurchase Event" shall have the meaning specified in Section 6.2 of
the Purchase Agreement.
"Required Negative Carry Account Balance" shall mean, as of any
Payment Date, the lesser of (i) the Negative Carry Account Initial Deposit
minus all previous withdrawals of the Negative Carry Amount from the Negative
Carry Account, including any withdrawals of the Negative Carry Amount
therefrom on such Payment Date, and (ii) the Maximum Negative Carry Amount as
of such Payment Date.
"Required Rating" shall mean a rating on short-term unsecured debt
obligations of "Prime-1" by Moody's, "A-1" by S&P and "F1+" by Fitch Ratings,
and any requirement that short-term unsecured debt obligations have the
"Required Rating" shall mean that such short-term unsecured debt obligations
have the foregoing required ratings from each of such Rating Agencies.
"Reserve Account" shall mean the account established and maintained
as such pursuant to Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account Advance Draw Amount" shall have the meaning assigned
thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Reserve Account Amount" shall mean, with respect to any Payment
Date, the amount on deposit in the Reserve Account. Unless specifically stated
to the contrary, the Reserve Account Amount shall be calculated after giving
effect to all deposits and withdrawals therefrom on the prior Payment Date
(or, in the case of the first Payment Date, the Closing Date) and all interest
and other income (net of losses and investment expenses) on such amounts
during the related Collection Period.
"Reserve Account Initial Deposit" shall mean $31,604,607.83.
"Reserve Account Property" shall have the meaning assigned thereto in
Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account TRP Draw Amount" shall have the meaning assigned
thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Responsible Officer" shall mean (a) with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee with direct responsibility for the administration of the Indenture and
the other Basic Documents on behalf of the Indenture Trustee and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject, (b) with respect to the Owner Trustee, any officer within
the Corporate Trust Office of the Owner Trustee with direct responsibility for
administration of the Trust, including any vice president, assistant vice
president, secretary, assistant secretary, financial services officer or any
other officer of the Owner Trustee, customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and shall also mean any officer of the Administrator and
(c) with respect to the Issuer, any officer of the Owner Trustee who is
authorized to act for or on behalf of the Owner Trustee in matters relating to
the Issuer and who is identified on the list of Responsible Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter) and, for so
long as the Administration Agreement is in full force and effect, any officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement.
"Rule 144A" shall have the meaning assigned to such term in Section
3.4(d)(i) of the Trust Agreement.
"Rule 144A Information" shall have the meaning assigned to such term
in Section 3.4(e) of the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of October 1, 2002, by and among the Issuer, MART II and
the Servicer, as from time to time amended, supplemented or otherwise modified
and in effect.
"Sale Price" shall mean, with respect to any Final Payment
Receivable, an amount equal to the Last Scheduled Payment, minus the sum of
any charges for Excess Wear and Tear and Excess Mileage and the amount of any
disposition fee payable to the Servicer.
"Schedule of Initial Receivables" shall mean the list of Initial
Receivables attached as Exhibit B to the Purchase Agreement.
"Schedule of Receivables" shall mean the Schedule of Initial
Receivables or any Schedule of Subsequent Receivables, as the context may
require.
"Schedule of Subsequent Receivables" shall mean any list of
Subsequent Receivables attached as Schedule A to the related First-Tier
Subsequent Assignment.
"Scheduled Payment" shall mean, for any Collection Period for any
Receivable, the amount indicated in such Receivable as required to be paid by
the Obligor in such Collection Period (without giving effect to modifications
of payment terms pursuant to Section 3.2 of the Sale and Servicing Agreement
or any rescheduling in any insolvency or similar proceedings).
"Second-Tier Subsequent Assignment" shall have the meaning assigned
thereto in Section 2.1(d)(ii) of the Sale and Servicing Agreement.
"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities" shall have the meaning specified in the MART II Trust
Agreement.
"Seller" shall mean MART II, in its capacity as seller of the
Receivables under the Sale and Servicing Agreement, and each successor thereto
(in the same capacity) pursuant to Section 6.3 of the Sale and Servicing
Agreement.
"Servicer" shall mean MMCA, in its capacity as servicer under the
Sale and Servicing Agreement, and any successor Servicer thereunder.
"Servicer's Certificate" shall have the meaning assigned thereto in
Section 3.9 of the Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to any Payment Date, the fee
payable to the Servicer for services rendered during the related Collection
Period, determined pursuant to and defined in Section 3.8 of the Sale and
Servicing Agreement.
"Servicing Officer" shall mean any officer of the Servicer involved
in, or responsible for, the administration and servicing of the Receivables,
whose name appears on a list of servicing officers attached to an Officer's
Certificate furnished on the Closing Date to the Owner Trustee and the
Indenture Trustee by the Servicer, as such list may be amended from time to
time by the Servicer in writing.
