EXHIBIT 4.2
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AMENDED AND RESTATED INDENTURE
between
MMCA AUTO OWNER TRUST 2001-3,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of August 8, 2002
___________________________
$222,000,000 2.470% Class A-1 Asset Backed Notes
$244,000,000 Floating Rate Class A-2 Asset Backed Notes
$437,000,000 Floating Rate Class A-3 Asset Backed Notes
$399,400,000 Floating Rate Class A-4 Asset Backed Notes
$98,440,000 Floating Rate Class B Asset Backed Notes
___________________________
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CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
------- -------
310 (a)(1).............................................................6.11
(a)(2).............................................................6.11
(a)(3).............................................................6.10
(a)(4)............................................................N.A.(2)
(a)(5).............................................................6.11
(b)...........................................................6.8; 6.11
(c)................................................................N.A.
311 (a)................................................................6.12
(b)................................................................6.12
(c)................................................................N.A.
312 (a)..................................................................7.1
(b)................................................................7.2
(c)................................................................7.2
313 (a)................................................................7.4
(b)(1).............................................................7.4
(b)(2).......................................................7.4; 11.5
(c)................................................................7.4
(d)................................................................7.3
314 (a)................................................................7.3
(b)..............................................................11.15
(c)(1)............................................................11.1
(c)(2)............................................................11.1
(c)(3)............................................................11.1
(d)...............................................................11.1
(e)...............................................................11.1
(f)...............................................................11.1
315 (a)................................................................6.1
(b)..........................................................6.5; 11.5
(c)................................................................6.1
(d)................................................................6.1
(e)................................................................5.13
316 (a) (last sentence).................................................1.1
(a)(1)(A)..........................................................5.11
(a)(1)(B)..........................................................5.12
(a)(2).............................................................N.A.
(b)................................................................5.7
(c)................................................................N.A
317 (a)(1).............................................................5.3
(a)(2).............................................................5.3
(b)................................................................3.3
318 (a)...............................................................11.7
___________________
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
(2) N.A. means Not Applicable.
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE............................................................3
Section 1.1 Definitions............................................................................3
Section 1.2 Incorporated by Reference of Trust Indenture Act......................................15
Section 1.3 Rules of Construction.................................................................16
ARTICLE II - THE NOTES...........................................................................................16
Section 2.1 Form..................................................................................16
Section 2.2 Execution, Authentication and Delivery................................................17
Section 2.3 Temporary Notes.......................................................................17
Section 2.4 Tax Treatment.........................................................................18
Section 2.5 Registration; Registration of Transfer and Exchange...................................18
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes............................................19
Section 2.7 Persons Deemed Owner..................................................................20
Section 2.8 Payments..............................................................................20
Section 2.9 Cancellation..........................................................................24
Section 2.10 Release of Collateral.................................................................25
Section 2.11 Book-Entry Notes......................................................................25
Section 2.12 Notices to Clearing Agency............................................................26
Section 2.13 Definitive Notes......................................................................26
Section 2.14 Authenticating Agents.................................................................26
ARTICLE III - COVENANTS..........................................................................................27
Section 3.1 Payment Covenant......................................................................27
Section 3.2 Maintenance of Office or Agency.......................................................27
Section 3.3 Money for Payments To Be Held in Trust................................................27
Section 3.4 Existence.............................................................................29
Section 3.5 Protection of Trust Estate............................................................29
Section 3.6 Opinions as to Trust Estate...........................................................30
Section 3.7 Performance of Obligations; Servicing of Receivables..................................30
Section 3.8 Negative Covenants....................................................................32
Section 3.9 Annual Statement as to Compliance.....................................................33
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust Assets............33
Section 3.11 No Other Business.....................................................................33
Section 3.12 No Borrowing..........................................................................33
Section 3.13 Servicer's Obligations................................................................33
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.....................................33
Section 3.15 Capital Expenditures..................................................................33
Section 3.16 Further Instruments and Acts..........................................................34
Section 3.17 Restricted Payments...................................................................34
Section 3.18 Notice of Events of Default...........................................................34
Section 3.19 Removal of Administrator..............................................................34
Section 3.20 Calculation Agent.....................................................................34
ARTICLE IV - SATISFACTION AND DISCHARGE..........................................................................35
Section 4.1 Satisfaction and Discharge of Indenture...............................................35
Section 4.2 Satisfaction and Discharge of the Notes...............................................36
Section 4.3 Application of Trust Money............................................................37
Section 4.4 Repayment of Monies Held by Paying Agent..............................................37
ARTICLE V - REMEDIES.............................................................................................38
Section 5.1 Events of Default.....................................................................38
Section 5.2 Acceleration of Maturity; Rescission and Annulment....................................39
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............40
Section 5.4 Remedies; Priorities..................................................................42
Section 5.5 Optional Preservation of the Receivables..............................................43
Section 5.6 Limitation of Suits...................................................................44
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest.................44
Section 5.8 Restoration of Rights and Remedies....................................................44
Section 5.9 Rights and Remedies Cumulative........................................................45
Section 5.10 Delay or Omission Not a Waiver........................................................45
Section 5.11 Control by Noteholders................................................................45
Section 5.12 Waiver of Past Default................................................................46
Section 5.13 Undertaking for Costs.................................................................46
Section 5.14 Waiver of Stay or Extension Laws......................................................46
Section 5.15 Action on Notes.......................................................................46
Section 5.16 Performance and Enforcement of Certain Obligations....................................47
ARTICLE VI - THE INDENTURE TRUSTEE...............................................................................48
Section 6.1 Duties of Indenture Trustee...........................................................48
Section 6.2 Rights of Indenture Trustee...........................................................49
Section 6.3 Individual Rights of Indenture Trustee................................................50
Section 6.4 Indenture Trustee's Disclaimer........................................................50
Section 6.5 Notice of Defaults....................................................................50
Section 6.6 Reports by Indenture Trustee to Holders...............................................51
Section 6.7 Compensation and Indemnity............................................................51
Section 6.8 Replacement of Indenture Trustee......................................................51
Section 6.9 Successor Indenture Trustee by Merger.................................................52
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....................53
Section 6.11 Eligibility; Disqualification.........................................................54
Section 6.12 Preferential Collection of Claims Against Issuer......................................55
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.................................55
Section 6.14 Interest Rate Swap Provisions.........................................................55
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING......................................................................58
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders................58
Section 7.2 Preservation of Information; Communications to Noteholders............................58
Section 7.3 Reporting by Issuer...................................................................58
Section 7.4 Reporting and Notices by Indenture Trustee............................................59
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..............................................................59
Section 8.1 Collection of Money...................................................................59
Section 8.2 Trust Accounts........................................................................59
Section 8.3 General Provisions Regarding Accounts.................................................60
Section 8.4 Release of Trust Estate...............................................................61
Section 8.5 Opinion of Counsel....................................................................61
ARTICLE IX - SUPPLEMENTAL INDENTURES.............................................................................61
Section 9.1 Supplemental Indentures Without Consent of Noteholders................................61
Section 9.2 Supplemental Indentures with Consent of Noteholders...................................63
Section 9.3 Execution of Supplemental Indentures..................................................65
Section 9.4 Effect of Supplemental Indenture......................................................65
Section 9.5 Conformity with Trust Indenture Act...................................................66
Section 9.6 Reference in Notes to Supplemental Indentures.........................................66
ARTICLE X - REDEMPTION OF NOTES..................................................................................66
Section 10.1 Redemption............................................................................66
Section 10.2 Form of Redemption Notice.............................................................66
Section 10.3 Notes Payable on Redemption Date......................................................67
ARTICLE XI - MISCELLANEOUS.......................................................................................67
Section 11.1 Compliance Certificates and Opinions, etc.............................................67
Section 11.2 Form of Documents Delivered to Indenture Trustee......................................69
Section 11.3 Acts of Noteholders...................................................................70
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.......................70
Section 11.5 Notices to Noteholders; Waiver........................................................72
Section 11.6 Alternate Payment and Notice Provisions...............................................73
Section 11.7 Conflict with Trust Indenture Act.....................................................73
Section 11.8 Effect of Headings and Table of Contents..............................................73
Section 11.9 Successors and Assigns................................................................73
Section 11.10 Separability..........................................................................73
Section 11.11 Benefits of Indenture.................................................................73
Section 11.12 Legal Holiday.........................................................................74
Section 11.13 Governing Law.........................................................................74
Section 11.14 Counterparts..........................................................................74
Section 11.15 Recording of Indenture................................................................74
Section 11.16 Trust Obligation......................................................................74
Section 11.17 No Petition; Subordination; Claims Against Seller.....................................74
Section 11.18 Inspection............................................................................75
Section 11.19 Employee Benefit Plans................................................................75
SCHEDULES
SCHEDULE A Schedule of Receivables
SCHEDULE I List of Permitted Investments
EXHIBITS
EXHIBIT A-1 Form of Class A-1 Note EXHIBIT A-2 Form of Class A-2 Note
EXHIBIT A-3 Form of Class A-3 Note EXHIBIT A-4 Form of Class A-4 Note
EXHIBIT B Form of Class B Note
EXHIBIT C Form of Opinion of Counsel Pursuant to Section 3.6(a)
AMENDED AND RESTATED INDENTURE, dated as of August 8, 2002 (this
"Indenture"), amending and restating in its entirety the INDENTURE, dated
as of October 1, 2001, between MMCA AUTO OWNER TRUST 2001-3, a Delaware
business trust (the "Issuer"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
a New York banking corporation, as trustee for the benefit of the
Noteholders and as agent for the Swap Counterparties, and not in its
individual capacity (in such capacity, the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Indenture Trustee are parties to an
Indenture, dated as of October 1, 2001 (the "Original Indenture");
WHEREAS, the pursuant to Section 1.1(b) of the Original Indenture,
capitalized terms used but not otherwise defined therein have the
respective meanings set forth in, or incorporated by reference into, the
Sale and Servicing Agreement, dated as of October 1, 2001, by and among the
Issuer, the Seller and the Servicer (the "Original Sale and Servicing
Agreement");
WHEREAS, the Original Sale and Servicing Agreement has been
amended and restated, effective the date hereof by the parties thereto;
WHEREAS, the Issuer desires to amend and restate the Original
Indenture pursuant to Section 9.1(a) thereof to incorporate by reference
the defined terms in the amended and restated Sale and Servicing Agreement;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, the Indenture Trustee is willing to enter into this
Indenture;
NOW, THEREFORE, for and in consideration of the premises and the
receipt of the Notes by the Noteholders, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Noteholders, that
the Indenture be amended and restated in its entirety as follows:
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuer's 2.470% Class
A-1 Asset Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3 Asset Backed
Notes (the "Class A-3 Notes"), Floating Rate Class A-4 Asset Backed Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Class A Notes") and Floating Rate Class B Asset
Backed Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes") and the Swap Counterparties:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing
Date, as Indenture Trustee for the benefit of the Holders of the Notes and the
Swap Counterparties, all of the Issuer's right, title and interest in, to and
under, whether now owned or existing or hereafter acquired or arising (a) the
Receivables; (b) with respect to Actuarial Receivables, monies due thereunder
after the Cutoff Date (including Payaheads) and, with respect to Simple
Interest Receivables, monies received thereunder after the Cutoff Date; (c)
the security interests in the Financed Vehicles granted by Obligors pursuant
to the Receivables and any other interest of the Issuer in the Financed
Vehicles; (d) all rights to receive proceeds with respect to the Receivables
from claims on any physical damage, theft, credit life or disability insurance
policies covering the Financed Vehicles or Obligors; (e) all rights to receive
proceeds with respect to the Receivables from recourse to Dealers thereon
pursuant to the Dealer Agreements; (f) all rights to the Receivable Files; (g)
the Trust Accounts and all amounts, securities, financial assets, investments
and other property deposited in or credited to any of the foregoing and all
proceeds thereof; (h) all rights under the Sale and Servicing Agreement and
the Yield Supplement Agreement; (i) all rights under the Purchase Agreement,
including the right of the Seller to cause MMCA to repurchase Receivables from
the Seller; (j) all payments and proceeds with respect to the Receivables held
by the Servicer; (k) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Issuer pursuant to the terms of a Final Payment Receivable),
guarantees and other collateral securing a Receivable (other than a Receivable
purchased by the Servicer or repurchased by the Seller); (l) all rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; (m) all of the
Issuer's rights in the Interest Rate Swap Agreements; and (n) all present and
future claims, demands, causes of action and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing (collectively, the "Initial Collateral").
The Issuer hereby Grants to the Indenture Trustee on each Subsequent
Transfer Date, as Indenture Trustee for the benefit of the Holders of the
Notes and the Swap Counterparties, all of the Issuer's right title and
interest in, to and under, whether now owned or existing or hereafter acquired
or arising: (a) the Subsequent Receivables listed on Schedule A to the related
Second-Tier Subsequent Assignment; (b) with respect to the Subsequent
Receivables that are Actuarial Receivables, monies due thereunder on or after
the related Subsequent Cutoff Date (including Payaheads) and, with respect to
Subsequent Receivables that are Simple Interest Receivables, monies received
thereunder on or after the related Subsequent Cutoff Date; (c) the security
interests in Financed Vehicles granted by Obligors pursuant to the Subsequent
Receivables and any other interest of the Seller in such Financed Vehicles;
(d) all rights to receive proceeds with respect to such Subsequent Receivables
from claims on any physical damage, theft, credit life or disability insurance
policies covering the related Financed Vehicles or related Obligors; (e) all
rights to receive proceeds with respect to such Subsequent Receivables from
recourse to Dealers thereon pursuant to Dealer Agreements; (f) all rights to
the Receivable Files that relate to such Subsequent Receivables; (g) all
payments and proceeds with respect to such Subsequent Receivables held by the
Servicer; (h) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Issuer pursuant to the terms of a Subsequent Receivable that
is a Final Payment Receivable), guarantees and other collateral securing a
Subsequent Receivable (other than a Subsequent Receivable purchased by the
Servicer or repurchased by the Seller); (i) all of the Seller's rights under
the related First Tier Subsequent Assignment; (j) all rebates of premiums and
other amounts relating to insurance policies and other items financed under
such Subsequent Receivables in effect as of the related Subsequent Cutoff
Date; and (k) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any of the foregoing
(collectively, and along with the Initial Collateral, the "Collateral").
The foregoing Grant is made in trust to secure (a) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture, and (b) the payment of amounts payable to the Swap
Counterparties under the Interest Rate Swap Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders
of the Notes and the Swap Counterparties, acknowledges such Grant, accepts the
trusts under this Indenture in accordance with the provisions of this
Indenture and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Holders of the Notes
and the Swap Counterparties may be adequately and effectively protected.
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. (a) Except as otherwise specified herein or
as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Accrued Note Interest" shall mean, with respect to any Payment Date
and each Class of Notes, the sum of the Monthly Accrued Note Interest and the
Interest Carryover Shortfall for such Class for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a).
