Exhibit 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2002-5,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of December 1, 2002
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$[ ] [ ]% Class A-1 Asset Backed Notes
$[ ] [ ]% Class A-2 Asset Backed Notes
$[ ] Floating Rate Class A-3 Asset Backed Notes
$[ ] Floating Rate Class A-4 Asset Backed Notes
$[ ] Floating Rate Class B Asset Backed Notes
$[ ] Floating Rate Class C 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
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE............................................................2
Section 1.1 Definitions.........................................................................2
Section 1.2 Incorporated by Reference of Trust Indenture Act....................................2
ARTICLE II - THE NOTES............................................................................................3
Section 2.1 Form................................................................................3
Section 2.2 Execution, Authentication and Delivery..............................................3
Section 2.3 Temporary Notes.....................................................................4
Section 2.4 Tax Treatment.......................................................................4
Section 2.5 Registration; Registration of Transfer and Exchange.................................4
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes..........................................5
Section 2.7 Persons Deemed Owner................................................................6
Section 2.8 Payments............................................................................6
Section 2.9 Cancellation.......................................................................10
Section 2.10 Release of Collateral..............................................................10
Section 2.11 Book-Entry Notes...................................................................10
Section 2.12 Notices to Clearing Agency.........................................................11
Section 2.13 Definitive Notes...................................................................11
Section 2.14 Authenticating Agents..............................................................12
ARTICLE III - COVENANTS..........................................................................................12
Section 3.1 Payment Covenant...................................................................12
Section 3.2 Maintenance of Office or Agency....................................................12
Section 3.3 Money for Payments To Be Held in Trust.............................................13
Section 3.4 Existence..........................................................................14
Section 3.5 Protection of Trust Estate.........................................................14
Section 3.6 Opinions as to Trust Estate........................................................15
Section 3.7 Performance of Obligations; Servicing of Receivables...............................15
Section 3.8 Negative Covenants.................................................................16
Section 3.9 Annual Statement as to Compliance..................................................17
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust Assets.........17
Section 3.11 No Other Business..................................................................17
Section 3.12 No Borrowing.......................................................................18
Section 3.13 Servicer's Obligations.............................................................18
Section 3.14 Guarantees, Loans, Advances and Other Liabilities..................................18
Section 3.15 Capital Expenditures...............................................................18
Section 3.16 Further Instruments and Acts.......................................................18
Section 3.17 Restricted Payments................................................................18
Section 3.18 Notice of Events of Default........................................................18
Section 3.19 Removal of Administrator...........................................................18
Section 3.20 Calculation Agent..................................................................18
ARTICLE IV - SATISFACTION AND DISCHARGE..........................................................................19
Section 4.1 Satisfaction and Discharge of Indenture............................................19
Section 4.2 Satisfaction and Discharge of the Notes............................................20
Section 4.3 Application of Trust Money.........................................................21
Section 4.4 Repayment of Monies Held by Paying Agent...........................................21
ARTICLE V - REMEDIES.............................................................................................21
Section 5.1 Events of Default..................................................................21
Section 5.2 Acceleration of Maturity; Rescission and Annulment.................................22
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..........23
Section 5.4 Remedies; Priorities...............................................................25
Section 5.5 Optional Preservation of the Receivables...........................................26
Section 5.6 Limitation of Suits................................................................27
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..............27
Section 5.8 Restoration of Rights and Remedies.................................................27
Section 5.9 Rights and Remedies Cumulative.....................................................27
Section 5.10 Delay or Omission Not a Waiver.....................................................28
Section 5.11 Control by Noteholders.............................................................28
Section 5.12 Waiver of Past Default.............................................................28
Section 5.13 Undertaking for Costs..............................................................29
Section 5.14 Waiver of Stay or Extension Laws...................................................29
Section 5.15 Action on Notes....................................................................29
Section 5.16 Performance and Enforcement of Certain Obligations.................................29
ARTICLE VI - THE INDENTURE TRUSTEE...............................................................................30
Section 6.1 Duties of Indenture Trustee........................................................30
Section 6.2 Rights of Indenture Trustee........................................................31
Section 6.3 Individual Rights of Indenture Trustee.............................................32
Section 6.4 Indenture Trustee's Disclaimer.....................................................32
Section 6.5 Notice of Defaults.................................................................32
Section 6.6 Reports by Indenture Trustee to Holders............................................33
Section 6.7 Compensation and Indemnity.........................................................33
Section 6.8 Replacement of Indenture Trustee...................................................33
Section 6.9 Successor Indenture Trustee by Merger..............................................34
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................34
Section 6.11 Eligibility; Disqualification......................................................35
Section 6.12 Preferential Collection of Claims Against Issuer...................................36
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses..............................36
Section 6.14 Interest Rate Swap Provisions......................................................36
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING......................................................................38
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.............38
Section 7.2 Preservation of Information; Communications to Noteholders.........................38
Section 7.3 Reporting by Issuer................................................................39
Section 7.4 Reporting and Notices by Indenture Trustee.........................................39
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..............................................................39
Section 8.1 Collection of Money................................................................39
Section 8.2 Trust Accounts.....................................................................40
