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INDENTURE
between
MMCA AUTO OWNER TRUST 2000-2,
as Issuer,
and
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of November [ ], 2000
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$[ ] [ ]% Class A-1 Asset Backed Notes
$[ ] [ ]% Class A-2 Asset Backed Notes
$[ ] [ ]% Class A-3 Asset Backed Notes
$[ ] [ ]% Class A-4 Asset Backed Notes
$[ ] [ ]% Class B Asset Backed Notes
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1
CROSS REFERENCE TABLE1
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TIA Indenture
Section Section
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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
2
(a)(2)................................................................................................ 5.3
(b) ................................................................................................. 3.3
318 (a) ................................................................................................... 11.7
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
2 N.A. means Not Applicable.
3
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.................................................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act..........................................12
SECTION 1.3 Rules of Construction......................................................................12
ARTICLE II
THE NOTES
SECTION 2.1 Form.......................................................................................13
SECTION 2.2 Execution, Authentication and Delivery.....................................................13
SECTION 2.3 Temporary Notes............................................................................14
SECTION 2.4 Tax Treatment..............................................................................14
SECTION 2.5 Registration; Registration of Transfer and Exchange........................................14
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.................................................16
SECTION 2.7 Persons Deemed Owner.......................................................................17
SECTION 2.8 Payments...................................................................................17
SECTION 2.9 Cancellation...............................................................................20
SECTION 2.10 Release of Collateral......................................................................21
SECTION 2.11 Book-Entry Notes...........................................................................21
SECTION 2.12 Notices to Clearing Agency.................................................................22
SECTION 2.13 Definitive Notes...........................................................................22
SECTION 2.14 Authenticating Agents......................................................................23
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant...........................................................................24
SECTION 3.2 Maintenance of Office or Agency............................................................24
SECTION 3.3 Money for Payments To Be Held in Trust.....................................................24
SECTION 3.4 Existence..................................................................................26
SECTION 3.5 Protection of Trust Estate.................................................................26
SECTION 3.6 Opinions as to Trust Estate................................................................26
SECTION 3.7 Performance of Obligations; Servicing of Receivables.......................................27
SECTION 3.8 Negative Covenants.........................................................................29
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SECTION 3.9 Annual Statement as to Compliance..........................................................29
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms........................................30
SECTION 3.11 Successor or Transferee....................................................................32
SECTION 3.12 No Other Business..........................................................................32
SECTION 3.13 No Borrowing...............................................................................32
SECTION 3.14 Servicer's Obligations.....................................................................32
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities..........................................32
SECTION 3.16 Capital Expenditures.......................................................................32
SECTION 3.17 Further Instruments and Acts...............................................................32
SECTION 3.18 Restricted Payments........................................................................33
SECTION 3.19 Notice of Events of Default................................................................33
SECTION 3.20 Removal of Administrator...................................................................33
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture....................................................33
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes........................................34
SECTION 4.3 Application of Trust Money.................................................................36
SECTION 4.4 Repayment of Monies Held by Paying Agent...................................................36
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default..........................................................................36
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.........................................38
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee..........................................................................38
SECTION 5.4 Remedies; Priorities.......................................................................41
SECTION 5.5 Optional Preservation of the Receivables...................................................42
SECTION 5.6 Limitation of Suits........................................................................42
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest...............................................................................43
SECTION 5.8 Restoration of Rights and Remedies.........................................................43
SECTION 5.9 Rights and Remedies Cumulative.............................................................43
SECTION 5.10 Delay or Omission Not a Waiver.............................................................43
SECTION 5.11 Control by Noteholders.....................................................................43
SECTION 5.12 Waiver of Past Defaults....................................................................44
SECTION 5.13 Undertaking for Costs......................................................................44
SECTION 5.14 Waiver of Stay or Extension Laws...........................................................45
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SECTION 5.15 Action on Notes............................................................................45
SECTION 5.16 Performance and Enforcement of Certain Obligations.........................................45
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee................................................................46
SECTION 6.2 Rights of Indenture Trustee................................................................48
SECTION 6.3 Individual Rights of Indenture Trustee.....................................................49
SECTION 6.4 Indenture Trustee's Disclaimer.............................................................49
SECTION 6.5 Notice of Defaults.........................................................................49
SECTION 6.6 Reports by Indenture Trustee to Holders....................................................49
SECTION 6.7 Compensation and Indemnity.................................................................50
SECTION 6.8 Replacement of Indenture Trustee...........................................................50
SECTION 6.9 Successor Indenture Trustee by Merger......................................................51
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee....................................................................................52
SECTION 6.11 Eligibility; Disqualification..............................................................53
SECTION 6.12 Preferential Collection of Claims Against Issuer...........................................54
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses......................................54
ARTICLE VII
NOTEHOLDERS' LISTS; REPORTING
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders.............................................................................54
SECTION 7.2 Preservation of Information; Communications to
Noteholders................................................................................54
SECTION 7.3 Reporting by Issuer........................................................................55
SECTION 7.4 Reporting and Notices by Indenture Trustee.................................................55
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money........................................................................56
SECTION 8.2 Trust Accounts.............................................................................56
SECTION 8.3 General Provisions Regarding Accounts......................................................56
SECTION 8.4 Release of Trust Estate....................................................................57
SECTION 8.5 Opinion of Counsel.........................................................................58
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.....................................58
SECTION 9.2 Supplemental Indentures with Consent of Noteholders........................................59
SECTION 9.3 Execution of Supplemental Indentures.......................................................61
SECTION 9.4 Effect of Supplemental Indenture...........................................................62
SECTION 9.5 Conformity with Trust Indenture Act........................................................62
SECTION 9.6 Reference in Notes to Supplemental Indentures..............................................62
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................................................................62
SECTION 10.2 Form of Redemption Notice..................................................................63
SECTION 10.3 Notes Payable on Redemption Date...........................................................63
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc..................................................64
SECTION 11.2 Form of Documents Delivered to Indenture Trustee...........................................66
SECTION 11.3 Acts of Noteholders........................................................................66
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies...................................................................................67
SECTION 11.5 Notices to Noteholders; Waiver.............................................................68
SECTION 11.6 Alternate Payment and Notice Provisions....................................................68
SECTION 11.7 Conflict with Trust Indenture Act..........................................................68
SECTION 11.8 Effect of Headings and Table of Contents...................................................69
SECTION 11.9 Successors and Assigns.....................................................................69
SECTION 11.10 Separability...............................................................................69
SECTION 11.11 Benefits of Indenture......................................................................69
SECTION 11.12 Legal Holiday..............................................................................69
SECTION 11.13 Governing Law..............................................................................69
SECTION 11.14 Counterparts...............................................................................69
SECTION 11.15 Recording of Indenture.....................................................................69
SECTION 11.16 Trust Obligation...........................................................................70
SECTION 11.17 No Petition; Subordination; Claims Against Seller..........................................70
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SECTION 11.18 Inspection.................................................................................71
SECTION 11.19 Employee Benefit Plans.....................................................................71
SCHEDULES
SCHEDULE A Schedule of Receivables......................................................................SA-1
SCHEDULE I List of Permitted Investments................................................................SI-1
EXHIBITS
EXHIBIT A-1 Form of Class A-1 Note......................................................................A-1-1
EXHIBIT A-2 Form of Class A-2 Note ..................................................................A-2-1
EXHIBIT A-3 Form of Class A-3 Note......................................................................A-3-1
EXHIBIT A-4 Form of Class A-4 Note......................................................................A-4-1
EXHIBIT B Form of Class B Note......................................................................B-1
EXHIBIT C Form of Opinion of Counsel Pursuant to Section 3.6(a).....................................C-1
v
INDENTURE, dated as of November [ ], 2000 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Indenture"), between MMCA AUTO OWNER TRUST 2000-2, a Delaware business trust
(the "Issuer"), and BANK OF TOKYO - MITSUBISHI TRUST COMPANY, a New York banking
corporation, as trustee 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 [ ]%
Class A-1 Asset Backed Notes (the "Class A-1 Notes"), [ ]% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), [ ]% Class A-3 Asset Backed Notes (the
"Class A-3 Notes"), [ ]% Class A-4 Asset Backed Notes (the "Class A-4 Notes"
and, together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, the "Class A Notes") and [ ]% Class B Asset Backed Notes (the "Class B
Notes" and together with the Class A Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes,
all of the Issuer's right, title and interest in, to and under, whether now
owned or existing or hereafter acquired or arising (a) the Receivables; (b) with
respect to Actuarial Receivables, monies due thereunder on or after the related
Cutoff Date (including Payaheads) and, with respect to Simple Interest
Receivables, monies received thereunder on or after the related Cutoff Date; (c)
the security interests in the Financed Vehicles granted by Obligors pursuant to
the Receivables and any other interest of the Issuer in the Financed Vehicles;
(d) all rights to receive proceeds with respect to the Receivables from claims
on any physical damage, theft, credit life or disability insurance policies
covering the Financed Vehicles or Obligors; (e) all rights to receive proceeds
with respect to the Receivables from recourse to Dealers thereon pursuant to the
Dealer Agreements; (f) all rights to the Receivable Files; (g) the Trust
Accounts and all amounts, securities, financial assets, investments and other
property deposited in or credited to any of the foregoing and all proceeds
thereof; (h) all rights under the Sale and Servicing Agreement and the Yield
Supplement Agreement; (i) all rights under the Purchase Agreement, including the
right of the Seller to cause MMCA to repurchase Receivables from the Seller; (j)
all payments and proceeds with respect to the Receivables held by the Servicer;
(k) all property (including the right to receive Liquidation Proceeds and
Recoveries and Financed Vehicles and the proceeds thereof acquired by the Issuer
pursuant to the terms of a Final Payment Receivable), guarantees and other
collateral securing a Receivable (other than a Receivable purchased by the
Servicer or repurchased by the Seller); (l) all rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the related 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
1
receivables, instruments and other property which at any time constitute all or
part of or are included in the proceeds of any of the foregoing (collectively,
the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the best of its ability to the
end that the interests of the Holders of the Notes may be adequately and
effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. (a) Except as otherwise specified
herein or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture.