"Administration Agreement" shall mean the Administration Agreement,
dated as of October 1, 2001, by and among the Administrator, the Issuer and
the Indenture Trustee, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of America, Inc.,
a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Authenticating Agent" shall have the meaning specified in Section
2.14.
"Basic Documents" shall mean this Indenture, the Certificate of
Trust, the Trust Agreement, the Assignments (as defined in the Purchase
Agreement), the Sale and Servicing Agreement, the Purchase Agreement, the
Administration Agreement, the Note Depository Agreement, the Interest Rate
Swap Agreements, the Yield Supplement Agreement, the Control Agreement and
other documents and certificates delivered in connection therewith as the same
may from time to time be amended, supplemented or otherwise modified and in
effect.
"Book-Entry Notes" shall mean a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions or trust companies in New York, New York,
Wilmington, Delaware or Los Angeles, California are authorized or obligated by
law, regulation or executive order to be closed.
"Calculation Agent" shall have the meaning specified in Section 3.20.
"Certificate of Trust" shall mean the certificate of trust of the
Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Class" shall mean a class of Notes, which may be the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes or the
Class B Notes.
"Class A Interest Rate Swap Agreements" shall mean the interest rate
swap agreement relating to the Class A-2 Interest Rate Swap, the interest rate
swap agreement relating to the Class A-3 Interest Rate Swap and the interest
rate swap agreement relating to the Class A-4 Interest Rate Swap, including
all schedules and confirmations thereto, between the Issuer and the related
Swap Counterparty, as the same may be amended, supplemented, renewed, extended
or replaced from time to time, which agreements provide for payments on
notional amounts equal to the outstanding principal balance of the Class A-2
Notes, the Class A-3 Notes or the Class A-4 Notes, as the case may be.
"Class A Interest Rate Swaps" shall mean the Class A-2 Interest Rate
Swap, the Class A-3 Interest Rate Swap and the Class A-4 Interest Rate Swap.
"Class A Noteholder" shall mean the Person in whose name a Class A
Note is registered in the Note Register.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A Percentage" shall mean approximately 91.65%, calculated as
the percentage equivalent of a fraction the numerator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, and the denominator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes and the Class B Notes, however, in the event
that after the Class A-1 Notes have been paid in full, the amount on deposit
in the Reserve Account on any Payment Date falls to less than 1.00% of the
Initial Adjusted Pool Balance, the Class A Percentage shall be 100% and the
Class A Percentage will thereafter remain at 100% even if the amount on
deposit in the Reserve Account subsequently increases to more than 1.00% of
the Initial Adjusted Pool Balance.
"Class A Swap Termination Payments" shall mean any termination
payment payable by the Issuer to a Swap Counterparty or by a Swap Counterparty
to the Issuer under a Class A Interest Rate Swap Agreement.
"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 $222,000,000 aggregate initial
principal amount of 2.470% 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 2.470% per annum.
"Class A-1 Stated Maturity Date" shall mean the October 2002 Payment
Date.
"Class A-2 Interest Rate Swap" shall mean the interest rate swap as
to the Class A-2 Notes with The Chase Manhattan Bank, as Swap Counterparty, to
hedge the floating interest Class A-2 Rate.
"Class A-2 Noteholder" shall mean the Person in whose name a Class
A-2 Note is registered on the Note Register. Class A-2 Notes" shall mean the
$244,000,000 aggregate initial principal amount of Floating Rate 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.
"Class A-2 Rate" shall mean one-month LIBOR plus 0.18%.
"Class A-2 Stated Maturity Date" shall mean the May 2004 Payment Date.
"Class A-3 Interest Rate Swap" shall mean the interest rate swap as
to the Class A-3 Notes with The Chase Manhattan Bank, as Swap Counterparty, to
hedge the floating interest Class A-3 Rate.
"Class A-3 Noteholder" shall mean the Person in whose name a Class
A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $437,000,000 aggregate initial
principal amount of Floating Rate 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 one-month LIBOR plus 0.25%.
"Class A-3 Stated Maturity Date" shall mean the February 2006 Payment
Date.
"Class A-4 Interest Rate Swap" shall mean the interest rate swap as
to the Class A-4 Notes with The Chase Manhattan Bank, as Swap Counterparty, to
hedge the floating interest Class A-4 Rate.
"Class A-4 Noteholder" shall mean the Person in whose name a Class
A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $399,400,000 aggregate initial
principal amount of Floating Rate 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 one-month LIBOR plus 0.30%.
"Class A-4 Stated Maturity Date" shall mean the April 2007 Payment
Date.
"Class B Interest Rate Swap" shall mean the interest rate swap as to
the Class B Notes with The Chase Manhattan Bank, as Swap Counterparty, to
hedge the floating interest Class B Rate.
"Class B Interest Rate Swap Agreement" shall mean the interest rate
swap agreement relating to the Class B Interest Rate Swap, including all
schedules and confirmations thereto, between the Issuer and the related Swap
Counterparty, as the same may be amended, supplemented, renewed, extended or
replaced from time to time, which agreement provides for payments on notional
amounts equal to the outstanding principal balance of the Class B Notes.
"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 $98,4440,000 aggregate initial
principal amount of Floating Rate Class B Asset Backed Notes issued by the
Issuer pursuant to this Indenture, substantially in the form of Exhibit B to
this Indenture.
"Class B Percentage" shall mean approximately 8.35%, calculated as
the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class B Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and
the Class B Notes, however, in the event that after the Class A-1 Notes have
been paid in full, the amount on deposit in the Reserve Account on any Payment
Date falls to less than 1.00% of the Initial Adjusted Pool Balance, the Class
B Percentage shall be 0% and the Class B Percentage will thereafter remain at
0% even if the amount on deposit in the Reserve Account subsequently increases
to more than 1.00% of the Initial Adjusted Pool Balance.
"Class B Rate" shall mean one-month LIBOR plus 0.95%.
"Class B Stated Maturity Date" shall mean the November 2008 Payment
Date.
"Class B Swap Termination Payment" shall mean any termination payment
payable by the Issuer to a Swap Counterparty or by a Swap Counterparty to the
Issuer under the Class B Interest Rate Swap Agreement.
"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 October 12, 2001.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations, including proposed or temporary
regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause
of this Indenture.
"Commission" shall mean the Securities and Exchange Commission.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of October 1, 2001, by and among the Seller, the Issuer,
the Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust Company
in its capacity as a securities intermediary, as the same may from time to
time be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered, which office at date of execution of this Indenture is
located at 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 Scheduled Maturity Date" shall mean with respect to any
Receivable, October 31, 2008.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to 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.
"Index Maturity" shall mean one month.
"Interest Accrual Period" shall mean, with respect to any Payment
Date, the period from and including the preceding Payment Date through the day
preceding the Payment Date; provided, that for the first Payment Date, the
"Interest Accrual Period" shall mean the period from and including the Closing
Date through November 15, 2001.
"Interest Carryover Shortfall" shall mean, with respect to any
Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually
deposited in the Note Payment Account on such preceding Payment Date with
respect to such Class, plus interest on such excess, to the extent permitted
by law, at the applicable Note Interest Rate for the related Interest Accrual
Period.
"Interest Rate Swap Agreements" shall mean the Class A Interest Rate
Swap Agreements and the Class B Interest Rate Swap Agreement. Each Interest
Rate Swap Agreement shall provide that a termination event will occur under
the circumstances described in Section 6.14(g) herein.
"Interest Reset Date" means, with respect to the floating rate Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes and the Class B Notes, the first
day of the applicable Interest Accrual Period.
"Issuer" shall mean MMCA Auto Owner Trust 2001-3, unless a successor
replaces it and, thereafter, means the successor and for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" and "Issuer Request" shall mean a written order or
request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"LIBOR" shall mean the London Interbank Offered Rate for U.S. dollar
deposits for each Interest Accrual Period as determined by the Calculation
Agent, as follows:
(1) On or as of the LIBOR Determination Date, the Calculation Agent
will obtain the rate for deposits in U.S. dollars for a period of
the Index Maturity, commencing on such Interest Reset Date, which
appears on the Telerate Page 3750, as of 11:00 a.m., London time,
on such LIBOR Determination Date.
(2) If the Calculation Agent determines that Telerate Page 3750 or
such page as may replace Telerate Page 3750 is not available on
such LIBOR Determination Date, the Calculation Agent will request
the principal London offices of each of four major banks in the
London interbank market selected by such Calculation Agent to
provide such Calculation Agent with its offered quotations for
deposits in U.S. dollars for a period of the Index Maturity,
commencing on such Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 a.m., London time,
on such LIBOR Determination Date and in a principal amount equal
to an amount of not less than U.S.$1,000,000 that is
representative of a single transaction in such market at such
time. If at least two such quotations are provided, LIBOR for
such Interest Accrual Period will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR
for such Interest Accrual Period will be the arithmetic mean of
rates quoted by three major banks in the city of New York
selected by the Calculation Agent for such LIBOR Security at
approximately 11:00 a.m., New York City time, on the first day of
such Interest Accrual Period for loans in U.S. dollars to leading
European banks, for the period of the specified Index Maturity,
commencing on such Interest Reset Date, and in a principal amount
equal to an amount of not less than U.S.$1,000,000 that is
representative of a single transaction in such market at such
time; provided, however, that if the banks selected as aforesaid
by such Calculation Agent are not quoting rates as mentioned in
this sentence, LIBOR for such Interest Accrual Period will be the
same as LIBOR for the immediately preceding Interest Accrual
Period;
provided, however, that LIBOR with respect to interest accrued
from the Closing Date until the first Payment Date shall be equal
to 2.53125%.
"LIBOR Determination Date" shall mean the second London and New York
Banking Day prior to the Interest Reset Date for the related Interest Accrual
Period.
"LIBOR Security" shall mean a Class A-2 Note, a Class A-3 Note, a
Class A-4 Notes or a Class B Note.
"London and New York Banking Day" shall mean any business day on
which dealings in deposits in United States dollars are transacted in the
London and New York interbank markets.
"MART Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of October 1, 1999, between MMCA, as beneficiary, and
Chase Manhattan Bank USA, N.A., a national banking association (as successor
to Chase Manhattan Bank Delaware), as trustee, relating to the Seller, as from
time to time amended, supplemented or otherwise modified and in effect.
Monthly Accrued Note Interest" shall mean, with respect to any
Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class on
the aggregate principal amount of the Notes of such Class as of the
immediately preceding Payment Date, after giving effect to all payments of
principal to Noteholders on or prior to such preceding Payment Date (or, in
the case of the first Payment Date, the initial principal amount of the
Notes); and (ii) with respect to the Notes collectively, the sum of Monthly
Accrued Note Interest for each Class.
"Net Swap Payment" shall mean, with respect to any Swap Counterparty
on any Payment Date, the net amount, if any, then payable by the Issuer to
such Swap Counterparty, excluding any Swap Termination Payments.
"Net Swap Receipt" shall mean, with respect to any Swap Counterparty
on any Payment Date, the net amount, if any, then payable by such Swap
Counterparty to the Issuer, excluding any Swap Termination Payments.
"Note Depository Agreement" shall mean the agreement dated as of
October 12, 2001, among the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company, as the initial Clearing Agency, relating to
the Notes.
"Note Interest Rate" shall mean, in the case of the Class A-1 Notes,
the Class A-1 Rate, in the case of the Class A-2 Notes, the Class A-2 Rate, in
the case of the Class A-3 Notes, the Class A-3 Rate, in the case of the Class
A-4 Notes, the Class A-4 Rate, and in the case of the Class B Notes, the Class
B Rate.
"Note Owner" shall mean, with respect to any Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant
or as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a).
"Noteholders" shall mean the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and the
Class B Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes, collectively.
"Officer's Certificate" shall mean a certificate signed by any
Responsible Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference
in this Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Responsible Officer of the Issuer.
"Opinion of Counsel" shall mean one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Issuer, MMCA or the Servicer and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with the
applicable requirements of Section 11.1, and shall be in form and substance
satisfactory to the Indenture Trustee.
"Original Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of October 1, 2001, by and among the Issuer, the
Seller and the Servicer.
"Outstanding" shall mean, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for
the Holders of such Notes (provided, however, that if such
Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision for such
notice has been made, satisfactory to the Indenture
Trustee); and
(iii) Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Notes are held by a protected purchaser;
provided, that in determining whether the Holders of the requisite
principal amount of the Notes Outstanding have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, the Seller, the Servicer or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
on any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount of all
Notes Outstanding at the date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, or any successor Owner Trustee under the
Trust Agreement.
"Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account and the Note Payment Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" shall mean the 15th day of each month, or if any such
day is not a Business Day, the immediately following Business Day, commencing
November 15, 2001.
"Plan" shall mean an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Predecessor Note" shall mean, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any
Note authenticated and delivered under Section 2.6 in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as
the mutilated, lost, destroyed or stolen Note.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency" shall mean Xxxxx'x, S&P or Fitch, and together, the
"Rating Agencies." If no such organization or successor is any longer in
existence, "Rating Agency" shall be a nationally recognized statistical rating
organization or other comparable Person designated by the Issuer, notice of
which designation shall be given to the Indenture Trustee, the Owner Trustee
and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have been given prior written notice thereof and
that each of the Rating Agencies shall have notified the Seller, the Servicer,
the Indenture Trustee and the Owner Trustee that such action shall not result
in a reduction or withdrawal of the then current rating assigned to any Class
of Notes.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or,
(ii) for any Definitive Notes that have been issued pursuant to Section 2.13,
the fifteenth (15th) day of the preceding month, unless such fifteenth (15th)
day is not a Business Day, in which case the immediately preceding Business
Day.
"Redemption Date" shall mean (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 4.11(b) of the Sale and Servicing Agreement.
"Redemption Price" shall mean (a) in the case of a redemption of
Notes pursuant to Section 10.1(a), 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 4.11(b) of the Sale and Servicing Agreement and (y) the
amount specified in clause (a) above.
"Registered Holder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" shall mean, (a) with respect to the Issuer, any
officer of the Owner Trustee who is authorized to act for or on behalf of the
Owner Trustee in matters relating to the Issuer and who is identified on the
list of Responsible Officers delivered by the Owner Trustee to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) and, for so long as the Administration Agreement is
in full force and effect, any officer of the Administrator who is authorized
to act for the Administrator in matters relating to the Issuer and to be acted
upon by the Administrator pursuant to the Administration Agreement and (b)
with respect to the Indenture Trustee, any officer within the Corporate Trust
Office of the Indenture Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" shall mean the Amended and Restated
Sale and Servicing Agreement, dated as of August 8, 2002, by and among the
Issuer, the Seller and the Servicer, amending and restating the Original Sale
and Servicing Agreement, as such Sale and Servicing Agreement shall from time
to time be amended, supplemented or otherwise modified and in effect.