"SFAS 140" shall mean Statement of Financial Accounting Standard No.
140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
"Simple Interest Method" shall mean the method of allocating a fixed
payment between principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the product of the APR
multiplied by the unpaid principal balance multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and a 365-day year) elapsed since the preceding payment was
made and the remainder of such payment is allocable to principal.
"Simple Interest Receivable" shall mean any Receivable under which
the portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Balance" shall mean, with respect to any Payment
Date, the lesser of (i) the sum of (a) 6.00% of the Adjusted Principal Balance
of the Initial Receivables as of the Initial Cutoff Date and (b) 6.00% of the
Adjusted Principal Balance of Subsequent Receivables transferred to the Trust
after that Payment Date, calculated as of the related Subsequent Cutoff Dates
and (ii) the outstanding principal amount of the Notes as of such Payment Date
(after giving effect to any principal payment made on such Payment Date).
Notwithstanding the foregoing, if (x) each Rating Agency delivers a letter to
the Indenture Trustee that the use of any new formulation requested by MART II
would not cause a downgrade, qualification or withdrawal of the then current
rating on any Class of Notes and (y) an Opinion of Counsel to the effect that
the proposed change will not adversely affect the status of the Notes as debt
is delivered to the Indenture Trustee, then the Specified Reserve Balance may
be changed in accordance with such letters without an amendment hereto.
"Specified Yield Supplement Account Balance" shall mean, (i) on the
Closing Date, $23,011,579.39, and (ii) as of the close of business on any
Payment Date, an amount equal to the sum of all projected Yield Supplement
Amounts for all future Payment Dates, assuming that no prepayments are made on
the Deferred Payment Receivables.
"Standard Receivable" shall mean all rights and obligations under a
Contract listed on a Schedule of Receivables which is not a Final Payment
Receivable.
"State" shall mean any of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ or the District of Columbia.
"Stated Maturity Date" shall mean the Class A-1 Stated Maturity Date,
the Class A-2 Stated Maturity Date, the Class A-3 Stated Maturity Date, the
Class A-4 Stated Maturity Date, the Class B Stated Maturity Date and the Class
C Stated Maturity Date, collectively, or any of them, as the context requires.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Subsequent Cutoff Date" shall, with respect to any Subsequent
Receivable, have the meaning specified in the related First-Tier Subsequent
Assignment.
"Subsequent Payahead Account Deposit" shall mean, with respect to any
Subsequent Transfer Date, cash or Permitted Investments having a value equal
to the aggregate amount of the Payahead Balances as of the related Subsequent
Cutoff Date of the Subsequent Receivables conveyed to the Trust on such
Subsequent Transfer Date.
"Subsequent Receivable" shall mean each motor vehicle retail
installment sale contract described in a Schedule of Subsequent Receivables
attached as Schedule A to a First-Tier Subsequent Assignment (an identical
copy of which is attached as Schedule A to a related Second-Tier Subsequent
Assignment), and all rights and obligations thereunder and any amendments,
modifications or supplements to such motor vehicle retail installment sale
contract.
"Subsequent Receivables Purchase Price" shall have the meaning
specified in Section 2.2(b) of the Purchase Agreement.
"Subsequent Reserve Account Deposit" shall mean, with respect to any
Subsequent Transfer Date, cash or Permitted Investments having a value
approximately equal to 6.00% of the aggregate Adjusted Principal Balance of
the Subsequent Receivables conveyed to the Trust on such Subsequent Transfer
Date as of the close of business on the related Subsequent Cutoff Date.
"Subsequent Transfer Date" shall mean, with respect to any Subsequent
Receivable, the Business Day on which the related First-Tier Subsequent
Assignment is executed and delivered.
"Subsequent Yield Supplement Account Deposit" shall mean, with
respect to any Subsequent Transfer Date, cash or Permitted Investments having
a value approximately equal to the sum of the projected Receivable Yield
Supplement Amounts for the Subsequent Receivables conveyed to the Trust on
such Subsequent Transfer Date for all future Payment Dates, assuming the
future Scheduled Payments on such Subsequent Receivables are made on their
scheduled due dates.
"Subtrust" shall have the meaning specified in the MART II Trust
Agreement.
"Subtrust Assets" shall have the meaning specified in the MART II
Trust Agreement.
"Successor Servicer" shall have the meaning specified in Section
3.7(e) of the Indenture.
"Supplemental Servicing Fee" shall mean, with respect to any Payment
Date, the fee payable to the Servicer for services rendered during the related
Collection Period, determined pursuant to and defined in Section 3.8 of the
Sale and Servicing Agreement.
"Telerate Page 3750" shall mean the display designated as page "3750"
by Telerate, Inc. (or such other page as may replace Telerate Page 3750 on
that service for the purpose of displaying London interbank offered rates of
major banks).