"Accrued Note Interest" shall mean, with respect to any
Payment Date and each Class of Notes, the sum of the Monthly Accrued Note
Interest and the Interest Carryover Shortfall for such Class for such Payment
Date.
"Act" shall have the meaning specified in Section 11.3(a).
"Administration Agreement" shall mean the Administration
Agreement, dated as of November [ ], 2000, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of
America, Inc., a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Authenticating Agent" shall have the meaning specified in
Section 2.14.
"Basic Documents" shall mean this Indenture, the Certificate
of Trust, the Trust Agreement, the Assignments (as defined in the Purchase
Agreement), the Sale and Servicing Agreement, the Purchase Agreement, the
Administration Agreement, the Note Depository Agreement, the Yield Supplement
Agreement, the Control Agreement and other documents and
2
certificates delivered in connection therewith as the same may from time to time
be amended, supplemented or otherwise modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New York,
New York, Wilmington, Delaware or Los Angeles, California are authorized or
obligated by law, regulation or executive order to be closed.
"Certificate of Trust" shall mean the certificate of trust of
the Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Class" shall mean a class of Notes, which may be the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes or the
Class B Notes.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A-1 Final Payment Date" shall mean the [ ] 2001
Payment Date.
"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 $[ ] aggregate initial
principal amount of [ ]% Class A-1 Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit A-1 to this
Indenture.
"Class A-1 Rate" shall mean [ ]% per annum.
"Class A-2 Final Payment Date" shall mean the [ ] 200[3]
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 $[ ] aggregate initial
principal amount of [ ]% Class A-2 Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit A-2 to this
Indenture.
3
"Class A-2 Rate" shall mean [ ]% per annum.
"Class A-3 Final Payment Date" shall mean the [ ] 200[4]
Payment Date.
"Class A-3 Noteholder" shall mean the Person on whose name a
Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $ [ ] aggregate initial
principal amount of [ ]% Class A-3 Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit A-3 to this
Indenture.
"Class A-3 Rate" shall mean [ ]% per annum.
"Class A-4 Final Payment Date" shall mean the [ ] 200[5]
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 $[ ] aggregate initial
principal amount of [ ]% Class A-4 Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit A-4 to this
Indenture.
"Class A-4 Rate" shall mean [ ]% per annum.
"Class B Final Payment Date" shall mean the [ ] 200[5]
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 $[ ] aggregate initial
principal amount of [ ]% Class B Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit B to this
Indenture.
"Class B Rate" shall mean [ ]% per annum.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" shall mean November [ ], 2000.
4
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations, including proposed or
temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting
Clause of this Indenture.
"Commission" shall mean the Securities and Exchange
Commission.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of November ____, 2000, by and among the Seller, the Issuer,
the Servicer, the Indenture Trustee and Bank of Tokyo - Mitsubishi Trust Company
in its capacity as a securities intermediary, as the same may from time to time
be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean the principal office of
the Indenture Trustee at which at any particular time its corporate trust
business shall be administered, which office at date of execution of this
Indenture is located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Corporate Trust Department, or at such other address as
the Indenture Trustee may designate from time to time by notice to the
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" shall mean any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in Section
2.11.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Event of Default" shall have the meaning specified in Section
5.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Executive Officer" shall mean, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Final Payment Date" shall mean the Class A-1 Final Payment
Date, the Class A-2 Final Payment Date, the Class A-3 Final Payment Date, the
Class A-4 Final Payment Date and the Class B Final Payment Date, collectively,
or any of them, as the context requires.
5
"Final Scheduled Maturity Date" shall mean with respect to any
Receivable, [ ].
"Grant" shall mean to mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer, create, and to
xxxxx x xxxx upon and a security interest in and right of set-off against, and
to deposit, set over and confirm pursuant to this Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral and all other monies payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Holder" or "Noteholder" shall mean the Person in whose name a
Note is registered on the Note Register.
"Indenture Trustee" shall mean Bank of Tokyo - Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee under this
Indenture, or any successor Indenture Trustee under this Indenture.
"Independent" shall mean, when used with respect to any
specified Person, that such Person (a) is in fact independent of the Issuer, any
other obligor on the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion
to be delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1, made
by an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Interest Accrual Period" shall mean, with respect to any
Payment Date and with respect to each Class of the Notes, the period from and
including the 15th day of the calendar month immediately preceding such Payment
Date (or, in the case of the first Payment Date, the Closing Date), to but
excluding the 15th day of the calendar month in which such Payment Date occurs.
6
"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 MMCA Auto Owner Trust 2000-2, unless a
successor replaces it and, thereafter, means the successor and for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order
or request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"MART Trust Agreement" shall mean the Amended and Restated
Trust Agreement, dated as of October 1, 1999, between MMCA, as beneficiary, and
Chase Manhattan Bank USA, N.A., a national banking association (as successor to
Chase Manhattan Bank Delaware), as trustee, relating to the Seller, as from time
to time amended, supplemented or otherwise modified and in effect.
"Monthly Accrued Note Interest" shall mean, with respect to
any Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class on
the aggregate principal amount of the Notes of such Class as of the immediately
preceding Payment Date, after giving effect to all payments of principal to
Noteholders on or prior to such preceding Payment Date (or, in the case of the
first Payment Date, the initial principal amount of the Notes); and (ii) with
respect to the Notes collectively, the sum of Monthly Accrued Note Interest for
each Class.
"Note Depository Agreement" shall mean the agreement dated, as
of November __, 2000, among the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company, as the initial Clearing Agency, relating to
the Notes.
"Note Interest Rate" shall mean, in the case of the Class A-1
Notes, the Class A-1 Rate, in the case of the Class A-2 Notes, the Class A-2
Rate, in the case of the Class A-3 Notes, the Class A-3 Rate, in the case of the
Class A-4 Notes, the Class A-4 Rate, and in the case of the Class B Notes, the
Class B Rate.
"Note Owner" shall mean, with respect to any Book-Entry Note,
the Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a
7
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a).
"Noteholders" shall mean the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and the
Class B Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, collectively.
"Officer's Certificate" shall mean a certificate signed by any
Responsible Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
this Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Responsible Officer of the Issuer.
"Opinion of Counsel" shall mean one or more written opinions
of counsel who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Issuer, MMCA or the Servicer and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with the
applicable requirements of Section 11.1, and shall be in form and substance
satisfactory to the Indenture Trustee.
"Outstanding" shall mean, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a protected purchaser;
8
provided, that in determining whether the Holders of the requisite principal
amount of the Notes Outstanding have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Seller, the
Servicer or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller, the
Servicer or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount
of all Notes Outstanding at the date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, or any successor Owner Trustee under the
Trust Agreement.
"Paying Agent" shall mean the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee specified
in Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account and the Note Payment Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" shall mean the 15th day of each month, or if
any such day is not a Business Day, the immediately following Business Day,
commencing [November] [ ], 2000.