"Securities" shall have the meaning specified in the MART Trust
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall mean MMCA Auto Receivables Trust, a Delaware business
trust, in its capacity as seller under the Sale and Servicing Agreement, and
its successors-in-interest.
"Servicer" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, in its capacity as servicer under the Sale and Servicing
Agreement, and any successor Servicer thereunder.
"SFAS 140" shall mean Statement of Financial Accounting Standard No.
140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
"State" shall mean any of the fifty States of the United States of
America or the District of Columbia.
"Stated Maturity Date" shall mean the Class A-1 Stated Maturity Date,
the Class A-2 Stated Maturity Date, the Class A-3 Stated Maturity Date, the
Class A-4 Stated Maturity Date and the Class B Stated Maturity Date,
collectively, or any of them, as the context requires.
"Subtrust" shall have the meaning specified in the MART Trust
Agreement.
"Subtrust Assets" shall have the meaning specified in the MART Trust
Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e).
"Swap Counterparty" shall initially mean The Chase Manhattan Bank as
swap counterparty under the Interest Rate Swap Agreements, or any successors
or replacement swap counterparties from time to time under any Interest Rate
Swap Agreement. Each Swap Counterparty (or the institution guaranteeing such
Swap Counterparty's obligations) must have a long-term rating at least equal
to "A2" by Xxxxx'x and "A" by Fitch, and a short-term rating at least equal to
"A-1" by S&P and "F1" by Fitch at the time of entering into the Interest Rate
Swap Agreements.
"Swap Termination Payment" shall mean the Class A Swap Termination
Payment and the Class B Swap Termination Payment.
"Telerate Page 3750" shall mean the display designated as page "3750"
by Telerate, Inc. (or such other page as may replace Telerate Page 3750 on
that service for the purpose of displaying London interbank offered rates of
major banks).
"Total Required Payment" shall mean, on any Payment Date, the sum of
(i) the Total Servicing Fee, (ii) any Net Swap Payments and any Swap
Termination Payments due and payable to the Swap Counterparty, (iii) the
Accrued Note Interest and (iv) the Principal Distribution Amount with respect
to such Payment Date.
"Trust Estate" shall mean all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of this Indenture for the benefit of the Noteholders and the Swap
Counterparties (including, without limitation, all property and interests
Granted to the Indenture Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
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 Incorporated by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
Section 1.3 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words
in the plural include the singular; and
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified
or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are
also to its permitted successors and assigns.
ARTICLE II - THE NOTES
Section 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes, together with the
Indenture Trustee's Certificates of Authentication, shall be in substantially
the form set forth in Exhibit 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
$222,000,000, Class A-2 Notes for original issue in an aggregate principal
amount of $244,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $437,000,000, Class A-4 Notes for original issue in an
aggregate principal amount of $399,400,000, and Class B Notes for original
issue in an aggregate principal amount of $98,440,000. The aggregate principal
amounts of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes
and Class B Notes outstanding at any time may not exceed those respective
amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication. The
Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to Section
2.13, the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a), the
Issuer shall cause Definitive Notes to be prepared without unreasonable delay.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Issuer shall execute, and the Indenture Trustee
shall authenticate and deliver in exchange therefor, a like principal amount
of Definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
Section 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The Issuer,
by entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local income
and franchise tax purposes as indebtedness of the Issuer.
Section 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. Upon any resignation of any Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, (i) the Issuer shall give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location and any change in the location, of the Note Register, (ii) the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof and (iii) the Indenture Trustee
shall have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2, if
the requirements of Section 8-401 of the Relevant UCC are met, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denomination, of a like aggregate principal amount. The Indenture
Trustee may rely upon the Administrator with respect to the determination of
whether the requirements of Section 8-401 of the Relevant UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate, and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making such
exchange is entitled to receive. The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.5 notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of fifteen (15) days preceding the due date for any payment with
respect to such Note.
(i) Each Person to whom a Note is transferred will be required to
represent, in the case of a Definitive Note, or deemed to represent, in the
case of a Book-Entry Note, that (x) such Person is not an employee benefit
plan, as described in section 3(3) of ERISA, or a plan, as defined in section
4975(E)(1) of the Code, that is subject to Title I of ERISA or to section 4975
of the Code, a government plan subject to any state or local law similar to
Title I of ERISA or section 4975 of the Code, or a Person investing on behalf
of or with "plan assets" of such a plan, or (y) the Person's acquisition,
holding and disposition of the Note are and will be eligible for relief under
a prohibited transaction exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice
to the Issuer, the Note Registrar or the Indenture Trustee that such Note has
been acquired by a protected purchaser, and provided that the requirements of
Section 8-405 of the Relevant UCC are met, the Issuer shall execute, and upon
its request the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven (7) days of the Indenture Trustee's receipt of evidence to its
satisfaction of such destruction, loss or theft shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note
of the same Class, the Issuer may pay such destroyed, lost or stolen Note when
so due or payable or upon the Redemption Date without surrender thereof. The
Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-405 of the Relevant UCC
are met. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note
was delivered or any assignee of such Person, except a protected purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest,
if any, on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions from
the Servicer pursuant to Section 4.6(c) of the Sale and Servicing Agreement,
the Indenture Trustee shall withdraw the Total Available Funds on deposit in
the Collection Account for the related Collection Period and make the
following payments and deposits for such Payment Date in the following order
of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net
Swap Payments then due under the Interest Rate Swap
Agreements (exclusive of any Swap Termination Payments);
(iii) with the same priority and ratably, in accordance
with the outstanding balance of the Class A Notes and the
amount of any Class A Swap Termination Payments due and
payable by the Issuer to the Swap Counterparties in respect
of the Class A Interest Rate Swaps,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class A Notes, and
(B) to the Swap Counterparties, any Class A Swap
Termination Payments in respect of the Class A Interest
Rate Swaps;
provided, that, if any amounts allocable to the Class A
Notes are not needed to pay interest due on such Notes, such
amounts shall be applied to pay the portion, if any, of any Class
A Swap Termination Payments remaining unpaid, pro rata based on
the amount of the Class A Swap Termination Payments, and
provided, further, that if there are not sufficient funds
available to pay the entire amount of the Accrued Note Interest
for the Class A Notes, the amounts available shall be applied to
the payment of such interest on the Class A Notes on a pro rata
basis;
(iv) with the same priority and ratably, in accordance
with the outstanding balance of the Class B Notes and the
amount of any Class B Swap Termination Payments due and
payable by the Issuer to the Swap Counterparty in respect of
the Class B Interest Rate Swap,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class B Notes; and
(B) to the Swap Counterparties, any Class B Swap
Termination Payments in respect of the Class B Notes;
provided, that, if any amount allocable to the Class B
Notes are not needed to pay interest due on such Notes,
such amounts shall be applied to pay the portion, if
any, of any Class B Swap Termination Payments remaining
unpaid;
(v) to the Note Payment Account, the Principal
Distribution Amount;
(vi) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve Account up
to the Specified Reserve Balance; and
(vii) to the Certificate Distribution Account, any
remaining portion of Total Available Funds.
Notwithstanding the foregoing, following the occurrence and during
the continuation of an Event of Default which has resulted in an acceleration
of the Notes, on each Payment Date the Total Available Funds shall be
deposited in the Note Payment Account and applied in accordance with Section
2.8(f).
(b) The principal of each Note shall be payable in installments on
each Payment Date in an aggregate amount (unless the Notes have been
accelerated in accordance with Section 5.2 following the occurrence of an
Event of Default) for all Classes of Notes equal to the Principal Distribution
Amount with respect to such Payment Date. On each Payment Date, unless the
Notes have been accelerated in accordance with Section 5.2 following the
occurrence of an Event of Default, the Issuer shall cause to be paid all
amounts on deposit in the Note Payment Account with respect to the related
Collection Period in the following order of priority:
(i) to the Class A Noteholders, Accrued Note Interest
(and, if amounts on deposit in the Note Payment Account are
insufficient for such purpose, payments shall be made to the
to the Class A Noteholders pro rata in proportion to the
Accrued Note Interest for each Class of Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class A-1 Noteholders, 100% of the
Principal Distribution Amount in reduction of principal
until the Class A-1 Notes are paid in full;
(iv) following payment in full of the Class A-1 Notes,
the Class A Percentage of the Principal Distribution Amount
in reduction of principal to the Class A-2 Noteholders until
the Class A-2 Notes are paid in full, then to the Class A-3
Noteholders until the Class A-3 Notes are paid in full, then
to the Class A-4 Noteholders until the Class A-4 Notes are
paid in full; and
(v) following payment in full of the Class A-1 Notes,
the Class B Percentage of the Principal Distribution Amount
in reduction of principal to the Class B Noteholders until
the Class B Notes are paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent not
previously paid, will be due on the Class A-1 Stated Maturity Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid,
will be due on the Class A-2 Stated Maturity Date, the principal amount of the
Class A-3 Notes, to the extent not previously paid, will be due on the Class
A-3 Stated Maturity Date, the principal amount of the Class A-4 Notes, to the
extent not previously paid, will be due on the Class A-4 Stated Maturity Date
and the principal amount of the Class B Notes, to the extent not previously
paid, will be due on the Class B Stated Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes and the Class B Notes shall accrue interest at the Class
A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate and the
Class B Rate, respectively, and such interest shall be due and payable on each
Payment Date. Interest on the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes shall be calculated on the basis of the
actual days elapsed and a 360-day year. Interest on the Class B Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months. Subject to
Section 3.1, any installment of interest or principal, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered on the Record Date by check
mailed first-class postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided that, unless Definitive Notes
have been issued pursuant to Section 2.13, with respect to Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payment shall be made by wire transfer in
immediately available funds to the account designated by such nominee, and
except for the final installment of principal payable with respect to such
Note on a Payment Date or on the related Stated Maturity Date (and except for
the Redemption Price for any Note called for redemption), which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3. The Issuer shall pay
all Accrued Note Interest, including Interest Carryover Shortfalls, to the
Persons who are Noteholders on the Record Date for a particular Payment Date
even if a portion of such Accrued Note Interest relates to a different Payment
Date.
(e) All principal payments on a Class of Notes shall be made pro rata
to the Noteholders entitled thereto. The Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects that the
final installment of principal of and interest on such Note shall be paid.
Such notice shall be mailed or transmitted by facsimile prior to such final
Payment Date and shall specify that such final installment shall be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemption of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(f) Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Holders of Notes representing not less than a
majority of the principal amount of the Notes Outstanding have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2.
On each Payment Date following acceleration of the Notes, all amounts on
deposit in the Note Payment Account shall be paid in the following order of
priority.
(i) first, to the Indenture Trustee for amounts due
under Section 6.7 and to the Owner Trustee for amounts due
under Sections 8.1 and 8.2 of the Trust Agreement;
(ii) second, to the Servicer for amounts due and unpaid
in respect of Total Servicing Fees;
(iii) third, to the Swap Counterparties, the amount of
the Net Swap Payments then due under the Interest Rate Swap
Agreements (exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in
accordance with the outstanding principal amount of the
Class A Notes and the amount of any Class A Swap Termination
Payments due and payable by the Issuer to the Swap
Counterparties in respect of the Class A Interest Rate
Swaps, (1) to Noteholders of the Class A Notes, the Accrued
Note Interest ratably in proportion to Accrued Note Interest
for each Class of the Class A Notes, without preference or
priority of any kind, according to the amounts due and
payable on the Class A Notes for interest, and (2) to the
Swap Counterparties, any Class A Swap Termination Payments;
(v) fifth, to the Swap Counterparties for any remaining
Class A Swap Termination Payments pro rata based on the
amount of their respective Class A Swap Termination
Payments;
(vi) sixth, to the Class A-1 Noteholders, the
outstanding principal amount of the Class A-1 Notes as of
such Payment Date (prior to giving effect to any payment of
principal on such date) in reduction of principal until the
principal amount of the Class A-1 Notes has been paid in
full;
(vii) seventh, to the Class A-2 Noteholders, the Class
A-3 Noteholders and the Class A-4 Noteholders, the
outstanding principal amount of the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes, respectively, pro
rata in proportion to the respective principal balances of
each of such Classes as of such Payment Date (prior to
giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of each of
such Classes has been paid in full;
(viii) eighth, with the same priority and ratably, in
accordance with the outstanding principal balance of the
Class B Notes and the amount of any Class B Swap Termination
Payments due and payable by the Issuer to the Swap
Counterparties in respect of the Class B Interest Rate Swap,
(1) to the Class B Noteholders, Accrued Note Interest and
(2) to the Swap Counterparties, any Class B Swap Termination
Payments;
(ix) ninth, to the Swap Counterparty for any remaining
Class B Swap Termination Payments;
(x) tenth, 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; and (xi) eleventh, to the
Certificateholders.
Section 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.9, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Order that they be destroyed or returned to
it, provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
Section 2.10 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt of (i) an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent, if any, provided for in this
Indenture relating to the release of the property from the lien of this
Indenture have been complied with, provided that counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel
in lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates. If the Commission shall issue an
exemptive order under TIA Section 304(d) modifying the Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), the Indenture Trustee
shall release property from the lien of this Indenture in accordance with the
conditions and procedures set forth in such exemptive order.
Section 2.11 Book-Entry Notes. The Notes, upon original issuance,
shall be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to the Indenture Trustee as custodian for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. The Book-Entry Notes shall be registered initially on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner thereof shall receive a definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.13.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in
full force and effect;
(ii) the Note Registrar and the Indenture Trustee shall
be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of
the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section
2.11 conflict with any other provisions of this Indenture,
the provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners
and the Clearing Agency and/or the Clearing Agency
Participants pursuant to the Note Depository Agreement;
unless and until Definitive Notes are issued pursuant to
Section 2.13, the initial Clearing Agency shall make
book-entry transfers among the Clearing Agency Participants
and receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency Participants;
and
(v) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Holders
of Notes evidencing a specified percentage of the principal
amount of the Notes or any Class of Notes Outstanding, the
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Note Owners and/or Clearing Agency Participants
owning or representing, respectively, such required
percentage of the beneficial interest in the Notes or such
Class of Notes and has delivered such instructions to the
Indenture Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.13 Definitive Notes. If (i) the Issuer, the Administrator
or the Servicer advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry Notes and the Indenture Trustee or the
Administrator is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or an Event of Servicing
Termination, Note Owners of the Book-Entry Notes representing beneficial
interests aggregating not less than 51% of the principal amount of such Notes
advise the Indenture Trustee and the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of such Note Owners, then the Clearing Agency shall
notify all Note Owners and the Indenture Trustee of the occurrence of such
event and of the availability of Definitive Notes to Note Owners requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Any portion of a Book-Entry Note transferred or exchanged pursuant to this
Section 2.13 shall be executed, authenticated and delivered only in the
minimum denominations and integral multiples set forth in Section 2.2(d). Upon
the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
Section 2.14 Authenticating Agents. The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in
connection with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5
and 2.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
2.14 shall be deemed to be the authentication of Notes "by the Indenture
Trustee."