"Total Available Funds" shall mean, for any Payment Date, an amount
equal to the sum of (i) the Available Funds for such Payment Date and (ii) the
Reserve Account TRP Draw Amount, if any, for such Payment Date.
"Total Required Payment" shall mean, on any Payment Date, the sum of
(i) the Total Servicing Fee, (ii) the Accrued Note Interest and (iii) the
Principal Distribution Amount with respect to such Payment Date.
"Total Servicing Fee" shall mean, with respect to any Payment Date,
the sum of (i) the Servicing Fee for the related Collection Period plus (ii)
all accrued and unpaid Servicing Fees for prior Collection Periods.
"Total Yield Supplement Overcollateralization Amount" shall mean,
with respect to any Payment Date, the sum of the Yield Supplement
Overcollateralization Amounts with respect to all Receivables (other than
Purchased Receivables or Defaulted Receivables) as of such Payment Date.
"Transfer" shall have the meaning assigned to such term in Section
3.2 of the Trust Agreement.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean MMCA Auto Owner Trust 2002-4, a Delaware statutory
trust.
"Trust Accounts" shall have the meaning assigned thereto in Section
5.1(a) of the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of October 1, 2002, between MART II and the Owner Trustee,
as the same may be amended, supplemented or otherwise modified and in effect
from time to time.
"Trust Estate" shall mean all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, as of any date of determination, the
Initial Receivables and other property related thereto sold, transferred,
assigned and otherwise conveyed by MART II to the Trust pursuant to Section
2.1(a) of the Sale and Servicing Agreement together with the Subsequent
Receivables and other property related thereto sold, transferred, assigned and
otherwise conveyed by MART II to the Trust pursuant to Section 2.1(b) of the
Sale and Servicing Agreement, on or prior to such date of determination
pursuant to any Second-Tier Subsequent Assignment.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
October 10, 2002, by and between ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
representative of the several underwriters of the Class A Notes and as the
sole underwriter of the Class B Notes and the Class C Notes, and MART II.
"Void Transfer" shall have the meaning assigned to such term in
Section 3.2 of the Trust Agreement.
"Weighted Average Rate" shall mean, with respect to any date of
determination, a per annum rate equal to (1) the sum of (a) the product of (x)
the outstanding principal amount of the Class A-1 Notes on such date and (y)
the Class A-1 Rate, plus (b) the product of (x) the outstanding principal
amount of the Class A-2 Notes on such date and (y) the Class A-2 Rate, plus
(c) the product of (x) the outstanding principal amount of the Class A-3 Notes
on such date and (y) the Class A-3 Rate, plus (d) the product of (x) the
outstanding principal amount of the Class A-4 Notes on such date and (y) the
Class A-4 Rate, plus (e) the product of (x) the outstanding principal amount
of the Class B Notes on such date and (y) the Class B Rate, plus (f) the
product of (x) the outstanding principal amount of the Class C Notes on such
date and (y) the Class C Rate, divided by (2) the sum of the outstanding
principal amount of the Notes on such date plus the Certificate Balance on
such date; provided, that if the date of determination is a Payment Date, then
the outstanding principal amount of any class of Notes shall be determined
after giving effect to all payments made on such date.
"Yield Supplement Account" shall have the meaning assigned thereto in
Section 5.1(a) of the Sale and Servicing Agreement.
"Yield Supplement Agreement" shall mean the Yield Supplement
Agreement, dated as of October 1, 2002, by and between MART II and MMCA, as
amended, modified or supplemented from time to time, substantially in the form
of Exhibit D to the Sale and Servicing Agreement.
"Yield Supplement Amount" shall mean, with respect to any Payment
Date, the sum of all Receivable Yield Supplement Amounts for the related
Collection Period.
"Yield Supplement Letter of Credit" shall mean any letter of credit
issued by the Letter of Credit Bank, as permitted by Section 5.1 of the Sale
and Servicing Agreement, to support payments of the Yield Supplement Amount
under the Yield Supplement Agreement.
"Yield Supplement Overcollateralization Amount" shall mean, with
respect to any Payment Date and any Receivable (other than a Purchased
Receivable or a Defaulted Receivable), an amount equal to the excess of (i)
the present value of the remaining Scheduled Payments due under such
Receivable as of the later to occur of (x) the last day of the preceding
Collection Period and (y) the first date on which interest accrues on such
Receivable as set forth in the related Contract, discounted at a rate equal to
the APR of such Receivable, over (ii) the present value of the remaining
Scheduled Payments due under such Receivable as set forth in clause (i) above,
discounted at a rate equal to the greater of the APR of the Receivable and
6.25%. For the purposes of the foregoing calculation, the Payahead Balance
with respect to any Actuarial Receivable shall be applied to reduce the amount
of any Scheduled Payment on the related Actuarial Receivable in the order in
which such Scheduled Payments were due.