"Plan" shall mean an employee benefit plan subject to Title I
of ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Predecessor Note" shall mean, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any Note
authenticated and delivered under Section 2.6 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
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"Rating Agency" shall mean either S&P or Moody's, 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 notice thereof and
that each of the Rating Agencies shall have notified the Seller, the Servicer,
the Indenture Trustee and the Owner Trustee that such action shall not result in
a reduction or withdrawal of the then current rating assigned to any Class of
Notes.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or, (ii)
for any Definitive Notes that have been issued pursuant to Section 2.13, the
fifteenth (15th) day of the preceding month, unless such fifteenth (15th) day is
not a Business Day, in which case the immediately preceding Business Day.
"Redemption Date" shall mean (a) in the case of a redemption
of Notes pursuant to Section 10.1(a), the Payment Date specified by the Servicer
pursuant to Section 10.1(a) 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), the Payment Date specified by the Servicer pursuant
to Section 4.8(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), 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), 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 4.8(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.
"Responsible Officer" shall mean, (a) with respect to the
Issuer, any officer of the Owner Trustee who is authorized to act for or on
behalf of the Owner Trustee in matters relating to the Issuer and who is
identified on the list of Responsible Officers delivered by the Owner Trustee to
the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) and, for so long as the
Administration Agreement is in full force and effect, any officer of the
Administrator who is authorized to act for the
10
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and (b) with respect to
the Indenture Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee with direct responsibility for the administration of this
Indenture and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of November __, 2000, by and among the Issuer, the
Seller and the Servicer, as from time to time amended, supplemented or otherwise
modified and in effect.
"Securities" shall have the meaning specified in the MART
Trust Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean MMCA Auto Receivables Trust, a Delaware
business trust, in its capacity as seller under the Sale and Servicing
Agreement, and its successors-in-interest.
"Servicer" shall mean Mitsubishi Motors Credit of America,
Inc., a Delaware corporation, in its capacity as servicer under the Sale and
Servicing Agreement, and any successor Servicer thereunder.
"State" shall mean any of the fifty States of the United
States of America or the District of Columbia.
"Subtrust" shall have the meaning specified in the MART Trust
Agreement.
"Subtrust Assets" shall have the meaning specified in the MART
Trust Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e).
"Total Required Payment" shall mean, on any Payment Date, the
Total Servicing Fee, the Accrued Note Interest and the Principal Distribution
Amount.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Noteholders
(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.
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(b) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein have
the respective meanings set forth in, or incorporated by reference into, the
Sale and Servicing Agreement for all purposes of this Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without
limitation;
(v) words in the singular include the plural and
words in the plural include the singular; and
(vi) any agreement, instrument or statute defined
or referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from
time to time
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amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to
its permitted successors and assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form. (a) The Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, together
with the Indenture Trustee's Certificates of Authentication, shall be in
substantially the form set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0,
Xxxxxxx X-0 and Exhibit B, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the text of any Note may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in Exhibits X-0, X-0, X-0, X-0
and B hereto are part of the terms of this Indenture and are incorporated herein
by reference.
SECTION 2.2 Execution, Authentication and Delivery. (a) The
Notes shall be executed on behalf of the Issuer by any of its Responsible
Officers. The signature of any such Responsible Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Responsible Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $[ ], Class A-2 Notes for original issue in an aggregate
principal amount of $[ ], Class A-3 Notes for original issue in an aggregate
principal amount of $[ ], Class A-4 Notes for original issue in an aggregate
principal amount of $[ ], and Class B Notes for original issue in an
aggregate principal amount of $[ ]. The aggregate principal amounts of Class A-1
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Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes
outstanding at any time may not exceed those respective amounts except as
provided in Section 2.6.
(d) Each Note shall be dated the date of its
authentication. The Notes shall be issuable in minimum denominations of $1,000
and integral multiples of $1,000 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
14
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.
15
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving any
transfer.
(h) The preceding provisions of this Section 2.5
notwithstanding, the Issuer shall not be required to make and the Note Registrar
need not register transfers or exchanges of Notes selected for redemption or of
any Note for a period of fifteen (15) days preceding the due date for any
payment with respect to such Note.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes. (a) If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
Relevant UCC are met, the Issuer shall execute, and upon its request the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Class; provided, however, that if any such destroyed, lost or stolen Note,
but not a mutilated Note, shall have become or within seven (7) days of the
Indenture Trustee's receipt of evidence to its satisfaction of such destruction,
loss or theft shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note of the same Class, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. The Indenture Trustee may rely upon
the Administrator with respect to the determination of whether the requirements
of Section 8-405 of the Relevant UCC are met. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a protected purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
Section 2.6, the Issuer may require the payment by the Holder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
16
(c) Every replacement Note issued pursuant to this
Section 2.6 in replacement of any mutilated, destroyed, lost or stolen Note
shall constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(d) The provisions of this Section 2.6 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.8 Payments.
(a) On each Payment Date, upon receipt of written
instructions from the Servicer pursuant to Section 4.6(c) of the Sale and
Servicing Agreement, the Indenture Trustee shall withdraw the Total Available
Funds on deposit in the Collection Account for the related Collection Period and
make the following payments and deposits for such Payment Date in the following
order of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Note Payment Account, the Accrued
Note Interest for the Class A Notes;
(iii) to the Note Payment Account, the Accrued
Note Interest for the Class B Notes;
(iv) to the Note Payment Account, the Principal
Distribution Amount;
(v) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve Account up to the
Specified Reserve Balance; and
17
(vi) to the Certificate Distribution Account,
any remaining portion of Total Available Funds.
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default which has resulted in an acceleration of the
Notes, on each Payment Date the Total Available Funds shall be deposited in the
Note Payment Account and applied in accordance with Section 2.8(f).
(b) The principal of each Note shall be payable in
installments on each Payment Date in an aggregate amount (unless the Notes have
been accelerated in accordance with Section 5.2 following the occurrence of an
Event of Default) for all Classes of Notes equal to the Principal Distribution
Amount with respect to such Payment Date. On each Payment Date, unless the Notes
have been accelerated in accordance with Section 5.2 following the occurrence of
an Event of Default, the Issuer shall cause to be paid all amounts on deposit in
the Note Payment Account with respect to the related Collection Period in the
following order of priority:
(i) to the Class A Noteholders, Accrued Note
Interest (and, if amounts on deposit in the Note Payment Account are
insufficient for such purpose, payments shall be made to the to the
Class A Noteholders pro rata in proportion to the Accrued Note Interest
for each Class of Notes);
(ii) to the Class B Noteholders, Accrued Note
Interest;
(iii) to the Class A-1 Noteholders, 100% of the
Principal Distribution Amount in reduction of principal until the
principal amount of the Class A-1 Notes has been paid in full;
(iv) following payment in full of the Class A-1
Notes, to the Class A-2 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the
Class A-2 Notes has been paid in full;
(v) following payment in full of the Class A-2
Notes, to the Class A-3 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the
Class A-3 Notes has been paid in full;
(vi) following payment in full of the Class A-3
Notes, to the Class A-4 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the
Class A-4 Notes has been paid in full; and
18
(vii) following payment in full of the Class A-4
Notes, to the Class B Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the
Class B Notes has been 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 Final Payment Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid, will
be due on the Class A-2 Final Payment Date, the principal amount of the Class
A-3 Notes, to the extent not previously paid, will be due on the Class A-3 Final
Payment Date, the principal amount of the Class A-4 Notes, to the extent not
previously paid, will be due on the Class A-4 Final Payment Date and the
principal amount of the Class B Notes, to the extent not previously paid, will
be due on the Class B Final Payment Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall accrue interest at the
Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate and
the Class B Rate, respectively, and such interest shall be due and payable on
each Payment Date. Interest on the Class A-1 Notes shall be calculated on the
basis of the actual days elapsed and a 360-day year. Interest on the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months. Subject to
Section 3.1, any installment of interest or principal, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date by check mailed
first-class postage prepaid to such Person's address as it appears on the Note
Register on such Record Date; provided that, unless Definitive Notes have been
issued pursuant to Section 2.13, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment shall be made by wire transfer in immediately
available funds to the account designated by such nominee, and except for the
final installment of principal payable with respect to such Note on a Payment
Date or on the related Final Payment 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
19
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;
(ii) second, to the Servicer for amounts due and
unpaid in respect of Total Servicing Fees;
(iii) third, to Noteholders of each Class of the
Class A Notes, Accrued Note Interest ratably in proportion to Accrued
Note Interest for each Class of the Class A Notes, without preference
or priority of any kind, according to the amounts due and payable on
the Class A Notes for interest;
(iv) fourth, to the Class A-1 Noteholders, the
Class A-2 Noteholders, the Class A-3 Noteholders and the Class A-4
Noteholders, the outstanding principal amount of the Class A-1 Notes,
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;
(v) fifth, to the Class B Noteholders, Accrued
Note Interest;
(vi) sixth, to the Class B Noteholders, the
outstanding principal amount of the Class B Notes as of such Payment
Date (prior to giving effect to any payment of principal on such date)
in reduction of principal until the principal amount of the Class B
Notes has been paid in full; and
(vii) seventh, 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
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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;
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(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
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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.