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Owner Trustee. The
Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Owner
Trustee.
The Administrator agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services. The provisions of
Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III - COVENANTS
Section 3.1 Payment Covenant. The Issuer shall duly and punctually
pay the principal of and interest on, if any, the Notes in accordance with the
terms of the Notes and this Indenture. Amounts properly withheld under the
Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of any such office or
agency. If, at any time, the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. (a) As provided
in Section 8.2, all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account,
the 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
and under the Interest Rate Swap Agreements, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of which
it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust
for the payment of Notes if at any time it ceases to meet
the standards required to be met by a Paying Agent at the
time of its appointment; and
(v) comply with all requirements of the Code and any
state or local tax law with respect to the withholding from
any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order
direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which the sums were held by such Paying
Agent; and upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
(d) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two (2) years after such amount has become due and payable shall be discharged
from such trust and be paid to the Issuer on Issuer Request; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
shall be repaid to the Issuer. The Indenture Trustee shall also adopt and
employ, at the expense and direction of the Issuer, any other reasonable means
of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have not
been surrendered for redemption or whose right to or interest in monies due
and payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States
of America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute and deliver all such supplements and amendments hereto and all
such financing statements, continuation statements, instruments of further
assurance and other instruments, and shall take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out
more effectively the purposes hereof; (ii) perfect, publish
notice of or protect the validity of any Grant made or to be
made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee, the Swap Counterparties
and the Noteholders in such Trust Estate against the claims
of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section 3.5.
Section 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit C.
(b) On or before March 31, in each calendar year, beginning in 2002,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that shall, in the opinion of such counsel, be required to maintain the lien
and security interest of this Indenture until March 31 in the following
calendar year.
Section 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer shall not take any action and shall use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate, including,
but not limited to, filing or causing to be filed all financing statements and
continuation statements required to be filed under the Relevant UCC by the
terms of this Indenture and the Sale and Servicing Agreement in accordance
with and within the time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of the Indenture Trustee or the Holders of at least a
majority of the principal amount of the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an Event
of Servicing Termination under the Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof
and shall specify in such notice the action, if any, the Issuer is taking in
respect of such default. If an Event of Servicing Termination shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.1 of
the Sale and Servicing Agreement, the Issuer shall (subject to the rights of
the Indenture Trustee to direct such appointment pursuant to Section 8.2 of
the Sale and Servicing Agreement) appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Indenture Trustee. In the event
that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee, without further action, shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event
shall be released from such duties and obligations, such release not to be
effective until the date a new servicer enters into a servicing agreement with
the Issuer as provided below. Upon delivery of any such notice to the Issuer,
the Issuer shall obtain a new servicer as the Successor Servicer under the
Sale and Servicing Agreement. Any Successor Servicer (other than the Indenture
Trustee) shall (i) be an established financial institution having a net worth
of not less than $50,000,000 and whose regular business includes the servicing
of automotive installment sale contracts and (ii) enter into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to the Servicer. If,
within thirty (30) days after the delivery of the notice referred to above,
the Issuer shall not have obtained such a new servicer, the Indenture Trustee
may appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer. In connection with any such appointment, the Indenture
Trustee may make such arrangements for the compensation of such successor as
it and such successor shall agree, subject to the limitations set forth below
and in the Sale and Servicing Agreement, and in accordance with Section 8.2 of
the Sale and Servicing Agreement, the Issuer shall enter into an agreement
with such successor for the servicing of the Receivables (such agreement to be
in form and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed to the Servicer's duties as servicer of the Receivables
as provided herein, it shall do so in its individual capacity and not in its
capacity as Indenture Trustee and, accordingly, the provisions of Article VI
hereof shall be inapplicable to the Indenture Trustee in its duties as the
successor to the Servicer and the servicing of the Receivables. If the
Indenture Trustee shall become successor to the Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; provided that the Indenture Trustee, in
its capacity as the Servicer, shall be fully liable for the actions and
omissions of such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Servicer is appointed by the Issuer,
the Issuer shall notify the Indenture Trustee of such appointment, specifying
in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer hereby agrees that it shall not,
without the prior written consent of the Indenture Trustee or the Holders of
at least a majority in principal amount of the Notes Outstanding, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement or the Basic Documents).
Section 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture,
the Trust Agreement, the Purchase Agreement or the Sale and
Servicing Agreement, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
(other than amounts properly withheld from such payments
under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon the Issuer;
(iii) consolidate or merge with or into any other
Person
(iv) dissolve or liquidate in whole or in part;
(v) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly
permitted hereby, (B) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the assets of
the Issuer or any part thereof or any interest therein or
the proceeds thereof or (C) permit the lien of this
Indenture not to constitute a valid first priority (other
than with respect to any such tax, mechanics' or other lien)
security interest in the Trust Estate; or
(vi) engage in any activity which is inconsistent with
the treatment of the Issuer as a "Qualifying Special Purpose
Entity" as such term is used in SFAS 140 and any successor
rule thereto.
Section 3.9 Annual Statement as to Compliance. The Issuer shall
deliver to the Indenture Trustee, on or before March 31 of each year
(commencing with the year 2002), an Officer's Certificate stating, as to the
Responsible Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during
such year (or such shorter period, with respect to the first
such Officer's Certificate) and of its performance under
this Indenture has been made under such Responsible
Officer's supervision; and
(ii) to the best of such Responsible Officer's
knowledge, based on such review, the Issuer has complied
with all conditions and covenants under this Indenture
throughout such year (or such shorter period, with respect
to the first such Officer's Certificate), or, if there has
been a default in its compliance with any such condition or
covenant, specifying each such default known to such
Responsible Officer and the nature and status thereof.
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition
of Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer
or otherwise dispose of any material portion of the properties and assets
included in the Trust Estate to any Person.
Section 3.11 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables
in the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.13 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture and the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
Section 3.15 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.16 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Owner Trustee, the Swap Counterparties and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose under,
the Sale and Servicing Agreement or the Trust Agreement and (y) payments to
the Indenture Trustee pursuant to Section 1(a)(ii) of the Administration
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the other Basic Documents.
Section 3.18 Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Swap Counterparty and the Rating Agencies prompt
written notice of each Event of Default hereunder and of each default on the
part of any party to the Sale and Servicing Agreement, the Purchase Agreement,
or the Interest Rate Swap Agreements with respect to any of the provisions
thereof.
Section 3.19 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
therewith.
Section 3.20 Calculation Agent. (a) The Issuer agrees that for so
long as any of the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes or Class
B Notes are Outstanding there shall at all times be an agent appointed to
calculate LIBOR in respect of each Interest Accrual Period (the "Calculation
Agent"). The Issuer hereby appoints The Chase Manhattan Bank as Calculation
Agent for purposes of determining LIBOR for each Interest Accrual Period and
The Chase Manhattan Bank hereby accepts such appointment. The Calculation
Agent may be removed by the Issuer at any time. If the Calculation Agent is
unable or unwilling to act as such or is removed by the Issuer, the Issuer
shall promptly appoint as a replacement Calculation Agent a leading bank which
is engaged in transactions in Eurodollar deposits in the international
Eurodollar market and which does not control or is not controlled by or under
common control with the Issuer or its Affiliates. The Calculation Agent may
not resign its duties without a successor having been duly appointed.
(b) The Calculation Agent shall be required to calculate on each
LIBOR Determination Date the interest rate for the Outstanding Class A-2
Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes for the related
Interest Accrual Period (in each case, at a rate per annum rounded, if
necessary, to the nearest 1/100,000 of 1% (.0000001), with five one-millionths
of a percentage point rounded upward) and the amount of interest payable
(rounded to the nearest cent, with half a cent being rounded upwards) on the
related Payment Date. The determination of such interest rates by the
Calculation Agent shall (in the absence of manifest error) be final and
binding upon all parties.
ARTICLE IV - SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect with respect
to the Notes except as to (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights
of Noteholders to receive payments of principal thereof and interest thereon,
(iv) Sections 3.3, 3.4, 3.5, 3.8, 3.11 and 3.12 hereof, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Section 4.3), and (vi) the rights of Noteholders and
Swap Counterparties as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when either:
(A) all Notes of all Classes theretofore
authenticated and delivered (other than (i) Notes that
have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.6 and (ii)
Notes for whose payment money has theretofore been
irrevocably deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in
Section 3.3) have been delivered to the Indenture
Trustee for cancellation; or
(B) each of the following:
(1) all Notes not theretofore delivered to the
Indenture Trustee for cancellation have become
due and payable and the Issuer has irrevocably
deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the
United States of America (which will mature
prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient
to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to
the applicable Stated Maturity Date or
Redemption Date (if Notes shall have been called
for redemption pursuant to Section 10.1(a)), as
the case may be;
(2) the Issuer has paid or caused to be paid all
other sums payable by the Issuer hereunder and
under the other Basic Documents;
(3) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate
from a firm of certified public accountants,
each meeting the applicable requirements of
Section 11.1(a) and, subject to Section 11.2,
each stating that all conditions precedent
herein provided for relating to the satisfaction
and discharge of this Indenture have been
complied with;
(4) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that
the satisfaction and discharge of the Notes
pursuant to this Section 4.1 will not cause any
Noteholder to be treated as having sold or
exchanged any of its Notes for purposes of
Section 1001 of the Code; and
(5) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate stating that
the satisfaction and discharge of this Indenture
(i) is not inconsistent with the derecognition
by MMCA of the Receivables under GAAP and (ii)
will not cause the Issuer to become part of
MMCA's consolidated group under GAAP.
(b) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.2 Satisfaction and Discharge of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection (b)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Notes Outstanding, and the provisions of this
Indenture, as it relates to such Notes, shall no longer be in effect (and the
Indenture Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from the
trust funds described in subsection (b)(i) hereof, payment
of the principal of and interest on the Notes Outstanding at
maturity of such principal or interest;
(ii) the obligations of the Issuer with respect to the
Notes under Sections 2.5, 2.6, 3.2 and 3.3 hereof;
(iii) the obligations of the Issuer to the Indenture
Trustee under Section 6.7 hereof; and
(iv) the rights, powers, trusts and immunities of the
Indenture Trustee hereunder and the duties of the Indenture
Trustee hereunder.
(b) The satisfaction and discharge of the Notes pursuant to
subsection (a) of this Section 4.2 is subject to the satisfaction of all of
the following conditions:
(i) the Issuer has deposited or caused to be deposited
irrevocably (except as provided in Section 4.4 hereof) with
the Indenture Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes, which, through the
payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one
day prior to the due date of any payment referred to below,
money in an amount sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Indenture Trustee, to pay and discharge the
entire indebtedness on the Notes Outstanding, for principal
thereof and interest thereon to the date of such deposit (in
the case of Notes that have become due and payable) or to
the maturity of such principal and interest, as the case may
be, and to pay any amounts then due and payable to the Swap
Counterparties;
(ii) such deposit will not result in a breach or
violation of, or constitute an event of default under, any
other agreement or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such
deposit or on the ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture Trustee
an Opinion of Counsel to the effect that the satisfaction
and discharge of the Notes pursuant to this Section 4.2 will
not cause any Noteholder to be treated as having sold or
exchanged any of its Notes for purposes of Section 1001 of
the Code; and
(v) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
satisfaction and discharge of the Notes contemplated by this
Section 4.2 have been complied with.
(c) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment
or redemption of which such monies have been deposited with the Indenture
Trustee, of all sums due and to become due thereon for principal and interest,
and for payment to the Swap Counterparties of all sums, if any, due or to
become due to the Swap Counterparties under and in accordance with this
Indenture and the Interest Rate Swap Agreements, but such monies need not be
segregated from other funds except to the extent required herein or in the
Sale and Servicing Agreement or required by law.
Section 4.4 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all monies then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
ARTICLE V - REMEDIES
Section 5.1 Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any Note
when the same becomes due and payable, and such default
shall continue for a period of five (5) days or more; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same
becomes due and payable, including with respect to each
Class of Notes, the Stated Maturity Date for such Class; or
(iii) default in the observance or performance of any
material covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in
the observance or performance of which is elsewhere in this
Section 5.1 specifically dealt with), or any representation
or warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have
been made, and such default shall continue or not be cured,
or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of sixty
(60) days or in the case of a materially incorrect
representation and warranty thirty (30) days, after there
shall have been given, by registered or certified mail, to
the Issuer by the Indenture Trustee or to the Issuer and the
Indenture Trustee by the Holders of not less than 25% of the
principal amount of the Notes Outstanding, a written notice
specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an
involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or
ordering the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and
in effect for a period of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or the
consent by the Issuer to the entry of an order for relief in
an involuntary case under any such law, or the consent by
the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action
by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default which with the giving of notice and the lapse of
time would become an Event of Default under clause (iii), its status and
what action the Issuer is taking or proposes to take with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and Annulment. (a)
If an Event of Default should occur and be continuing, then and in every such
case the Indenture Trustee or the Holders of Notes representing not less than
a majority of the principal amount of the Notes Outstanding, voting as a
group, may declare all the Notes to be immediately due and payable, by a
notice in writing to the Issuer (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable. If an Event of
Default specified in Section 5.1(iv) or (v) occurs, all unpaid principal,
together with all accrued and unpaid interest thereon, of all the Notes, and
all other amounts payable hereunder, shall automatically become due and
payable without any declaration or other act on the part of the Indenture
Trustee or any Holder of the Notes. In the event of such declaration or
automatic acceleration, the Indenture Trustee shall give prompt written notice
to the Swap Counterparties.