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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:
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(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any
default by the Issuer (or any other obligor upon the Notes) of which it
has actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any
such default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust by
such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its appointment;
and
(v) comply with all requirements of the Code and
any state or local tax law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
(d) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Note and remaining unclaimed
for two (2) years after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (but only to the extent of the amounts so
paid to the Issuer), and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then
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remaining shall be repaid to the Issuer. The Indenture Trustee shall also adopt
and employ, at the expense and direction of the Issuer, any other reasonable
means of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have not
been surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect
its existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer shall from
time to time execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and shall take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust
Estate and the rights of the Indenture Trustee and the Noteholders in
such Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit C.
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(b) On or before March 31, in each calendar year, beginning in
2001, 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, rerecording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that shall, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 31 in the following calendar
year.
SECTION 3.7 Performance of Obligations; Servicing of
Receivables. (a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist
it in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the Administrator to
assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all
of its obligations and agreements contained in this Indenture, the Basic
Documents and in the instruments and agreements included in the Trust Estate,
including, but not limited to, filing or causing to be filed all financing
statements and continuation statements required to be filed under the Relevant
UCC by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of the Indenture Trustee or the Holders of at least
a majority of the principal amount of the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence
of an Event of Servicing Termination under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the action, if any, the Issuer is
taking in respect of such default. If an Event of Servicing Termination shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Sale and
27
Servicing Agreement with respect to the Receivables, the Issuer shall take all
reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall (subject to
the rights of the Indenture Trustee to direct such appointment pursuant to
Section 8.2 of the Sale and Servicing Agreement) appoint a successor servicer
(the "Successor Servicer"), and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been appointed or has
not accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee, without further action, shall automatically be
appointed the Successor Servicer. The Indenture Trustee may resign as the
Servicer by giving written notice of such resignation to the Issuer and in such
event shall be released from such duties and obligations, such release not to be
effective until the date a new servicer enters into a servicing agreement with
the Issuer as provided below. Upon delivery of any such notice to the Issuer,
the Issuer shall obtain a new servicer as the Successor Servicer under the Sale
and Servicing Agreement. Any Successor Servicer (other than the Indenture
Trustee) shall (i) be an established financial institution having a net worth of
not less than $50,000,000 and whose regular business includes the servicing of
automotive installment sale contracts and (ii) enter into a servicing agreement
with the Issuer having substantially the same provisions as the provisions of
the Sale and Servicing Agreement applicable to the Servicer. If, within thirty
(30) days after the delivery of the notice referred to above, the Issuer shall
not have obtained such a new servicer, the Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a Successor Servicer. In
connection with any such appointment, the Indenture Trustee may make such
arrangements for the compensation of such successor as it and such successor
shall agree, subject to the limitations set forth below and in the Sale and
Servicing Agreement, and in accordance with Section 8.2 of the Sale and
Servicing Agreement, the Issuer shall enter into an agreement with such
successor for the servicing of the Receivables (such agreement to be in form and
substance satisfactory to the Indenture Trustee). If the Indenture Trustee shall
succeed to the Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity as
Indenture Trustee and, accordingly, the provisions of Article VI hereof shall be
inapplicable to the Indenture Trustee in its duties as the successor to the
Servicer and the servicing of the Receivables. If the Indenture Trustee shall
become successor to the Servicer under the Sale and Servicing Agreement, the
Indenture Trustee shall be entitled to appoint as Servicer any one of its
Affiliates; provided that the Indenture Trustee, in its capacity as the
Servicer, shall be fully liable for the actions and omissions of such Affiliate
in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee. As soon as a Successor Servicer is appointed by the
Issuer, the Issuer shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
28
(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) dissolve or liquidate in whole or in part;
or
(iv) (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.
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 2001), an Officer's Certificate stating, as to the
Responsible Officer signing such Officer's Certificate, that:
29
(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 Issuer May Consolidate, etc., Only on Certain
Terms. (a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed
by or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of America
or any State and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of
the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
30
(b) Other than as specifically contemplated by the Basic
Documents, the Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of the United
States of America or any State, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agrees by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes,
(D) unless otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer against and
from any loss, liability or expense arising under or related to this
Indenture and the Notes, and (E) expressly agrees by means of such
supplemental indenture that such Person (or if a group of Persons, then
one specified Person) shall make all filings with the Commission (and
any other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
31
SECTION 3.11 Successor or Transferee. (a) Upon any
consolidation or merger of the Issuer in accordance with Section 3.10(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Indenture Trustee stating that the Issuer
is to be so released.
SECTION 3.12 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 3.13 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 3.14 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 4.11 and Article VII thereof.
SECTION 3.15 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 3.16 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 3.17 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.
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SECTION 3.18 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 3.19 Notice of Events of Default. The Issuer shall
give the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and of each default on the part of any party to the
Sale and Servicing Agreement or the Purchase Agreement with respect to any of
the provisions thereof.
SECTION 3.20 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. 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, 3.10, 3.12 and 3.13 hereof, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Section 4.3), and (vi) the rights of Noteholders as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when either:
(A) all Notes of all Classes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed, lost or
stolen and that have been
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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:
(2) 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 Final Payment Date
or Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.1(a)), as the case may be;
(3) the Issuer has paid or caused to be paid all other sums
payable by the Issuer hereunder and under the other Basic
Documents;
(4) 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; and
(5) 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.
SECTION 4.2 Satisfaction, Discharge and Defeasance 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:
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(i) the rights of Holders of Notes to receive,
from the trust funds described in subsection (b)(i) hereof, payment of
the principal of and interest on the Notes Outstanding at maturity of
such principal or interest;
(ii) the obligations of the Issuer with respect
to the Notes under Sections 2.5, 2.6, 3.2 and 3.3 hereof;
(iii) the obligations of the Issuer to the
Indenture Trustee under Section 6.7 hereof; and
(iv) the rights, powers, trusts and immunities
of the Indenture Trustee hereunder and the duties of the Indenture
Trustee hereunder.
(b) The satisfaction, discharge and defeasance of the Notes
pursuant to subsection (a) of this Section 4.2 is subject to the satisfaction of
all of the following conditions:
(i) the Issuer has deposited or caused to be
deposited irrevocably (except as provided in Section 4.4 hereof) with
the Indenture Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Notes, which, through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later
than one day prior to the due date of any payment referred to below,
money in an amount sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Indenture Trustee,
to pay and discharge the entire indebtedness on the Notes Outstanding,
for principal thereof and interest thereon to the date of such deposit
(in the case of Notes that have become due and payable) or to the
maturity of such principal and interest, as the case may be;
(ii) such deposit will not result in a breach or
violation of, or constitute an event of default under, any other
agreement or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such deposit
or on the ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that the satisfaction,
discharge and defeasance 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
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(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 defeasance
contemplated by this Section 4.2 have been complied with.
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 (5) days or more; or
(ii) default in the payment of the principal of
or any installment of the principal of any Note when the same becomes
due and payable, including with respect to each Class of Notes, the
Final Payment Date for such Class; or
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(iii) default in the observance or performance
of any material covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section 5.1
specifically dealt with), or any representation or warranty of the
Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have
been incorrect in any material respect as of the time when the same
shall have been made, and such default shall continue or not be cured,
or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of sixty (60) days or in
the case of a materially incorrect representation and warranty thirty
(30) days, after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer
and the Indenture Trustee by the Holders of not less than 25% of the
principal amount of the Notes Outstanding, a written notice specifying
such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of Default
hereunder; or
(iv) the filing of a decree or order for relief
by a court having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Trust Estate in an involuntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and
such decree or order shall remain unstayed and in effect for a period
of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a
voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Issuer to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or the making
by the Issuer of any general assignment for the benefit of creditors,
or the failure by the Issuer generally to pay its debts as such debts
become due, or the taking of any action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any Default which with the giving of notice and the lapse of time would
become an Event of Default under clause (iii), its status and what action the
Issuer is taking or proposes to take with respect thereto.
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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.
(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 (5) days, or (ii)
there is a default in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable, the Issuer shall,
upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the
benefit of the Holders of the Notes, the whole amount then due and payable on
the Notes for principal and interest, with interest upon the overdue principal
at the applicable Note Interest Rate and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest at
the applicable
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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) and of the
Noteholders allowed in such Proceedings;
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(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 Holder thereof or 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.
40
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 monies
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 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) 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).
(c) The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section 5.4. At least
fifteen (15) days before such record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the record date, the
payment date and the amount to be paid.
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SECTION 5.5 Optional Preservation of the Receivables. 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 sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(e) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by the Holders
of a majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
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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
43
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust Estate shall
be by Holders of Notes representing not less than 100% of the principal amount
of the Notes Outstanding;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the principal amount of the Notes Outstanding to
sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.1, the Indenture Trustee need not take any action that it reasonably
believes might involve it in costs, expenses and liabilities for which it will
not be adequately indemnified or might materially adversely affect the rights of
any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration
of the acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding, voting as a group, may waive any past Default or Event
of Default and its consequences except a Default or Event of Default (a) in the
payment of principal of or interest on any of the Notes or (b) in respect of a
covenant or provision hereof that cannot be amended, supplemented or modified
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall
cease to exist and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been cured and
not to have occurred, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy
44
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(b).
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.
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(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, its own negligent failure to act or its
own willful misconduct, 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
47
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
48
Indenture Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney.
SECTION 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent hereunder may do the same
with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee (i) shall not be responsible for, and makes no representation, as to the
validity or adequacy of this Indenture or the Notes and (ii) shall not be
accountable for the Issuer's use of the proceeds from the Notes, or responsible
for any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of such Default
within ninety (90) days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by the
Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement containing
the information which is required to be expressed in the Payment Date statements
as a dollar amount per $1,000 of original denomination of the Notes or Class of
Notes, as applicable, aggregated for such calendar year, for the purposes of
such Noteholder's preparation of Federal income tax returns.
49
SECTION 6.7 Compensation and Indemnity. (a) The Issuer shall,
or shall cause the Administrator to, pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall, or shall cause the Administrator to, reimburse
the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall, or shall cause the Administrator to,
indemnify the Indenture Trustee against any and all loss, liability or expense
(including attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Administrator promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and
the Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to, defend
any such claim, and the Indenture Trustee may have separate counsel and the
Issuer shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Administrator need reimburse any expense or
indemnity against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
(b) The Issuer's payment obligations to the Indenture
Trustee pursuant to this Section 6.7 shall survive the resignation or removal of
the Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. (a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.8. The
Indenture Trustee may resign at any time by so notifying the Issuer. The Holders
of a majority in principal amount of the Notes Outstanding, voting as a group,
may remove the Indenture Trustee without cause by so notifying the Indenture
Trustee and the Issuer and 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;
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(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 sixty (60) days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, the Issuer or the Holders of a majority
in principal amount of the Notes Outstanding may petition any court of competent
jurisdiction to appoint a successor Indenture Trustee. If the Indenture Trustee
fails to comply with Section 6.11, any Noteholder may petition any court of
competent jurisdiction to remove the Indenture Trustee and to appoint a
successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section 6.8, the Issuer's and the Administrator's
obligations under Section 6.7 shall continue for the benefit of the retiring
Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies with prior written notice of
any such transaction.
(b) If at the time such successor or successors by
merger, conversion or consolidation to the Indenture Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Notes so authenticated, and if at that time any of the Notes shall not have
been authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any
51
predecessor hereunder or in the name of the successor to the Indenture Trustee.
In all such cases such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificate of the
Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate may at the time be located,
the Indenture Trustee shall have the power and may execute and deliver an
instrument to appoint one or more Persons to act as a co-trustee or co-trustees,
or separate trustee or separate trustees, of all or any part of the Trust
Estate, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Trust Estate, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee shall not be authorized to act
separately without the Indenture Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder;
and
(iii) the Indenture Trustee may at any time
remove or accept the resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or
52
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee as its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. (a) The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee or its parent shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition and shall have a long-term debt rating of investment grade by each of
the Rating Agencies or shall otherwise be acceptable to each of the Rating
Agencies. The Indenture Trustee shall comply with TIA Section 310(b).
(b) Within ninety (90) days after ascertaining the
occurrence of an Event of Default which shall not have been cured or waived,
unless authorized by the Commission, the Indenture Trustee shall resign with
respect to the Class A Notes and/or the Class B Notes in accordance with Section
6.8 of this Indenture, and the Issuer shall appoint a successor Indenture
Trustee for one or both of such Classes, as applicable, so that there will be
separate Indenture Trustees for the Class A Notes and the Class B Notes. In the
event the Indenture Trustee fails to comply with the terms of the preceding
sentence, the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA
Section 310(b).
(c) In the case of the appointment pursuant to this
Section 6.11 of a successor Indenture Trustee with respect to any Class of
Notes, the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee with respect to such Class of Notes shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture Trustee
with respect to the Notes of each Class as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the Indenture Trustee and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or
53
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 (5) days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the names
and addresses of the Holders of Notes as of such Record Date and (b) at such
other times as the Indenture Trustee may request in writing, within thirty (30)
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten (10) days prior to the time such list is
furnished; provided, however, that so long as (i) the Indenture Trustee is the
Note Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list
shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section
312(b) with other Noteholders with respect to their rights under this Indenture
or under the Notes.
54
(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA Section 312(c).
SECTION 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within
fifteen (15) days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with the rules and regulations prescribed from
time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described
in TIA Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.3(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal
year of the Issuer shall correspond to the calendar year.
SECTION 7.4 Reporting and Notices by Indenture Trustee. (a) If
required by TIA Section 313(a), within sixty (60) days after each March 31,
beginning with March 31, 2001, 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.
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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(c) and 4.1(d) 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
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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, 4.8, 4.9 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
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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 (7) days notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, except in connection
with any action contemplated by Section 8.4(b), as a condition to such action,
an Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of the
Noteholders in contravention of the provisions of this Indenture; provided,
however, that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. 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:
(a) 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;
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(b) 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;
(c) 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;
(d) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(e) 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;
(f) 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; or
(g) 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;
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.
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
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Indenture or modifying in any manner the rights of the Holders of the Notes
under this Indenture; provided, however, that (i) such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder, (ii) the Rating Agency Condition shall have been
satisfied with respect to such action and (iii) such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
Federal or any then Applicable Tax State income tax purposes as an association
taxable as a corporation or otherwise have any material adverse impact on the
Federal or any then Applicable Tax State income taxation of any Notes
Outstanding or outstanding Certificates or any Noteholder or Certificateholder;
and provided, further, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change any Final Payment 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
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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.
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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 twenty (20) days prior to the
Redemption Date and the Issuer shall deposit by 10:00 A.M. (New York City time)
on the Redemption Date with the Indenture Trustee in the Note Payment Account
the Redemption Price of the Notes to be redeemed, whereupon all such Notes shall
be due and payable on the Redemption Date.
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(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 4.8(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 ten (10) days prior to the applicable Redemption Date, to each
Holder of Notes as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Holder's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered
for payment of the Redemption Price (which shall be the office
or agency of the Issuer to be maintained as provided in
Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer; provided, that in the case
of a redemption pursuant to Section 10.1(b), 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.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section 11.1, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within ninety (90) days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
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(ii) Whenever the Issuer is required to furnish
to the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the property or securities to be so deposited and of all
other such property or securities made the basis of any such withdrawal
or release since the commencement of the then-current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is ten percent (10%) or more of
the principal amount of the Notes Outstanding, but such a certificate
need not be furnished with respect to any property or securities so
deposited, if the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent (1%) of the principal amount of the Notes Outstanding.
(iii) Whenever any property or securities are to
be released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the
fair value (within ninety (90) days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish
to the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than property
as contemplated by clause (v) below or securities released from the
lien of this Indenture since the commencement of the then-current
calendar year, as set forth in the certificates required by clause
(iii) above and this clause (iv), equals ten percent (10%) or more of
the principal amount of the Notes Outstanding, but such certificate
need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent
(1%) of the principal amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other
provisions of this Section 11.1, the Issuer may, without compliance
with the requirements of the other provisions of this Section 11.1, (A)
collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles as and to the extent permitted or required by the
Basic Documents and (B) make cash payments out of the Trust Accounts as
and to the extent permitted or required by the Basic Documents.
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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
66
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:
(i) 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
(ii) 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 2000-2, in care of Wilmington Trust Company
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Department, with a copy to the
Administrator at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000,
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.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered, telecopied or mailed by certified mail, return receipt
requested, to (i) in the case of Moody's, at the following address: Xxxxx'x
Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and (ii) in case of S&P, at the following address: Standard &
Poor's Ratings
67
Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx (00xx
Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department.
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.
68
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.
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.
69
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 00 Xxxxxx Xxxxxx Code Section
1111(b)(1)(A)(i) to secured creditors to receive the treatment afforded by Title
00 Xxxxxx Xxxxxx 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
70
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.