(b) At any time after a declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the amount due has
been obtained by the Indenture Trustee as hereinafter provided in this Article
V, the Holders of Notes representing a majority of the principal amount of the
Notes Outstanding, voting as a group, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes or under the Interest Rate
Swap Agreements if the Event of Default giving rise to
such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel and other amounts
due and owing to the Indenture Trustee pursuant to
Section 6.7; and
(ii) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) there is a default in
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five (5) days, or (ii) there is a
default in the payment of the principal of or any installment of the principal
of any Note when the same becomes due and payable, the Issuer shall, upon
demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit
of the Holders of the Notes, the whole amount then due and payable on the
Notes for principal and interest, with interest upon the overdue principal at
the applicable Note Interest Rate and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest
at the applicable Note Interest Rate and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel and other amounts due and
owing to the Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so
due and unpaid, and may prosecute such Proceeding to judgment or final decree,
and may enforce the same against the Issuer or other obligor upon the Notes
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Notes, wherever situated, the monies adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders
and the Swap Counterparties, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect
of the Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys
and counsel, and all other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7), of the Swap
Counterparties and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes and
the Swap Counterparties in any election of a trustee, a
standby trustee or Person performing similar functions in
any such Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to
pay all amounts received with respect to the claims of the
Noteholders, the Swap Counterparties and of the Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee, the Swap Counterparties
or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to
make payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due and owing to the Indenture Trustee
pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder or of any Swap Counterparty any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the Interest Rate Swap Agreements or the rights of any Noteholder or Swap
Counterparty to authorize the Indenture Trustee to vote in respect of the
claim of any Noteholder or Swap Counterparty in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes and
the Swap Counterparties.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
Section 5.4 Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may, but shall not be
obligated to, do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all
amounts then payable on the Notes or under this Indenture
with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer
and any other obligor upon such Notes the amounts then
payable and adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with
respect to the Trust Estate;
(iii) exercise any remedies of a secured party under
the Relevant UCC and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture
Trustee and the Noteholders and Swap Counterparties; and
(iv) sell or liquidate the Trust Estate or any portion
thereof or rights or interest therein at one or more public
or private sales called and conducted in any manner
permitted by law; provided, however, that the Indenture
Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless (A) the
Holders of 100% of the principal amount of the Notes
Outstanding, voting as a group, consent thereto, (B) the
proceeds of such sale or liquidation are sufficient to pay
in full the principal of and the accrued interest on the
outstanding Notes and all payments due and payable
(including any Swap Termination Payments) pursuant to the
Interest Rate Swap Agreements, or (C) the Indenture Trustee
determines that the Trust Estate will not continue to
provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the
Notes had not been declared due and payable, and the
Indenture Trustee obtains the consent of Holders of 66 2/3%
of the principal amount of the Notes Outstanding, voting as
a group. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C) above, the Indenture
Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for
such purpose.
(b) Notwithstanding the foregoing, if an Event of Default specified
in Section 5.1(i) shall have occurred and be continuing and the Notes shall
have been accelerated under Section 5.2(a),
(i) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would
be sufficient to discharge in full the principal of and
accrued interest on the Notes and to make all payments
(including any Swap Termination Payments) pursuant to the
Interest Rate Swap Agreements, the Indenture Trustee shall
sell or liquidate the Trust Estate or any portion thereof or
rights or interest therein at one or more public or private
sales called and conducted in any manner permitted by law;
or
(ii) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would
not be sufficient to discharge in full the principal of and
accrued interest on the Notes and to make all payments
(including any Swap Termination Payments) owing to the Swap
Counterparty under the Interest Rate Swap Agreements, the
Indenture Trustee may sell or liquidate the Trust Estate at
one or more public or private sales called and conducted in
any manner permitted by law if the Indenture Trustee obtains
the consent of Holders of 66 2/3% of the principal amount of
the Notes Outstanding, voting as a group.
(c) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out the money or property in the order of
priority set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section 5.4. At least fifteen (15)
days before such record date, the Issuer shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and
the amount to be paid.
Section 5.5 Optional Preservation of the Receivables. Subject to
Section 5.4(b), if the Notes have been declared to be due and payable under
Section 5.2 following an Event of Default, and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee may,
but need not, elect to maintain possession of the Trust Estate and apply
proceeds as if there had been no declaration of acceleration; provided,
however, that Total Available Funds shall be applied in accordance with such
declaration of acceleration in the manner specified in Section 4.6(c) of the
Sale and Servicing Agreement. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes and any amounts owing to the Swap
Counterparties, and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
Section 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount of the
Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of a
majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the principal amount of the
Notes Outstanding, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest on, if any, such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
Section 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right
or remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of Default
or any acquiescence therein. Every right and remedy given by this Article V or
by law to the Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture
Trustee or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Holders of a majority of the
principal amount of the Notes Outstanding shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders of
Notes representing not less than 100% of the principal amount of the Notes
Outstanding;
(c) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the principal amount of the Notes Outstanding
to sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.1, the Indenture Trustee need not take any action that
it reasonably believes might involve it in costs, expenses and liabilities
for which it will not be adequately indemnified or might materially
adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12 Waiver of Past Default. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding, voting as a group, may waive any past Default or
Event of Default and its consequences except a Default or Event of Default (a)
in the payment of principal of or interest on any of the Notes or (b) in
respect of a covenant or provision hereof that cannot be amended, supplemented
or modified without the consent of the Holder of each Note. In the case of any
such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not to
have occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorney's
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
principal amount of the Notes Outstanding or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption
Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead or in any manner whatsoever, claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Indenture, and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance
with Section 5.4(c).
Section 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or by the Seller of each of its obligations under or in connection
with the Purchase Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by
the Seller or the Servicer of each of their obligations under the Sale and
Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Servicer under or in connection with
the Sale and Servicing Agreement, or against the Seller under or in connection
with the Purchase Agreement, including the right or power to take any action
to compel or secure performance or observance by the Seller or the Servicer,
as the case may be, of each of their obligations to the Issuer thereunder and
to give any consent, request, notice, direction, approval, extension, or
waiver under the Sale and Servicing Agreement or the Purchase Agreement, as
the case may be, and any right of the Issuer to take such action shall be
suspended.
(c) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by MMCA of each of its obligations to the Seller
under or in connection with the Purchase Agreement in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Purchase Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by MMCA of each of its obligations
under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as
a group, shall, exercise all rights, remedies, powers, privileges and claims
of the Seller against MMCA under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure
performance or observance by MMCA of each of its obligations to the Seller
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Purchase Agreement, and any rights of the Seller
to take such action shall be suspended.
(e) Promptly following a request from the Indenture Trustee to do so,
and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparties in accordance with the
Interest Rate Swap Agreements and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Interest Rate Swap Agreements to the extent and in the manner
directed by the Indenture Trustee, including the transmission of notices of
default thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Swap Counterparties of its
obligations under the Interest Rate Swap Agreements.
(f) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Noteholders of Notes evidencing not less than 66 2/3% of the principal amount
of the Controlling Note Class shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Swap Counterparties including
the right or power to take any action to compel or secure performance or
observance by the Swap Counterparties of their obligations to the Issuer under
the Interest Rate Swap Agreements and to give any consent, request, notice,
direction, approval, extension, or waiver under the Interest Rate Swap
Agreements and any right of the Issuer to take such action shall be suspended.
ARTICLE VI - THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Indenture Trustee;
and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and, if required by the terms of this
Indenture, conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, negligent failure to act, willful misconduct or bad
faith, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant
to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c), (e) and (g) of this
Section 6.1.
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions
of the TIA.
(i) The Indenture Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer shall have actual
knowledge of such Event of Default or (2) written notice of such Event of
Default shall have been given to the Indenture Trustee in accordance with the
provisions of this Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture Trustee
may rely on any document believed by it to be genuine and to have been signed
or presented by the proper Person. The Indenture Trustee need not investigate
any fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel unless it
is proved that the Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that such action or omission by the
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Indenture Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney.
Section 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent hereunder may do the
same with like rights.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee (i)
shall not be responsible for, and makes no representation, as to the validity
or adequacy of this Indenture or the Notes and (ii) shall not be accountable
for the Issuer's use of the proceeds from the Notes, or responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of such Default within
ninety (90) days after it occurs. Except in the case of a Default in payment
of principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
Section 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by
the Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement
containing the information which is required to be expressed in the Payment
Date statements as a dollar amount per $1,000 of original denomination of the
Notes or Class of Notes, as applicable, aggregated for such calendar year, for
the purposes of such Noteholder's preparation of Federal income tax returns.
Section 6.7 Compensation and Indemnity. (a) The Issuer shall, or
shall cause the Administrator to, pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall, or shall cause the Administrator to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall, or shall
cause the Administrator to, indemnify the Indenture Trustee against any and
all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee to so notify the Issuer and the Administrator shall
not relieve the Issuer or the Administrator of its obligations hereunder. The
Issuer shall, or shall cause the Servicer to, defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall, or shall
cause the Servicer to, pay the fees and expenses of such counsel. Neither the
Issuer nor the Administrator need reimburse any expense or indemnity against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the resignation or removal of the
Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar
law.
Section 6.8 Replacement of Indenture Trustee. (a) No resignation or
removal of the Indenture Trustee, and no appointment of a successor Indenture
Trustee, shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture
Trustee may resign at any time by so notifying the Issuer. The Holders of a
majority in principal amount of the Notes Outstanding, voting as a group, may
remove the Indenture Trustee without cause by so notifying the Indenture
Trustee and the Issuer and the Issuer may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable
of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer, and shall concurrently deliver a copy of such acceptance to each Swap
Counterparty. Thereupon, the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
(c) If a successor Indenture Trustee does not take office within
sixty (60) days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the Holders of a majority in
principal amount of the Notes Outstanding may petition any court of competent
jurisdiction to appoint a successor Indenture Trustee. If the Indenture
Trustee fails to comply with Section 6.11, any Noteholder may petition any
court of competent jurisdiction to remove the Indenture Trustee and to appoint
a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee pursuant
to this Section 6.8, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies with prior written notice
of any such transaction.
(b) If at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated, and if at that time any of the Notes shall not have
been authenticated, any successor to the Indenture Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor to the Indenture Trustee. In all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this
Indenture provided that the certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate may at the time be located,
the Indenture Trustee shall have the power and may execute and deliver an
instrument to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Trust Estate, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders and the Swap Counterparties, such title to
the Trust Estate, or any part hereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee shall not be authorized to act separately without
the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time remove or
accept the resignation of any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee or its parent shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report
of condition and shall have a long-term debt rating of investment grade by
each of the Rating Agencies or shall otherwise be acceptable to each of the
Rating Agencies. The Indenture Trustee shall comply with TIA Section 310(b).
(b) Within ninety (90) days after ascertaining the occurrence of an
Event of Default which shall not have been cured or waived, unless authorized
by the Commission, the Indenture Trustee shall resign with respect to the
Class A Notes and/or the Class B Notes in accordance with Section 6.8 of this
Indenture, and the Issuer shall appoint a successor Indenture Trustee for one
or both of such Classes, as applicable, so that there will be separate
Indenture Trustees for the Class A Notes and the Class B Notes. In the event
the Indenture Trustee fails to comply with the terms of the preceding
sentence, the Indenture Trustee shall comply with clauses (ii) and (iii) of
TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section 6.11 of a
successor Indenture Trustee with respect to any Class of Notes, the Issuer,
the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of each Class as to which the retiring
Indenture Trustee is not retiring shall continue to be vested in the Indenture
Trustee and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses.
The Indenture Trustee shall use its best efforts to maintain the effectiveness
of all licenses required under the Pennsylvania Motor Vehicle Sales Finance
Act in connection with this Indenture and the transactions contemplated hereby
until the lien and security interest of this Indenture shall no longer be in
effect in accordance with the terms hereof.
Section 6.14 Interest Rate Swap Provisions. (a) The Issuer has
entered into the Interest Rate Swap Agreements, each in a form satisfactory to
the Rating Agencies, to hedge the floating rate interest expense on the Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes. The Issuer may,
from time to time, enter into one or more replacement Interest Rate Swap
Agreements with one or more replacement Swap Counterparties in the event that
any Interest Rate Swap Agreement is terminated prior to its scheduled
expiration pursuant to an Event of Default or Termination Event (each such
term as defined in the Interest Rate Swap Agreements). The notional amounts of
the Interest Rate Swaps will be determined as follows:
(i) The notional amount of the Class A-2 Interest Rate
Swap hedging the interest expense on the Class A-2 Notes
will be initially equal to the principal amount of the Class
A-2 Notes on the Closing Date and will be reduced by the
amount of any principal payments on the Class A-2 Notes.
(ii) The notional amount of the Class A-3 Interest Rate
Swap hedging the interest expense on the Class A-3 Notes
will be initially equal to the principal amount of the Class
A-3 Notes on the Closing Date and will be reduced by the
amount of any principal payments on the Class A-3 Notes.
(iii) The notional amount of the Class A-4 Interest
Rate Swap hedging the interest expense on the Class A-4
Notes will be initially equal to the principal amount of the
Class A-4 Notes on the Closing Date and will be reduced by
the amount of any principal payments on the Class A-4 Notes.
(iv) The notional amount of the Class B Interest Rate
Swap hedging the interest expense on the Class B Notes will
be initially equal to the principal amount of the Class B
Notes on the Closing Date and will be reduced by the amount
of any principal payments on the Class B Notes.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swaps will rank senior to
interest payments on the Class A Notes, Class A Swap Termination Payments will
rank pari passu with interest payments on the Class A Notes and Class B Swap
Termination Payments will rank pari passu with interest payments on the Class
B Notes, all as set forth in Section 8.2 hereof and Section 4.6 of the Sale
and Servicing Agreement.
(c) The Indenture Trustee will be responsible for remitting Net Swap
Payments and any Swap Termination Payments payable to each Swap Counterparty
and for collecting the Net Swap Receipts and any Swap Termination Payments
payable to the Issuer, as applicable, on each Payment Date.
(d) In the event that a Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of the
applicable Interest Rate Swap Agreement, the Indenture Trustee, upon written
request of the Administrator, shall establish individual collateral accounts
and will hold any securities deposited therein in trust and will invest any
cash amounts in accordance with the provisions of such Interest Rate Swap
Agreement.
(e) The Administrator shall calculate and provide written
notification to the related Swap Counterparty and to the Indenture Trustee of
the notional amount of each Interest Rate Swap as of each Payment Date on or
before the twelfth day of the month of the related Payment Date. The
Administrator shall also obtain the calculation of LIBOR from the Calculation
Agent under this Agreement and shall calculate the amount, for each Payment
Date, of all Net Swap Payments, Net Swap Receipts, and Swap Termination
Payments payable on each Payment Date and shall provide written notification
of such amounts to the related Swap Counterparties and to the Indenture
Trustee prior to such Payment Date. At least five days before the effective
date of any proposed amendment or supplement to an Interest Rate Swap
Agreement, the Administrator shall provide the Rating Agencies with a copy of
such amendment or supplement. Unless the amendment or supplement clarifies any
term or provision, corrects any inconsistency, cures any ambiguity, or
corrects any typographical error in such Interest Rate Swap Agreement, an
amendment or supplement to such Interest Rate Swap Agreement will be effective
only after satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of any Interest Rate
Swap Agreement due to an Event of Default or Termination Event (as each such
term is defined in such Interest Rate Swap Agreement), the Issuer will use
reasonable efforts to enter into a replacement interest rate swap agreement on
terms similar to those of such Interest Rate Swap Agreement with an eligible
swap counterparty unless the Indenture Trustee sells the Indenture Trust
Estate pursuant to Section 5.4(a)(iv). The Issuer shall take action as the
Indenture Trustee may request to compel or secure the performance and
observance by the Swap Counterparties of their obligations under the Interest
Rate Swap Agreements, as provided in Section 5.16(e) and 5.16(f).