71
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 2000-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:_____________________________________
Name:
Title:
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By:_____________________________________
Name:
Title:
SCHEDULE A
[Schedule of Receivables provided to
Indenture Trustee on Computer Tape,
Compact Disk or Microfiche]
SA-1
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
SI-1
EXHIBIT A-1
Form of Class A-1 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. [ ] CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2000-2
[ ]% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-1 Notes pursuant to Section 2.8 of the Indenture, dated
as of November 1, 2000 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-1 Note shall be due and payable on the earlier of the [ ] 2001 Payment Date
(the "Class A-1 Final Payment 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. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
A-1-1
The Issuer shall pay interest on this Class A-1 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-1 Note is paid or made available for payment, on the principal amount of
this Class A-1 Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Class A-1 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of the actual days elapsed and a
360-day year. Such principal of and interest on this Class A-1 Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Class A-1 Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-1 Note shall be applied first to
interest due and payable on this Class A-1 Note as provided above and then to
the unpaid principal of this Class A-1 Note.
Reference is made to the further provisions of this Class A-1
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-1 Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
Date: November [ ], 2000
MMCA AUTO OWNER TRUST 2000-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: ________________________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: ________________________________________
Responsible Officer
A-1-3
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 and the [ ]% Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-1 Notes are equal in right of payment to the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, and senior in right of
payment to the Class B Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-1 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [ ]15, 2000.
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 Final
Payment 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 the
outstanding principal amount of the Notes of all Classes have declared the Notes
to be immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-1 Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-1 Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class A-1 Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class A-1 Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-1 Note be submitted for notation
of payment. Any reduction in the principal amount of this Class A-1 Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class A-1
A-1-4
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.
A-1-5
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 XXXXX
00 XXXXXX XXXXXX 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
A-1-6
not this Class A-1 Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Class A Notes Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-1 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Note and of any Class A-1
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-1 Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-1 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal or of interest on this Class
A-1 Note or performance of, or omission to
A-1-7
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.
A-1-8
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.
X-0-0
XXXXXXX X-0
Form of Class A-2 Note
----------------------
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. [ ] CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2000-2
[ ]% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-2 Notes pursuant to Section 2.8 of the Indenture, dated
as of November 1, 2000 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the [ ] 2003 Payment Date
(the "Class A-2 Final Payment 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. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
A-2-1
The Issuer shall pay interest on this Class A-2 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-2 Note is paid or made available for payment, on the principal amount of
this Class A-2 Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Class A-2 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-2 Note shall be paid in
the manner specified on the reverse hereof.
The principal of and interest on this Class A-2 Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-2 Note shall be applied first to
interest due and payable on this Class A-2 Note as provided above and then to
the unpaid principal of this Class A-2 Note.
Reference is made to the further provisions of this Class A-2
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-2 Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
Date: November [ ], 2000
MMCA AUTO OWNER TRUST 2000-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: ____________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: ___________________________
Responsible Officer
A-2-3
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 and the [ ]% Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-2 Notes are equal in right of payment to the Class A-1
Notes, the Class A-3 Notes and the Class A-4 Notes, and senior in right of
payment to the Class B Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-2 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [ ] 15, 2000.
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 Final
Payment 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 the
outstanding principal amount of the Notes of all Classes have declared the Notes
to be immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-2 Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-2 Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class A-2 Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class A-2 Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-2 Note be submitted for notation
of payment. Any reduction in the principal amount of this Class A-2 Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class A-2
A-2-4
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.
A-2-5
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 XXXXX
00 XXXXXX XXXXXX 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
A-2-6
not this Class A-2 Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Class A Notes Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-2 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-2 Note and of any Class A-2
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-2 Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-2 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal or of interest on this Class
A-2 Note or performance of, or omission to
A-2-7
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.
A-2-8
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.
X-0-0
XXXXXXX X-0
Form of Class A-3 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. [ ] CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2000-2
[ ]% CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-3 Notes pursuant to Section 2.8 of the Indenture, dated
as of November 1, 2000 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the [ ] 2004 Payment Date
(the "Class A-3 Final Payment 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. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
A-3-1
The Issuer shall pay interest on this Class A-3 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-3 Note is paid or made available for payment, on the principal amount of
this Class A-3 Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Class A-3 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-3 Note shall be paid in
the manner specified on the reverse hereof.
The principal of and interest on this Class A-3 Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-3 Note shall be applied first to
interest due and payable on this Class A-3 Note as provided above and then to
the unpaid principal of this Class A-3 Note.
Reference is made to the further provisions of this Class A-3
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-3 Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
Date: November [ ], 2000
MMCA AUTO OWNER TRUST 2000-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: ___________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: ___________________________
Responsible Officer
A-3-3
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 and the [ ]% Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-3 Notes are equal in right of payment to the Class A-1
Notes, the Class A-2 Notes and the Class A-4 Notes, and senior in right of
payment to the Class B Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-3 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [ ] 15, 2000.
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 Final
Payment 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 the
outstanding principal amount of the Notes of all Classes have declared the Notes
to be immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-3 Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-3 Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class A-3 Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class A-3 Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-3 Note be submitted for notation
of payment. Any reduction in the principal amount of this Class A-3 Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class A-3 Note and of any Class
A-3 Note issued upon the registration of transfer hereof or in exchange
A-3-4
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.
A-3-5
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 XXXXX
00 XXXXXX XXXXXX 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
A-3-6
not this Class A-3 Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Class A Notes Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-3 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-3 Note and of any Class A-3
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-3 Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-3 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal or of interest on this Class
A-3 Note or performance of, or omission to
A-3-7
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.
A-3-8
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.
X-0-0
XXXXXXX X-0
Form of Class A-4 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. [ ] CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2000-2
[ ]% CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-4 Notes pursuant to Section 2.8 of the Indenture, dated
as of November 1, 2000 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-4 Note shall be due and payable on the earlier of the [ ] 200[5] Payment Date
(the "Class A-4 Final Payment 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. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
A-4-1
The Issuer shall pay interest on this Class A-4 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-4 Note is paid or made available for payment, on the principal amount of
this Class A-4 Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Class A-4 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-4 Note shall be paid in
the manner specified on the reverse hereof.
The principal of and interest on this Class A-4 Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-4 Note shall be applied first to
interest due and payable on this Class A-4 Note as provided above and then to
the unpaid principal of this Class A-4 Note.
Reference is made to the further provisions of this Class A-4
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-4 Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-4-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
Date: November [ ], 2000
MMCA AUTO OWNER TRUST 2000-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: _________________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: ___________________________
Responsible Officer
A-4-3
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 and the [ ]% Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-4 Notes are equal in right of payment to the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, and senior in right of
payment to the Class B Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-4 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [ ] 15, 2000.
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 Final
Payment 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 the
outstanding principal amount of the Notes of all Classes have declared the Notes
to be immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class A-4 Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-4 Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class A-4 Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class A-4 Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-4 Note be submitted for notation
of payment. Any reduction in the principal amount of this Class A-4 Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class A-4 Note and of any Class
A-4 Note issued upon the registration of transfer hereof or in exchange
A-4-4
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.
A-4-5
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 XXXXX
00 XXXXXX XXXXXX 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
A-4-6
not this Class A-4 Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of all of the Notes Outstanding, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Class A Notes Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-4 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-4 Note and of any Class A-4
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-4 Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-4 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal or of interest on this Class
A-4 Note or performance of, or omission to
A-4-7
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.
A-4-8
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.
A-4-9
EXHIBIT B
Form of Class B Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. [ ] CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2000-2
[ ]% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class B Notes pursuant to Section 2.8 of the Indenture, dated
as of November 1, 2000 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class B
Note shall be due and payable on the earlier of the [ ] 200[5] Payment Date (the
"Class B Final Payment 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. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
B-1
The Issuer shall pay interest on this Class B Note at the rate
per annum shown above on each Payment Date until the principal of this Class B
Note is paid or made available for payment, on the principal amount of this
Class B Note outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on this
Class B Note will accrue for each Payment Date from and including the previous
Payment Date (or, in the case of the initial Payment Date or if no interest has
been paid, from the Closing Date) to but excluding such Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Class B Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Class B Note are payable
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class B Note shall be applied first to
interest due and payable on this Class B Note as provided above and then to the
unpaid principal of this Class B Note.
Reference is made to the further provisions of this Class B
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class B Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the date
set forth below.
Date: November [ ], 2000
MMCA AUTO OWNER TRUST 2000-2,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: _________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: _________________________
Responsible Officer
B-3
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 and the [ ]% Class
A-4 Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the Indenture. The
Class B Notes are subordinated in right of payment to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes as and to the
extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [ ] 15, 2000.
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 Final
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a). 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 the outstanding
principal amount of the Notes of all classes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class B Notes shall be made pro rata to
the Holders entitled thereto.