(g) Each Interest Rate Swap Agreement shall provide that a
termination event will occur thereunder if:
(i) the long-term rating of The Chase Manhattan Bank is
suspended, withdrawn or downgraded below a rating of "A2" by
Xxxxx'x and, within 30 days of such suspension, withdrawal
or downgrade the Swap Counterparty fails to (i) deliver or
post collateral reasonably acceptable to the Issuer and
acceptable to Xxxxx'x in amounts sufficient or in accordance
with the standards of Xxxxx'x (as such standards may be
modified while any transaction is still outstanding) to
secure its obligations under the interest rate swap
agreement, (ii) assign its rights and obligations under the
interest rate swap agreement to a replacement counterparty
reasonably acceptable to the Issuer and to Xxxxx'x or (iii)
establish other arrangements necessary, if any, (including,
without limitation, causing an entity with ratings such that
if the Swap Counterparty or its credit support provider had
such ratings, the suspension, withdrawal or downgrade would
not have occurred, to guarantee or provide an indemnity in
respect of the Swap Counterparty's or its credit support
provider's obligations under the interest rate swap
agreement in form and substance reasonably satisfactory to
Xxxxx'x) in each case so that Xxxxx'x confirms the ratings
of the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes and the Class B Notes that were in effect immediately
prior to such suspension, withdrawal or downgrade;
(ii) the short-term rating of The Chase Manhattan Bank
is suspended, withdrawn or downgraded below a rating of
"A-1" by S&P and, within 30 days of such suspension,
withdrawal or downgrade the Swap Counterparty fails to (i)
assign its rights and obligations under the interest rate
swap agreement to a replacement counterparty reasonably
acceptable to the Issuer and to S&P or (ii) establish other
arrangements necessary, if any, (including, without
limitation, causing an entity with ratings such that if the
Swap Counterparty or its credit support provider had such
ratings, the suspension, withdrawal or downgrade would not
have occurred, to guarantee or provide an indemnity in
respect of the Swap Counterparty's or its credit support
provider's obligations under the interest rate swap
agreement in form and substance reasonably satisfactory to
S&P) in each case so that S&P confirms the ratings of the
Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes
and the Class B Notes that were in effect immediately prior
to such suspension, withdrawal or downgrade; or
(iii) the long-term rating or the short-term rating of
The Chase Manhattan Bank is suspended, withdrawn or
downgraded below a rating of "A" or "F1," respectively, by
Fitch and, within 30 days of such suspension, withdrawal or
downgrade the Swap Counterparty fails to (i) deliver or post
collateral reasonably acceptable to the Issuer and
acceptable to Fitch in amounts sufficient or in accordance
with the standards of Fitch (as such standards may be
modified while any transaction is still outstanding) to
secure its obligations under the interest rate swap
agreement, (ii) assign its rights and obligations under the
interest rate swap agreement to a replacement counterparty
reasonably acceptable to the Issuer and to Fitch or (iii)
establish other arrangements necessary, if any, (including,
without limitation, causing an entity with ratings such that
if the Swap Counterparty or its credit support provider had
such ratings, the suspension, withdrawal or downgrade would
not have occurred, to guarantee or provide an indemnity in
respect of the Swap Counterparty's or its credit support
provider's obligations under the interest rate swap
agreement in form and substance reasonably satisfactory to
Fitch) in each case so that Fitch confirms the ratings of
the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes and the Class B Notes that were in effect immediately
prior to such suspension, withdrawal or downgrade.
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee (a) not more than five (5) days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the
names and addresses of the Holders of Notes as of such Record Date and (b) at
such other times as the Indenture Trustee may request in writing, within
thirty (30) days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than ten (10) days prior to the
time such list is furnished; provided, however, that so long as (i) the
Indenture Trustee is the Note Registrar or (ii) the Notes are issued as
Book-Entry Notes, no such list shall be required to be furnished.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen
(15) days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission
in accordance with the rules and regulations prescribed from
time to time by the Commission such additional information,
documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) and by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a) If
required by TIA Section 313(a), within sixty (60) days after each March 31,
beginning with March 31, 2002, the Indenture Trustee shall mail to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing to Noteholders
shall be filed by the Indenture Trustee with the Commission and each stock
exchange, if any, on which the Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture and the
Sale and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
Section 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, (i) for the benefit of the Noteholders and the
Certificateholders, each of the Trust Accounts other than the 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), 4.1(d) and 4.12 of the Sale and Servicing
Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in the
Collection Account all amounts required to be deposited therein with respect
to the related Collection Period as provided in Sections 4.2 and 4.4 of the
Sale and Servicing Agreement. On or before each Payment Date, all amounts
required to be deposited in the Note Payment Account with respect to the
related Collection Period pursuant to Sections 4.6 and 4.7 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the
Collection Account and/or the Reserve Account and deposited to the Note
Payment Account for payment to Noteholders in accordance with Section 2.8 on
such Payment Date. The Indenture Trustee shall direct the applicable Swap
Counterparties to deposit, and shall otherwise cause to be deposited on each
Payment Date, any Net Swap Receipts then due and payable in the Collection
Account. In addition, the Indenture Trustee shall direct the applicable Swap
Counterparties to deposit, and shall otherwise cause to be deposited, all Swap
Termination Payments paid by Swap Counterparties to the Trust into the
Collection Account; provided, that, upon direction of the Issuer, the
Indenture Trustee may retain a part or all of such Swap Termination Payments
to be applied as an initial payment to a replacement Swap Counterparty or Swap
Counterparties, and provided further that the Indenture Trustee shall promptly
deposit any retained amounts that are not so applied to the Collection
Account.
Section 8.3 General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Collection Account, the Pre-Funding Account, the
Payahead Account, the Reserve Account, the Negative Carry Account and the
Yield Supplement Account shall be invested by the Indenture Trustee at the
direction of the Servicer in Permitted Investments as provided in Sections
4.1, 4.7 and 5.1 of the Sale and Servicing Agreement. All income or other gain
(net of losses and investment expenses) from investments of monies deposited
in the Collection Account, the Pre-Funding Account, the Payahead Account, the
Reserve Account, the Negative Carry Account and the Yield Supplement Account
shall be withdrawn by the Indenture Trustee from such accounts and distributed
(but only under the circumstances set forth in the Sale and Servicing
Agreement in the case of the Pre-Funding Account, the Reserve Account, the
Negative Carry Account and the Yield Supplement Account) as provided in
Sections 4.1, 4.7 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 and all amounts (including Swap Termination Payments)
owing under each Interest Rate Swap Agreement have been paid in full, release
any remaining portion of the Trust Estate that secured the Issuer's
obligations under the Notes and the Interest Rate Swap Agreements from the
lien of this Indenture and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee
shall release property from the lien of this Indenture pursuant to this
Section 8.4(b) only upon receipt of (i) an Issuer Request accompanied by
confirmation that all amounts owing by the Issuer under each Interest Rate
Swap Agreement have been paid, an Officer's Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent, if any, provided
for in this Indenture relating to the release of the property from the lien of
this Indenture have been complied with, provided that counsel rendering any
such opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) if required by the TIA,
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
Section 8.5 Opinion of Counsel. The Indenture Trustee shall receive
at least seven (7) days notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.4(b), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture,
or better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the
Issuer, and the assumption by any such successor of the
covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any
right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may
be inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture
which will not be inconsistent with other provisions of the
Indenture; provided that such action shall not materially
adversely affect the interests of the Noteholders or
adversely affect the rights or obligations of any Swap
Counterparty under the related Interest Rate Swap Agreement,
or modify or impair the ability of the Issuer to fully
perform any of its obligations under any Interest Rate Swap
Agreement (and, so long as a copy of the proposed amendment
or supplement has been delivered to each of the parties
listed in Section 11.4(c) with respect to the Swap
Counterparty and makes clear that the Swap Counterparty has
no longer than ten Business Days to object to such amendment
or supplement, the Swap Counterparty's consent will be
deemed to have been given if the Swap Counterparty does not
object in writing within ten Business Days of receipt of a
written request for such consent);
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to
the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA or
under any similar federal statute hereafter enacted and to
add to this Indenture such other provisions as may be
expressly required by the TIA; or
(viii) to add, delete or modify any provisions
necessary or advisable to allow the Receivables to be
derecognized by MMCA under GAAP or to allow the Issuer to
avoid becoming a member of MMCA's consolidated group under
GAAP;
provided, however, that (i) such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or of the Swap Counterparty, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action and (iii)
such action shall not, as evidenced by an Opinion of Counsel, cause the
Issuer to be characterized for Federal or any then Applicable Tax State
income tax purposes as an association taxable as a corporation or otherwise
have any material adverse impact on the Federal or any then Applicable Tax
State income taxation of any Notes Outstanding or outstanding Certificates
or any Noteholder or Certificateholder. The Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained;
(b) Notwithstanding anything contained herein to the contrary, this
Indenture may be amended by the parties hereto, whose consent to so amend this
Indenture will not be unreasonably withheld, but without the consent of any
Noteholders, to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable: (a) the transfer to the Issuer of all or any
portion of the Receivables to be derecognized by MMCA under GAAP, (b) the
Issuer to avoid becoming a member of MMCA's consolidated group under GAAP or
(c) the Issuer or any affiliate of the Seller to otherwise comply with or
obtain more favorable treatment under any law or regulation or any accounting
rule or principle; provided, however, it being a condition to any such
amendment that the Rating Agency Condition shall have been met; provided,
further, that in the case of any amendment hereunder, the Administrator shall
furnish to the Indenture Trustee an Opinion of Counsel which provides that:
(i) the interests of the Noteholders and the Swap Counterparty will not be
materially and adversely affected by the amendment and (ii) the amendment will
not significantly change the permitted activities of the Issuer; and provided,
further, that no such amendment shall be inconsistent with the derecognition
by MMCA of the Receivables under GAAP or cause the Issuer to become a member
of MMCA's consolidated group under GAAP.
Section 9.2 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the principal amount of the Notes
Outstanding, by Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or modifying in any manner the rights
of the Holders of the Notes under this Indenture; provided, however, that (i)
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder, (ii) the Rating
Agency Condition shall have been satisfied with respect to such action, (iii)
such action shall not, as evidenced by an Opinion of Counsel, cause the Issuer
to be characterized for Federal or any then Applicable Tax State income tax
purposes as an association taxable as a corporation or otherwise have any
material adverse impact on the Federal or any then Applicable Tax State income
taxation of any Notes Outstanding or outstanding Certificates or any
Noteholder or Certificateholder, and (iv) (x) such action shall not materially
adversely affect the rights or obligations of any Swap Counterparty under the
related Interest Rate Swap Agreement or modify the obligations of, or impair
the ability of the Issuer to fully perform any of its obligations under such
Interest Rate Swap Agreement or (y) each Swap Counterparty shall have
consented thereto (so long as a copy of the proposed amendment or supplement
has been delivered to each of the parties listed in Section 11.4(c) with
respect to the Swap Counterparty and makes clear that the Swap Counterparty
has no longer than ten Business Days to object to such amendment or
supplement, the Swap Counterparty's consent will be deemed to have been given
if the Swap Counterparty does not object in writing within ten Business Days
of receipt of a written request for such consent); and provided, further, that
no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Note affected thereby:
(i) change any Stated Maturity Date or the date of
payment of any installment of principal of or interest on any
Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change
the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust
Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair
the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of
any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage of the principal amount of
the Notes Outstanding, the consent of the Holders of which
is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver
of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided
for in this Indenture;
(iii) modify or alter the provisions of the proviso to
the definition of the term "Outstanding";
(iv) reduce the percentage of the principal amount of
the Notes Outstanding required to direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount and accrued but
unpaid interest on the Notes and the Certificates;
(v) modify any provision of this Indenture specifying a
percentage of the aggregate principal amount of the Notes
necessary to amend this Indenture or the other Basic
Documents except to increase any percentage specified herein
or to provide that certain additional provisions of this
Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding
Note affected thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of
any payment of interest or principal due on any Note on any
Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any
provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any lien ranking prior to
or on a parity with the lien of this Indenture with respect
to any part of the Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this
Indenture on any such collateral at any time subject hereto
or deprive the Holder of any Note of the security provided
by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in
good faith or on the basis of an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section 9.2, the Indenture
Trustee shall mail to each Swap Counterparty a copy of such supplemental
indenture and to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that all conditions precedent
to the execution and delivery of such supplemental indenture have been
satisfied. The Indenture Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Indenture Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Issuer and the Holders of
the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
Section 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X - REDEMPTION OF NOTES
Section 10.1 Redemption. (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.
(b) In the event that on or prior to the Payment Date on which the
Pre-Funding Period ends (or, if the Pre-Funding Period does not end on a
Payment Date, the immediately succeeding Payment Date) the Remaining
Pre-Funded Amount has been withdrawn from the Pre-Funding Account and
deposited to the Collection Account by the Indenture Trustee at the direction
of the Servicer pursuant to Section 4.11(b) of the Sale and Servicing
Agreement, the Remaining Pre-Funded Amount shall be treated as a part of the
Available Funds and the Principal Distribution Amount for such Payment Date.
Section 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1(a) shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted promptly following
receipt of notice from the Issuer or Servicer pursuant to Section 10.1(a), but
not later than 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.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such
certificate or opinion has read or has caused to be
read such covenant or condition and the definitions
herein relating thereto;
(B) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory
to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(D) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has
been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within ninety (90) days of such deposit) to
the Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the
property or securities to be so deposited and of all other
such property or securities made the basis of any such
withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this
clause (ii), is ten percent (10%) or more of the principal
amount of the Notes Outstanding, but such a certificate need
not be furnished with respect to any property or securities
so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than
$25,000 or less than one percent (1%) of the principal
amount of the Notes Outstanding.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall
also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety
(90) days of such release) of the property or securities
proposed to be released and stating that in the opinion of
such person the proposed release will not impair the
security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (iii) above, the Issuer shall also
furnish to the Indenture Trustee an Independent Certificate
as to the same matters if the fair value of the property or
securities and of all other property, other than property as
contemplated by clause (v) below or securities released from
the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates
required by clause (iii) above and this clause (iv), equals
ten percent (10%) or more of the principal amount of the
Notes Outstanding, but such certificate need not be
furnished in the case of any release of property or
securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less
than one percent (1%) of the principal amount of the then
Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other
provisions of this Section 11.1, the Issuer may, without
compliance with the requirements of the other provisions of
this Section 11.1, (A) collect, liquidate, sell or otherwise
dispose of Receivables and Financed Vehicles as and to the
extent permitted or required by the Basic Documents and (B)
make cash payments out of the Trust Accounts as and to the
extent permitted or required by the Basic Documents.
Section 11.2 Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of a Responsible Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is
in the possession of the Servicer, the Seller, the Administrator or the
Issuer, unless such Responsible Officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, comments, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
Section 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied herein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall
be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to:
MMCA Auto Owner Trust 2001-3,
c/o Wilmington Trust Company
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.
(c) Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee, the Owner Trustee or the initial Swap
Counterparty shall be in writing, personally delivered, sent by facsimile or
mailed by certified mail, return receipt requested, to
in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
in the case of S&P, at the following address:
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
in the case of Fitch, at the following address:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Fax: (000) 000-0000
in the case of the initial Swap Counterparty as of the
Closing Date, at the following address:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Fax: (000) 000-0000
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx (Derivatives Marketing)
Fax: (000) 000-0000
and with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department - Capital Markets Group
Fax: (000) 000-0000
Section 11.5 Notices to Noteholders; Waiver. (a) Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default
or Event of Default.
Section 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by the Indenture Trustee or any Paying Agent to
such Holder, that is different from the methods provided for in this Indenture
for such payments or notices. The Issuer shall furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee shall cause
payments to be made and notices to be given in accordance with such
agreements.
Section 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind its successors, co-trustees and agents.
Section 11.10 Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, the Swap
Counterparties, and any other party secured hereunder, and any other Person
with an ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture; provided, that
no Swap Counterparty shall have any right to institute any Proceeding,
judicial or otherwise, with respect to enforcement of remedies under Article V
of this Indenture upon the occurrence of an Event of Default.
Section 11.12 Legal Holiday. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest
shall accrued for the period from and after any such nominal date.
Section 11.13 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York.
Section 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacities), and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
Section 11.17 No Petition; Subordination; Claims Against Seller. The
Indenture Trustee, by entering into this Indenture, and each Noteholder or
Note Owner, by accepting a Note or beneficial interest in a Note, as the case
may be, hereby covenant and agree that (a) they will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Basic
Documents, (b) any claim that they may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim they have at any
time against the Seller that they may seek to enforce against the Subtrust
Assets of any Subtrust unrelated to the Notes, shall be subordinate to the
payment in full, including post-petition interest, in the event that the
Seller becomes a debtor or debtor in possession in a case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in effect or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust and (c) they hereby irrevocably make the election afforded
by Title 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 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.
WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto
duly authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Financial Services Officer
By: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ X. Xxxxxxxxx
--------------------------
Name: X. Xxxxxxxxx
Title: Trust Officer
SCHEDULE A
----------
Schedule of Receivables provided to Indenture Trustee
on Computer Tape, Compact Disk or Microfiche
SCHEDULE I
----------
List of Permitted Investments
Account(s) Permitted Investments
---------- ---------------------
Collection Account Federated Government Obligations Fund
Negative Carry Account Federated Government Obligations Fund
Payahead Account Federated Government Obligations Fund
Pre-Funding Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
EXHIBIT A-1
-----------
[Form of Class A-1 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $222,000,000
No. R-1 CUSIP NO. 553083 BT 2
MMCA AUTO OWNER TRUST 2001-3
2.470% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, 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 TWO HUNDRED TWENTY TWO MILLION DOLLARS payable
on each Payment Date in the aggregate amount, if any, payable from the Note
Payment Account in respect of principal on the Class A-1 Notes pursuant to
Section 2.8 of the Indenture, dated as of October 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Class A-1 Note shall be due and
payable on the earlier of the October 2002 Payment Date (the "Class A-1 Stated
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this 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.
The Issuer shall pay interest on this Class A-1 Note at the rate per
annum shown above on each Payment Date until the principal of this Class A-1
Note is paid or made available for payment, on the principal amount of this
Class A-1 Note outstanding on the preceding Payment Date (after giving effect
to all payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Class A-1 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date, or if no
interest has been paid, from and including the Closing Date) to but excluding
such Payment Date. Interest will be computed on the basis of the actual number
of days elapsed and a 360-day year. Such principal of and interest on this
Class A-1 Note shall be paid in the manner specified on the reverse side
hereof.
The principal of and interest on this Class A-1 Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-1 Note shall be applied first
to interest due and payable on this Class A-1 Note as provided above and then
to the unpaid principal of this Class A-1 Note.
Reference is made to the further provisions of this Class A-1 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-1 Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument
to be signed, manually or in facsimile, by its Responsible Officer, as of
the date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 2.470% Class A-1 Asset Backed Notes, which, together
with the Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate Class
A-3 Asset-Backed Notes, the Floating Rate Class A-4 Asset-Backed Notes and the
Floating Rate Class B Asset-Backed Notes (collectively, the "Notes"), are
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-1 Notes are equal
in right of payment to the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes and senior in right of payment to the Class B Notes, and the Class
A-1 Notes are subordinate to the rights of the Swap Counterparties to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreements, each as and to the extent provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-1 Note shall be due and payable on the earlier of the Class A-1 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-1 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of all the Notes Outstanding of all Classes, voting as a group, have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class A-1 Notes
shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-1 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-1 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-1
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-1 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-1
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-1
Note and of any Class A-1 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-1 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-1 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-1 Note may be registered on the
Note Register upon surrender of this Class A-1 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-1
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-1
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
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 not this Class A-1 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest
Rate Swap Agreements or modifies the obligations of, or impairs the ability
of, the Issuer to fully perform any of its obligations under such Interest
Rate Swap Agreements. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Class A Notes
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Class A-1 Note (or any one or more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-1 Note and of any Class A-1 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class A-1 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of
the Notes (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-1 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-1
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-2
-----------
[Form of Class A-2 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $244,000,000
No. R-1 CUSIP NO. 553083 BU 9
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, 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 TWO HUNDRED FORTY FOUR MILLION DOLLARS payable
on each Payment Date in the aggregate amount, if any, payable from the Note
Payment Account in respect of principal on the Class A-2 Notes pursuant to
Section 2.8 of the Indenture, dated as of October 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity, the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Class A-2 Note shall be due and
payable on the earlier of the May 2004 Payment Date (the "Class A-2 Stated
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this 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.
The Issuer shall pay interest on this Class A-2 Note at a per annum
rate equal to the London Interbank Offered Rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.18% on the principal
amount of this Class A-2 Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a
per annum rate equal to 2.53125% on the original principal amount outstanding
on the Closing Date), subject to certain limitations contained in Section 3.1
of the Indenture, until the principal of this Class A-2 Note is paid or made
available for payment. Interest on this Class A-2 Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case of
the initial Payment Date, or if no interest has been paid, from and including
the Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Class A-2 Note shall be paid in the
manner specified on the reverse side hereof.
The principal of and interest on this Class A-2 Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-2 Note shall be applied first
to interest due and payable on this Class A-2 Note as provided above and then
to the unpaid principal of this Class A-2 Note.
Reference is made to the further provisions of this Class A-2 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-2 Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
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: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By: __________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________
Responsible Officer
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-2 Asset Backed Notes, which,
together with the 2.470% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-3 Asset-Backed Notes, the Floating Rate Class A-4 Asset-Backed Notes and the
Floating Rate Class B Asset-Backed Notes (collectively, the "Notes"), are
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-2 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-3 Notes and the Class
A-4 Notes and senior in right of payment to the Class B Notes, and the Class
A-2 Notes are subordinate to the rights of the Swap Counterparties to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreements, each as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the
fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the Class A-2 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-2 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of all the Notes Outstanding of all Classes, voting as a group, have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class A-2 Notes
shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-2 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-2 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-2
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-2 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-2
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-2
Note and of any Class A-2 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-2 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-2 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-2 Note may be registered on the
Note Register upon surrender of this Class A-2 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-2
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-2
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
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 not this Class A-2 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest
Rate Swap Agreements or modifies the obligations of, or impairs the ability
of, the Issuer to fully perform any of its obligations under such Interest
Rate Swap Agreements. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Class A Notes
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Class A-2 Note (or any one or more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-2 Note and of any Class A-2 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class A-2 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of
the Notes (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-2 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-2
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-3
-----------
[Form of Class A-3 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $437,000,000
No. R-1 CUSIP NO. 553083 BV 7
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, 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 FOUR HUNDRED THIRTY SEVEN MILLION DOLLARS
payable on each Payment Date in the aggregate amount, if any, payable from the
Note Payment Account in respect of principal on the Class A-3 Notes pursuant
to Section 2.8 of the Indenture, dated as of October 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity, the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Class A-3 Note shall be due and
payable on the earlier of the February 2006 Payment Date (the "Class A-3
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
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.
The Issuer shall pay interest on this Class A-3 Note at a per annum
rate equal to the London Interbank Offered Rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.25% on the principal
amount of this Class A-3 Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a
per annum rate equal to 2.53125% on the original principal amount outstanding
on the Closing Date), subject to certain limitations contained in Section 3.1
of the Indenture, until the principal of this Class A-3 Note is paid or made
available for payment. Interest on this Class A-3 Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from and including
the Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Class A-3 Note shall be paid in the
manner specified on the reverse side hereof.
The principal of and interest on this Class A-3 Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-3 Note shall be applied first
to interest due and payable on this Class A-3 Note as provided above and then
to the unpaid principal of this Class A-3 Note.
Reference is made to the further provisions of this Class A-3 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-3 Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
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: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: _________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: _________________________
Responsible Officer
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-3 Asset Backed Notes, which,
together with the 2.470% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-2 Asset-Backed Notes, the Floating Rate Class A-4 Asset-Backed Notes and the
Floating Rate Class B Asset-Backed Notes (collectively, the "Notes"), are
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-3 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-4 Notes and senior in right of payment to the Class B Notes, and the Class
A-3 Notes are subordinate to the rights of the Swap Counterparties to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreements, each as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the Class A-3 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-3 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of all the Notes Outstanding of all Classes, voting as a group, have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class A-3 Notes
shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-3 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-3 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-3
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-3 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-3
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-3
Note and of any Class A-3 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-3 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-3 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-3 Note may be registered on the
Note Register upon surrender of this Class A-3 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-3
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-3
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
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 not this Class A-3 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest
Rate Swap Agreements or modifies the obligations of, or impairs the ability
of, the Issuer to fully perform any of its obligations under such Interest
Rate Swap Agreements. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Class A Notes
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Class A-3 Note (or any one or more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-3 Note and of any Class A-3 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class A-3 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of
the Notes (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-3 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-3
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-4
-----------
[Form of Class A-4 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $399,400,000
No. R-1 CUSIP NO. 553083 BW 5
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, 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 THREE HUNDRED NINETY NINE MILLION FOUR HUNDRED
THOUSAND DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class A-4
Notes pursuant to Section 2.8 of the Indenture, dated as of October 1, 2001
(as amended, supplemented or otherwise modified and in effect from time to
time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee (in such
capacity, the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Class A-4 Note shall
be due and payable on the earlier of the April 2007 Payment Date (the "Class
A-4 Stated Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. In addition, the unpaid principal amount of
this 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.
The Issuer shall pay interest on this Class A-4 Note at a per annum
rate equal to the London Interbank Offered Rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.30% on the principal
amount of this Class A-4 Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a
per annum rate equal to 2.53125% on the original principal amount outstanding
on the Closing Date), subject to certain limitations contained in Section 3.1
of the Indenture, until the principal of this Class A-4 Note is paid or made
available for payment. Interest on this Class A-4 Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from and including
the Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Class A-4 Note shall be paid in the
manner specified on the reverse side hereof.
The principal of and interest on this Class A-4 Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Class A-4 Note shall be applied first
to interest due and payable on this Class A-4 Note as provided above and then
to the unpaid principal of this Class A-4 Note.
Reference is made to the further provisions of this Class A-4 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-4 Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
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: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By: _______________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: _______________________
Responsible Officer
This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-4 Asset Backed Notes, which,
together with the 2.470% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-2 Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed Notes and the
Floating Rate Class B Asset-Backed Notes (collectively, the "Notes"), are
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class A-4 Notes are equal
in right of payment to the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes and senior in right of payment to the Class B Notes, and the Class
A-4 Notes are subordinate to the rights of the Swap Counterparties to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreements, each as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing on November 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-4 Note shall be due and payable on the earlier of the Class A-4 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. In addition, the unpaid principal amount of this Class A-4 Note
may be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of
a pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than a
majority of all the Notes Outstanding of all Classes, voting as a group, have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class A-4 Notes
shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class A-4 Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Class
A-4 Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Class A-4
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class A-4 Note be submitted for
notation of payment. Any reduction in the principal amount of this Class A-4
Note (or any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this Class A-4
Note and of any Class A-4 Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds
are expected to be available, as provided in the Indenture, for payment in
full of the then remaining unpaid principal amount of this Class A-4 Note on a
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof as of the
Record Date preceding such Payment Date by notice mailed or transmitted by
facsimile prior to such Payment Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Class A-4 Note
at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-4 Note may be registered on the
Note Register upon surrender of this Class A-4 Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, and thereupon one or more new Class A-4
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-4
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
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 not this Class A-4 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest
Rate Swap Agreements or modifies the obligations of, or impairs the ability
of, the Issuer to fully perform any of its obligations under such Interest
Rate Swap Agreements. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Class A Notes
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Class A-4 Note (or any one or more Predecessor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-4 Note and of any Class A-4 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class A-4 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of
the Notes (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class A-4 Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class A-4
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT B
---------
[Form of Class B Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $98,440,000
No. R-1 CUSIP NO. 553083 BX 3
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, 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 NINETY EIGHT MILLION FOUR HUNDRED FORTY THOUSAND
DOLLARS payable on each Payment Date in the aggregate amount, if any, payable
from the Note Payment Account in respect of principal on the Class B Notes
pursuant to Section 2.8 of the Indenture, dated as of October 1, 2001 (as
amended, supplemented or otherwise modified and in effect from time to time,
the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee (in such
capacity, the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Class B Note shall be
due and payable on the earlier of the November 2008 Payment Date (the "Class B
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
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.
The Issuer shall pay interest on this Class B Note at a per annum
rate equal to the London Interbank Offered Rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.95% on the principal
amount of this Class B Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a
per annum rate equal to 2.53125% on the original principal amount outstanding
on the Closing Date), subject to certain limitations contained in Section 3.1
of the Indenture, until the principal of this Class B Note is paid or made
available for payment. Interest on this Class B Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from and including
the Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
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.
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: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By: __________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________
Responsible Officer
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class B Asset Backed Notes, which,
together with the 2.470% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-2 Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed Notes and the
Floating Rate Class A-4 Asset-Backed Notes (collectively, the "Notes"), are
issued under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class B
Notes are subordinated in right of payment to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, and to
amounts payable to the Swap Counterparties pursuant to the Interest Rate
Swap Agreements, as and to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of this Class
B Note shall be due and payable on the earlier of the Class B Stated Maturity
Date and the Redemption Date, if any, pursuant to Section 10.1(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 all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class B Notes shall be made pro rata
to the Holders entitled thereto.