Payments of interest on this Class B Note due and payable on
each Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class B Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class B Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class B Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class B Note be submitted for notation
of payment. Any reduction in the principal amount of this Class B Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class B Note and of any Class B
Note issued upon the registration of transfer hereof or in exchange hereof or in
B-4
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.
B-5
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 a 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 XXXXX
00 XXXXXX XXXXXX 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
B-6
this Class B Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the all of the Notes Outstanding, voting as a group.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Notes Outstanding on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class B
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class B Note and of any Class B
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class B Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class B Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns shall be personally liable for, nor shall recourse be
had to any of them for, the payment of principal or of interest on this Class B
Note or performance of, or omission to perform,
B-7
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.
B-8
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.
B-9
EXHIBIT C
Form of Opinion of Counsel
--------------------------
Pursuant to Section 3.6(a)
--------------------------
________________
To the Addressees Indicated
on Schedule A hereto
Re: MMCA Auto Owner Trust 2000-2
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit
of America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto Receivables
Trust, a Delaware business trust ("MART"), in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of [ ] 1, 2000 (the
"Purchase Agreement"), between MMCA and MART, (ii) the Sale and Servicing
Agreement, dated as of [ ] 1, 2000 (the "Sale and Servicing Agreement"), by and
among MART, as seller, MMCA, as servicer, and MMCA Auto Owner Trust 2000-2, a
Delaware business trust (the "Trust"), as issuer, (iii) the Indenture, dated as
of [ ] 1, 2000 (the "Indenture"), between the Trust and Bank of Tokyo -
Mitsubishi Trust Company, as indenture trustee for the benefit of the Holders of
the Notes (the "Indenture Trustee"), and (iv) the Amended and Restated Trust
Agreement, dated as of [ ] 1, 2000 (THE "TRUST AGREEMENT"), BETWEEN MART AND
WILMINGTON TRUST COMPANY, AS OWNER TRUSTEE (THE "OWNER TRUSTEE"). CAPITALIZED
TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN
THE SALE AND SERVICING AGREEMENT.
PURSUANT TO THE PURCHASE AGREEMENT AND THE ASSIGNMENTS (AS
SUCH TERM IS DEFINED IN THE PURCHASE AGREEMENT) RELATED THERETO, MMCA PROPOSES
TO SELL TO MART ON THE CLOSING DATE AND FROM TIME TO TIME THEREAFTER DURING THE
PRE-FUNDING PERIOD, AND MART PROPOSES TO PURCHASE FROM MMCA, AMONG OTHER THINGS,
CERTAIN MOTOR VEHICLE RETAIL INSTALLMENT SALE CONTRACTS (COLLECTIVELY, THE
"RECEIVABLES") SECURED BY NEW AND USED AUTOMOBILES AND SPORTS-UTILITY VEHICLES
(COLLECTIVELY, THE "FINANCED VEHICLES"), CERTAIN MONIES DUE OR RECEIVED
THEREUNDER ON OR AFTER THE RELATED CUTOFF DATES, MMCA'S SECURITY INTERESTS IN
THE FINANCED VEHICLES,
The Addressees Indicated on
Schedule A hereto
Page 2
MMCA'S RIGHTS UNDER CERTAIN INSURANCE POLICIES, CERTAIN RIGHTS UNDER DEALER
AGREEMENTS RELATING TO THE RECEIVABLES AND CERTAIN OTHER PROPERTY RELATED TO THE
RECEIVABLES AND ALL THE PROCEEDS THEREOF. THE RECEIVABLES THAT MMCA PROPOSES TO
SELL TO MART ON THE CLOSING DATE, AND MART PROPOSES TO BUY FROM MMCA, ARE
REFERRED TO HEREIN AS THE "INITIAL RECEIVABLES".
PURSUANT TO THE SALE AND SERVICING AGREEMENT, MART WILL SELL
TO THE TRUST ALL OF ITS RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE
RECEIVABLES, CERTAIN MONIES DUE OR RECEIVED THEREUNDER ON OR AFTER THE RELATED
CUTOFF DATES, CERTAIN OTHER PROPERTY RELATING TO THE RECEIVABLES AND ALL
PROCEEDS THEREOF. THE TRUST WILL ISSUE (I) $[ ] PRINCIPAL AMOUNT OF [ ]% CLASS
A-1 ASSET BACKED NOTES, $[ ] PRINCIPAL AMOUNT OF [ ]% CLASS A-2 ASSET BACKED
NOTES, $[ ] PRINCIPAL AMOUNT OF [ ]% CLASS A-3 ASSET BACKED NOTES, $[ ]
PRINCIPAL AMOUNT OF [ ]% CLASS A-4 ASSET BACKED NOTES and $[ ] principal amount
of [ ]% Class B Asset Backed Notes (collectively, the "Notes") pursuant to the
Indenture for sale to the several underwriters named in the Underwriting
Agreement, dated _______, between MART and Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx
Xxxxx Barney"), as representative of the several underwriters; and (ii) the
Asset Backed Certificates (collectively, the "Certificates") pursuant to the
Trust Agreement for issuance to MART.
In our examination we have assumed the genuineness of all
signatures (including endorsements), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of MMCA and MART and their
officers and other representatives and of public officials.
In rendering the opinions set forth herein, we have examined
and relied on originals or copies, certified or otherwise identified to our
satisfaction, of the following:
(A) the Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Trust Agreement and the First-Tier Initial
Assignment (as such term is defined in the Purchase Agreement);
(B) a Certificate of MART, dated the date hereof, a copy
of which is at tached as Exhibit A hereto (the "MART Certificate");
The Addressees Indicated on
Schedule A hereto
Page 3
(C) an unfiled but signed copy of (i) a financing
statement naming "MMCA Auto Receivables Trust" as debtor, "MMCA Auto Owner Trust
2000-2" as secured party and "Bank of Tokyo-Mitsubishi Trust Company" as
Indenture Trustee as assignee and (ii) a financing statement naming "Chase
Manhattan Bank USA, N.A., as Trustee of MMCA Auto Receivables Trust," as debtor,
"MMCA Auto Owner Trust 2000-2" as secured party and "Bank of Tokyo - Mitsubishi
Trust Company, as Indenture Trustee" as assignee, which we understand will be
filed within ten (10) days of the transfer of the security interest in the
office of the Secretary of State of the State of California (such filing office,
the "Filing Office" and such financing statements, the "Financing Statements");
(D) the certified reports of the Filing Office as to
financing statements naming (i) "MMCA Auto Receivables Trust" as debtor and (ii)
"Chase Manhattan Bank USA, N.A., as Trustee of MMCA Auto Receivables Trust" as
debtor and on file in the Filing Office as of an effective date of ____________
(the "Search Reports");
(E) forms of motor vehicle retail installment sale
contracts (the "Form Contracts") attached as Annex A to the MART Certificate;
and
(F) such other agreements, certificates or documents as
we have deemed necessary or appropriate as a basis for the opinion set forth
below.
Unless otherwise indicated, references to the "UCC" shall
mean: (i) with respect to the validity of the security interests held by the
Trust and the Indenture Trustee, the Uniform Commercial Code as in effect on the
date hereof in the State of New York, (ii) with respect to the perfection and
the effect of perfection or non-perfection of the security interest of the Trust
in the Initial Receivables, the Uniform Commercial Code as in effect on the date
hereof in the State of California, and (iii) with respect to our opinion in
paragraph 1 below, the Uniform Commercial Code as in effect on the date hereof
in the States of New York and California.
We express no opinion as to the laws of any jurisdiction other
than (i) the laws of the State of New York and (ii) with respect to the security
interest opinions set forth in paragraphs 1, 2 and 3 herein, the UCC. References
to the "Applicable States" shall mean California and/or New York, as applicable.
The Addressees Indicated on
Schedule A hereto
________________
Page 4
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. Each Initial Receivable is a motor vehicle retail
installment sale contract that constitutes "chattel paper" as defined in Section
9-105 of the UCC.
2. The provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Trust, a valid security interest (as such
term is defined in Section 1-201 of the UCC) in MART's rights in the Initial
Receivables and proceeds thereof, which security interest if char acterized as a
transfer for security will secure payment of the Notes.
3. The Financing Statements are in appropriate form for filing
in the Filing Office under the UCC. Upon the filing of the Financing Statements
in the Filing Office, the secu rity interest in favor of the Trust in the
Initial Receivables and proceeds thereof will be perfected, and no other
security interest of any other creditor of MART's will be equal or prior to the
security interest of the Trust in the Initial Receivables and proceeds thereof.