Payments of interest on this Class B Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Class B Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Class B Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Class B Notes
registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Class B Note be submitted for notation
of payment. Any reduction in the principal amount of this Class B Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment
Date shall be binding upon all future Holders of this Class B Note and of any
Class B Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class B Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile prior
to such Payment Date, and the amount then due and payable shall be payable
only upon presentation and surrender of this Class B Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class B Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class B Note may be registered on the Note
Register upon surrender of this Class B Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class B Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Class B Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents
and (b) any claim that such Noteholder or Note Owner may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim that such Noteholder may have against the Seller that such Noteholder
may seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any other
notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall
be deemed to represent that its acquisition, holding and disposition of the
Note or beneficial interest in the Note, as applicable, does not give rise to
a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE
CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY
MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION
1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY
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 this Class B Note be overdue, and none of the Issuer, the Indenture
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of the all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest
Rate Swap Agreements or modifies the obligations of, or impairs the ability
of, the Issuer to fully perform any of its obligations under such Interest
Rate Swap Agreements. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Notes Outstanding
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class B Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class B Note
and of any Class B Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class B Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class B Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust
Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal or of interest on
this Class B Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note, by his acceptance hereof, agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Class B
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT C
---------
FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)
October 12, 2001
Re: MMCA Auto Owner Trust 2001-3 - Security Interest Matters
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit of
America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto Receivables
Trust, a Delaware business trust ("MART"), in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of October 1, 2001 (the
"Purchase Agreement"), between MMCA and MART, (ii) the Sale and Servicing
Agreement, dated as of October 1, 2001 (the "Sale and Servicing Agreement"),
by and among MART, as seller, MMCA, as servicer, and MMCA Auto Owner Trust
2001-3, a Delaware business trust (the "Trust"), as issuer, (iii) the
Indenture, dated as of October 1, 2001 (the "Indenture"), between the Trust
and Bank of Tokyo-Mitsubishi Trust Company, as indenture trustee for the
benefit of the Holders of the Notes (the "Indenture Trustee") and (iv) the
Amended and Restated Trust Agreement, dated as of October 1, 2001 (the "Trust
Agreement"), between MART and Wilmington Trust Company, as owner trustee.
Capitalized terms not otherwise defined herein have the meanings assigned to
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, those motor vehicle retail installment sale contracts identified on
the Schedule of Receivables attached as Exhibit B to the Purchase Agreement on
the date hereof (collectively, the "Receivables") secured by new and used
automobiles and sport-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, MMCA's
rights under certain insurance policies, certain rights under dealer
agreements relating to the Receivables and certain other property related to
the Receivables and all the proceeds thereof.
Pursuant to the Sale and Servicing Agreement, MART will sell to the
Trust all of its right, title and interest in, to and under the Receivables,
certain monies due or received thereunder on or after the related Cutoff
Dates, certain other property relating to the Receivables and all proceeds
thereof. The Trust will issue $222,000,000 principal amount of 2.470% Class
A-1 Asset Backed Notes (the "Class A-1 Notes"), $244,000,000 principal amount
of Floating Rate Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
$437,000,000 principal amount of Floating Rate Class A-3 Asset Backed Notes
(the "Class A-3 Notes"), $399,400,000 principal amount of Floating Rate Class
A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"), and
$98,440,000 principal amount of Floating Rate Class B Asset Backed Notes (the
"Class B Notes" and, together with the Class A Notes, the "Notes"), pursuant
to the provisions of an Underwriting Agreement, dated October 3, 2001 (the
"Underwriting Agreement"), between MART and X.X. Xxxxxx Securities Inc., as
representative of the several underwriters named therein (in such capacity,
the "Representative"). The Trust also will issue $113,618,915.95 aggregate
principal amount of Asset Backed Certificates (the "Certificates") pursuant to
the Trust Agreement.
In our examination, we have assumed the genuineness of all signatures
(including endorsements), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such copies. As
to any facts material to this opinion which we did not independently establish
or verify, we have relied upon statements and representations of MMCA 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 with respect to prior financing statements,
dated the date hereof, a copy of which is attached as Exhibit A hereto (the
"MART Certificate");
(c) a Certificate of the Trust with respect to prior financing
statements, dated the date hereof, a copy of which is attached as Exhibit B
hereto (the "Trust Certificate");
(d) a certificate of the Secretary of State of the State of Delaware
dated October 4, 2001 and a bringdown certificate dated as of the Closing Date
as to the existence and good standing of MART (the "MART Good Standing
Certificate");
(e) a certificate of the Secretary of State of the State of Delaware
dated October 4, 2001 and a bringdown certificate dated as of the Closing Date
as to the existence and good standing of the Trust (the "Trust Good Standing
Certificate");
(f) an unfiled but signed copy of a financing statement naming "MMCA
Auto Receivables Trust" as debtor, "MMCA Auto Owner Trust 2001-3" as assignor
and "Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee" as secured
party/assignee, which we understand will be filed within ten (10) days of the
Closing Date in the office of the Secretary of State of the State of Delaware
(such filing office, the "Delaware Filing Office" and such financing
statement, the "MART/Trust Financing Statement");
(g) an unfiled copy of a financing statement naming "MMCA Auto Owner
Trust 2001-3" as debtor and "Bank of Tokyo-Mitsubishi Trust Company, as
Indenture Trustee" as secured party which we understand will be filed within
(10) ten days of the Closing Date in the Delaware Filing Office (such
financing statement, the "Issuer/Indenture Trustee Financing Statement");
(h) the reports of Lexis Document Services as to financing statements
naming "MMCA Auto Receivables Trust" as debtor and on file in the Delaware
Filing Office, as of an effective date of August 31, 2001 (the "MART Search
Report");
(i) the reports of Lexis Document Services as to financing statements
naming "MMCA Auto Owner Trust 2001-3" as debtor and on file in the Delaware
Filing Office, as of an effective date of August 30, 2001 (the "Trust Search
Report"); and
(j) such other agreements, certificates or documents as we have
deemed necessary or appropriate as a basis for the opinion set forth below.
As used herein, "New York UCC" means the Uniform Commercial Code as
in effect on the date hereof in the State of New York, "Delaware UCC" means
the Uniform Commercial Code as in effect on the date hereof in the State of
Delaware, "UCC" means the New York UCC or the Delaware UCC, as applicable
(without regard to laws referenced in Section 9-201 thereof) and (iv) "Initial
Receivables" means that portion of the Receivables identified on the Schedule
of Receivables attached as Exhibit B to the Purchase Agreement on the date
hereof.
We express no opinion as to the laws of any jurisdiction other than
the UCC.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. 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 New York UCC) in MART's rights in the Initial
Receivables and proceeds thereof, which security interest if characterized as
a transfer for security will secure payment of the Notes.
2. The provisions of the Sale and Servicing Agreement are sufficient
to constitute authorization by MART of the filing of the MART/Trust Financing
Statement for purposes of Section 9-509 of the Delaware UCC.
3. The MART/Trust Financing Statement includes all of the types of
information required by Sections 9-502(a) and 9-516 of the Delaware UCC in
order for such MART/Trust Financing Statement to be in appropriate form for
filing in the Delaware Filing Office.
4. Under the Delaware UCC, upon the later of the attachment of the
security interest and the filing of the MART/Trust Financing Statement in the
Delaware Filing Office, the security interest in favor of the Trust will be
perfected in MART's rights in the Initial Receivables and proceeds thereof. We
hereby confirm that Schedule C hereto identifies all persons who (i) are
identified in the MART Search Report as having filed in the Delaware Filing
Office a financing statement naming "MMCA Auto Receivables Trust" as debtor
and containing a description of collateral sufficient to include the Initial
Receivables as of the effective date of the MART Search Report, and (ii) have
not consensually released or subordinated their interest in the Initial
Receivables.
5. The provisions of the Indenture are effective to create in favor
of the Indenture Trustee for the benefit of the Holders of the Notes and the
Swap Counterparties (as defined in the Indenture), a valid security interest
under the New York UCC in the Trust's rights in the Initial Receivables and
proceeds thereof to secure payment of the Notes and payment of amounts payable
to the Swap Counterparties under the Interest Rate Swap Agreements.
6. The provisions of the Indenture are sufficient to constitute
authorization by the Trust of the filing of the Issuer/Indenture Trustee
Financing Statement for purposes of Section 9-509 of the Delaware UCC.
7. The Issuer/Indenture Trustee Financing Statement includes all of
the types of information required by Sections 9-502(a) and 9-516 of the
Delaware UCC in order for such Issuer/Indenture Trustee Financing Statement to
be in appropriate form for filing in the Delaware Filing Office.
8. Under the Delaware UCC, upon the later of the attachment of the
security interest and the filing of the Issuer/Indenture Trustee Financing
Statement in the Delaware Filing Office, the security interest of the
Indenture Trustee for the benefit of the Holders of the Notes and the Swap
Counterparties (as defined in the Indenture) will be perfected in the Trust's
rights in the Initial Receivables and proceeds thereof. We hereby confirm that
Schedule D hereto identifies all persons who (i) are identified in the Trust
Search Report as having filed in the Delaware Filing Office a financing
statement naming "MMCA Auto Owner Trust 2001-3" as debtor and containing a
description of collateral sufficient to include the Initial Receivables as of
the effective date of the Trust Search Report and (ii) have not consensually
released or subordinated their interest in the Initial Receivables.
9. You have asked us whether MART is a "registered organization" as
defined in the Delaware UCC. Pursuant to 12 Del. C. ss. 3812(a), the Secretary
of State of the State of Delaware is required to maintain a public record
showing MART to have been organized. Based on our review of a certified copy
of the certificate of trust of MART and the MART Good Standing Certificate, we
are of the opinion that under the Delaware UCC, MART is a "registered
organization".
10. You have asked us whether the Trust is a "registered
organization" as defined in the Delaware UCC. Pursuant to 12 Del. C. ss.
3812(a), the Secretary of State of the State of Delaware is required to
maintain a public record showing the Trust to have been organized. Based on
our review of a certified copy of the certificate of trust of the Trust and
the Trust Good Standing Certificate, we are of the opinion that under the
Delaware UCC, the Trust is a "registered organization."
Our opinions in paragraphs 1-10 above are subject to the following
qualifications:
(a) For purposes of opinion paragraphs 1 and 4, we have assumed that
the Initial Receivables exist and that MART owns the Initial Receivables and
we express no opinion as to the nature or extent of MART's rights in, or title
to, any of the Initial Receivables, and for purposes of our opinions in
paragraphs 5 and 8, we have assumed that the Initial Receivables exist and
that the Trust owns the Initial Receivables and we express no opinion as to
the nature or extent of the Trust's rights in, or title to, any of the Initial
Receivables;
(b) Our opinion with respect to proceeds is subject to the
limitations set forth in Section 9-315 of the UCC and, in addition, we call to
your attention that in the case of certain types of proceeds, other parties
such as holders in due course, protected purchasers of securities, persons who
obtain control over securities entitlements and buyers in the ordinary course
of business may acquire a superior interest or may take their interest free of
the respective security interest;
(c) We have assumed that there are no agreements between MART or the
Trust and any account debtor or person prohibiting, restricting or
conditioning the assignment of any portion of the Initial Receivables, except
to the extent that such anti-assignment provisions are rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC. We call to your
attention that in many cases where the UCC renders anti-assignment provisions
ineffective for purposes of creation, attachment or perfection of the security
interest, the security interest is not enforceable against the account debtor;
(d) We have assumed that the principal obligation of the account
debtor or obligor under each Initial Receivable is a monetary obligation;
(e) For purposes of our opinion paragraphs 9 and 10, we have assumed
that each of MART and the Trust is not organized under the laws of any
jurisdiction other than the State of Delaware and that the internal affairs of
MART and the Trust are not otherwise subject to the laws of any jurisdiction
other than Delaware. We call to your attention that to the extent that the
internal affairs of MART or the Trust are subject to regulation under the laws
of another State, the State of Delaware may recognize such authority. See,
e.g., XxXxxxxxx Inc. x. Xxxxx, 531 A.2d 206 (Del. 1987). Further, we have
assumed that each of MART and the Trust has not and will not file (A) any
certificates of transfer or continuance pursuant to Delaware General
Corporation Law ("DGCL") ss. 390(a), Delaware Revised Uniform Limited
Partnership Act ("DRULPA") ss. 17-216(a) or Delaware Limited Liability Company
Act ("DLLC") ss. 18-213(a), (B) any certificates of domestication pursuant to
DGCL ss. 388(b)(1), DRULPA ss. 17-215(i) or DLLC ss. 18-212(b) or (C) any
similar certificates in any jurisdiction other than the State of Delaware;
(f) Our opinion in paragraph 9 is based solely upon our review of the
MART Good Standing Certificate and the certificate of trust of MART;
(g) Our opinion in paragraph 10 is based solely upon our review of
the Trust Good Standing Certificate and the certificate of trust of the Trust;
(h) We note that we have delivered to you our opinion with respect to
the status of each of MART and the Trust as a "registered organization."
Except to the extent set forth in paragraphs 9 and 10 above, we express no
opinions as to the law governing perfection, the effect of perfection and
non-perfection or priority of the security interest;
(i) 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 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);
(j) We express no opinion whether or to what extent the transfer to
the Trust pursuant to the Sale and Servicing Agreement will be characterized
as a sale or a transfer for security;
(k) We have assumed that (i) the Sale and Servicing Agreement
constitutes the legal, valid and binding obligation of all parties thereto,
enforceable against all parties thereto in accordance with its terms and (ii)
the Indenture constitutes the legal, valid and binding obligation of all
parties thereto, enforceable against all parties thereto, in accordance with
its terms; and
(l) We express no opinion with respect to the security interest
granted to the Indenture Trustee for the benefit of any Person who becomes a
Swap Counterparty (as defined in the Indenture) after the date hereof.
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 B (to Opinion)
[SCHEDULE OF PRIOR FILERS]
Exhibit A (to Opinion)
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
Dated: __________
The undersigned, a duly authorized officer of MMCA AUTO RECEIVABLES
TRUST ("MART"), does hereby certify as follows:
(1) No financing statements or other filings have been filed naming
MART as debtor or seller in any State of the United States of America to
perfect a sale, transfer or assignment of or lien, encumbrance, security
interest or other interest in, or which otherwise pertains to, the
Receivables.
(2) At all times since the establishment of MART, MART has had one
place of business and it is and has been located in Cypress, California.
(3) At all times since the establishment of MART and on the date
hereof, MART has had a mailing address of X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx
00000-0000.
(4) Attached hereto as Annex A are forms of motor vehicle retail
installment sales contracts used to create the Receivables (the "Form
Contracts"), and each Receivable is substantially in the form of a Form
Contract.
Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Sale and Servicing Agreement, dated
as of October 1, 2001, by and among MART, Mitsubishi Motors Credit of America,
Inc., as Servicer, and MMCA Auto Owner Trust 2001-3, as Trust, and accepted
and agreed to by Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand to this Certificate as of the
day hereinabove set forth.
MMCA AUTO RECEIVABLES TRUST
By: ________________________________
Name:
Title:
Annex A (to Opinion)
[FORMS OF RETAIL INSTALLMENT SALES CONTRACT]
Annex B (to Opinion)
[CERTIFIED REPORT OF FILING OFFICE ON PRIOR FINANCING STATEMENTS]
ANNEX A
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FORM OF RETAIL INSTALLMENT SALE CONTRACT