4. The provisions of the Indenture are effective to create in
favor of the Indenture Trustee, a valid security interest in the Trust's rights
in the Initial Receivables and pro ceeds thereof to secure payment of the Notes.
Our opinions in paragraphs 1-4 above are subject to the
following qualifications:
(a) we have assumed that the Initial Receivables exist
and that MART has sufficient rights in the Initial Receivables for the security
interest of the Trust to attach, and that the Trust has sufficient rights in the
Initial Receivables for the security interest of the Indenture Trustee to
attach, and we express no opinion as to the nature or extent of MART's or the
Trust's rights in, or title to, any Initial Receivables;
(b) our security interest opinions are limited to Article
9 of the UCC, and therefore such opinions do not address (i) laws of
jurisdictions other than Applicable States, and of Applicable States except for
Article 9 of the UCC, (ii) collateral of a type not subject to Article 9 of the
UCC, and (iii) under Section 9-103 of the UCC, what law governs perfection of
the security interests granted in the collateral covered by this opinion. We
call to your attention that California has recently enacted SB 45 ("Revised
Article 9") which contains a revised version of Article 9 of
The Addressees Indicated on
Schedule A hereto
________________
Page 5
the Uniform Commercial Code with conforming and miscellaneous changes to other
articles of the Uniform Commercial Code. By its terms, SB 45 does not become
effective until July 1, 2001. The opinions expressed in paragraphs 1 and 3
herein are based solely on the Uniform Commercial Code in effect in the State of
California on the date hereof and we express no opinion as to the effect of
Revised Article 9 on the validity, perfection or priority of the security
interest of the Trust or the Indenture Trustee.
(c) we call to your attention that under the UCC, events
occurring subsequent to the date hereof may affect any security interest subject
to the UCC including, but not limited to, factors of the type identified in
Section 9-306 with respect to proceeds; Section 9-402 with respect to changes in
name, structure and corporate identity of the debtor; Section 9-103 with respect
to changes in the location of the collateral and the location of the debtor;
Section 9-316 with respect to subordination agreements; Section 9-403 with
respect to continuation statements; and Sections 9-307, 9-308 and 9-309 with
respect to subsequent purchasers of the collateral. In addition, actions taken
by a secured party (e.g., releasing or assigning the security interest,
delivering possession of the collateral to the debtor or another person and
voluntarily subordinating a security interest) may affect the validity,
perfection or priority of a security interest;
(d) we have assumed that each Initial Receivable is
substantially in the form of a Form Contract, and we have assumed that no
Initial Receivable is or will be credited to a securities account;
(e) we have assumed that there are no agreements between
MART or the Trust and any account debtor prohibiting, restricting or
conditioning the assignment of any portion of the Initial Receivables;
(f) we express no opinion with respect to the perfection
or priority of the security interest of the Indenture Trustee;
(g) we call to your attention that the security interest
of the Trust and the Indenture Trustee may be subject to the rights of account
debtors, claims and defenses of account debtors and the terms of agreements with
account debtors;
(h) we express no opinion regarding the security interest
of the Trust or the Indenture Trustee in any Initial Receivables consisting of
claims against any government or
The Addressees Indicated on
Schedule A hereto
________________
Page 6
governmental agency (including, without limitation, the United States of America
or any state thereof or any agency or department of the United States of America
or any state thereof);
(i) we express no opinion with respect to the Trust's or
Indenture Trustee's rights in and to any property which secures any Initial
Receivable;
(j) we express no opinion with respect to the priority of
the interest of the Trust in the Initial Receivables against any of the
following: ( pursuant to Section 9-301(1) of the UCC, a lien creditor or bulk
purchaser who attached or levied prior to the perfection of the security
interest of the Trust; ( pursuant to Section 9-301(4) of the UCC, a lien
creditor to the extent that provision limits the priority afforded future
advances; ( pursuant to Section 9-312(7) of the UCC, another secured creditor to
the extent that provision limits the priority afforded future advances; (
pursuant to Sections 9-103(1)(d) or (3)(e) and Section 9-312(1) of the UCC, a
security interest perfected under the laws of another jurisdiction to the extent
MART was located in such ju risdiction within four months prior to the date of
the perfection of the security interest of the Trust; ( pursuant to Section
9-312(3) and (4) of the UCC, a "purchase money security interest" as such term
is defined in Section 9-107 of the UCC; ( pursuant to Section 9-312(6) of the
UCC, another secured party with a perfected security interest in other property
of MART to the extent the Initial Receivables are proceeds of such other
creditor's property; ( pursuant to Sections 9-104, 9-113, 4-208 and 9-302(1) of
the UCC, another creditor not required to file a financing statement to perfect
its interest; and ( pursuant to Section 9-401(2) and (3) of the UCC, the
security interest of a creditor who filed a financing statement based on a prior
or incorrect location of MART or the Initial Receivables or use of the Initial
Receivables to the extent such other financing statement would be effective
under Section 9-401(2) or (3) of the UCC;
(k) we have assumed that no financing statement naming
"MMCA Auto Receivables Trust" or "Chase Manhattan Bank USA, N.A., as Trustee of
MMCA Auto Receivables Trust" as debtor was filed in the Filing Office between
the effective date of the Search Reports and the date of the filing of the
Financing Statements in the Filing Office;
(l) as used in paragraph 2, the term "security interest"
is used as defined in Section 1-201 of the UCC, which definition includes both
(i) an interest in chattel paper to secure payment and (ii) a sale of chattel
paper. In addition, we express no opinion whether or to what extent the transfer
pursuant to the Sale and Servicing Agreement will be characterized as a sale or
a transfer for security;
The Addressees Indicated on
Schedule A hereto
________________
Page 7
(m) we have assumed that (i) the Sale and Servicing
Agreement constitutes the legal, valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms and (ii) the
Indenture constitutes the legal, valid and binding obligation of the Indenture
Trustee and the Trust, enforceable against the Indenture Trustee and the Trust,
respectively, in accordance with its terms; and
(n) we call to your attention that in the case of the
issuance of distributions on, or proceeds of, the Initial Receivables, the
security interest of the Trust therein will be perfected only if possession
thereof is obtained or other appropriate action is taken in accordance with the
provisions of the UCC or other applicable law and, in the case of certain types
of distributions or proceeds, other parties such as holders in due course,
protected purchasers and buyers in the ordinary course of business may obtain
superior priority.
We call to your attention that, with respect to paragraphs
(a), (e), (j)(iv) and (k) of our qualifications set forth above, we have relied
upon representations and warranties of MART as to the assumptions therein.
This opinion is being furnished only to you and is solely for
your benefit in connection with the closing today under the Sale and Servicing
Agreement and is not to be used, circulated, quoted, relied upon or otherwise
referred to for any purpose without prior written consent in each instance.
Very truly yours,
Schedule A
----------
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Chase Manhattan Bank USA, N.A.
as Trustee
MMCA Auto Receivables Trust
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
MMCA Auto Owner Trust 2000-2
c/o Wilmington Trust Company, as
Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Wilmington Trust Company, as
Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Bank of Tokyo - Mitsubishi Trust Company
as Indenture Trustee
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representative of the several
Underwriters
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Standard & Poor's,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Exhibit A (to Opinion)
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of MMCA AUTO
RECEIVABLES TRUST ("MART"), does hereby certify as follows:
(2) No financing statements or other filings have been filed
naming MART as debtor or seller in any State of the United States of America to
perfect a sale, transfer or assignment of or lien, encumbrance, security
interest or other interest in, or which otherwise per tains to, the Initial
Receivables.
(3) At all times since the establishment of MART, MART has had
one place of business and it is and has been located in Cypress, California.
(4) At all times since the establishment of MART and on the
date hereof, MART has had a mailing address of X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000-0000.
(5) Attached hereto as Annex A are forms of motor vehicle
retail installment sales contracts used to create the Initial Receivables (the
"Form Contracts"), and each Initial Receivable is substantially in the form of a
Form Contract.
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Sale and Servicing Agreement,
dated as of [ ] 1, 2000, by and among MART, Mitsubishi Motors Credit of America,
Inc., as Servicer, and MMCA Auto Owner Trust 2000-2, as Trust, and accepted and
agreed to by Bank of Tokyo - Mitsubishi Trust Company, as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand this _____ day of _________,
2000.
MMCA AUTO RECEIVABLES TRUST
By:_____________________________
Name:
Title:
Annex A (to Opinion)
FORMS OF RETAIL INSTALLMENT SALES CONTRACT
Annex B (to Opinion)
CERTIFIED REPORT OF FILING OFFICE ON PRIOR FINANCING STATEMENTS
Annex A
[FORMS OF RETAIL INSTALLMENT SALE CONTRACT]