Section 8.3 General Provisions Regarding Accounts..............................................40
Section 8.4 Release of Trust Estate............................................................41
Section 8.5 Opinion of Counsel.................................................................41
ARTICLE IX - SUPPLEMENTAL INDENTURES.............................................................................42
Section 9.1 Supplemental Indentures Without Consent of Noteholders.............................42
Section 9.2 Supplemental Indentures with Consent of Noteholders................................43
Section 9.3 Execution of Supplemental Indentures...............................................45
Section 9.4 Effect of Supplemental Indenture...................................................45
Section 9.5 Conformity with Trust Indenture Act................................................45
Section 9.6 Reference in Notes to Supplemental Indentures......................................45
ARTICLE X - REDEMPTION OF NOTES..................................................................................46
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Section 10.1 Redemption.........................................................................46
Section 10.2 Form of Redemption Notice..........................................................46
Section 10.3 Notes Payable on Redemption Date...................................................46
ARTICLE XI - MISCELLANEOUS.......................................................................................47
Section 11.1 Compliance Certificates and Opinions, etc..........................................47
Section 11.2 Form of Documents Delivered to Indenture Trustee...................................48
Section 11.3 Acts of Noteholders................................................................49
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies....................49
Section 11.5 Notices to Noteholders; Waiver.....................................................50
Section 11.6 Alternate Payment and Notice Provisions............................................51
Section 11.7 Conflict with Trust Indenture Act..................................................51
Section 11.8 Effect of Headings and Table of Contents...........................................51
Section 11.9 Successors and Assigns.............................................................51
Section 11.10 Separability.......................................................................51
Section 11.11 Benefits of Indenture..............................................................51
Section 11.12 Legal Holiday......................................................................52
Section 11.13 Governing Law......................................................................52
Section 11.14 Counterparts.......................................................................52
Section 11.15 Recording of Indenture.............................................................52
Section 11.16 Trust Obligation...................................................................52
Section 11.17 No Petition; Subordination; Claims Against Seller..................................52
Section 11.18 Inspection.........................................................................53
Section 11.19 Employee Benefit Plans.............................................................53
SCHEDULES
Schedule of Receivables...............................................................................Schedule A
List of Permitted Investments.........................................................................Schedule I
EXHIBITS
Form of Class A-1 Note ..............................................................................Exhibit A-1
Form of Class A-2 Note...............................................................................Exhibit A-2
Form of Class A-3 Note...............................................................................Exhibit A-3
Form of Class A-4 Note...............................................................................Exhibit A-4
Form of Class B Note Exhibit B
Form of Class C Note Exhibit C
Form of Opinion of Counsel Pursuant to Section 3.6(a)..................................................Exhibit D
ANNEXES
Form of Retail Installment Sale Contract.................................................................Annex A
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APPENDICES
Definitions and Usage.................................................................................Appendix A
INDENTURE, dated as of December 1, 2002 (as amended, supplemented or
otherwise modified and in effect from time to time, this "Indenture"), between
MMCA AUTO OWNER TRUST 2002-5, a Delaware statutory trust (the "Issuer"), and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York banking corporation, as
trustee for the benefit of the Noteholders and not in its individual capacity
(in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of the Issuer's [ ]% Class A-1
Asset Backed Notes (the "Class A-1 Notes"), [ ]% 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"), Floating Rate Class B Asset Backed Notes (the
"Class B Notes") and Floating Rate Class C Asset Backed Notes (the "Class C
Notes" and, together with the Class A Notes and the Class B Notes, the "Notes"),
and the Swap Counterparty:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in, to and under, whether now owned or
existing or hereafter acquired or arising:
(a) the Receivables;
(b) with respect to Receivables that are Actuarial Receivables, monies
due thereunder after the Cutoff Date (including Payaheads) and, with respect to
Receivables that are 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 such
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 related Financed Vehicles or related Obligors;
(e) all rights to receive proceeds with respect to the Receivables from
recourse to Dealers thereon pursuant to the Dealer Agreements;
(f) all of the Issuer's rights to the Receivable Files that relate to
the Receivables;
(g) the Trust Accounts and all amounts, securities, financial assets,
investments and other property deposited in or credited to any of the foregoing
and all proceeds thereof;
(h) all rights under the Sale and Servicing Agreement and the Yield
Supplement Agreement;
(i) all rights under the Purchase Agreement, including the right of the
Seller to cause MMCA to repurchase Receivables from the Seller;
(j) all payments and proceeds with respect to the 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 Receivable that is 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 Agreement; and
(n) all present and future claims, demands, causes of action and choses
in action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grants are 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 Counterparty under
the Interest Rate Swap Agreement.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes and the Swap Counterparty, 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
Counterparty may be adequately and effectively protected.
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but not otherwise defined
herein are defined in Appendix A hereto, which also contains rules as to usage
that shall be applicable herein.
Section 1.2 Incorporated by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the Indenture
Trustee.
"Obligor" on the indenture securities shall mean the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
ARTICLE II - THE NOTES
Section 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes,
together with the Indenture Trustee's Certificates of Authentication, shall be
in substantially the form set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0,
Xxxxxxx X-0, Exhibit B and Exhibit C, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the text of any Note may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibits X-0, X-0, X-0, X-0, B and C hereto are part
of the terms of this Indenture and are incorporated herein by reference.
Section 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by any of its
Responsible Officers. The signature of any such Responsible Officer on the Notes
may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of individuals who
were at any time Responsible Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$[ ], Class A-2 Notes for original issue in an aggregate principal amount of $[
], Class A-3 Notes for original issue in an aggregate principal amount of $[ ],
Class A-4 Notes for original issue in an aggregate principal amount of $[ ],
Class B Notes for original issue in an aggregate principal amount of $[ ] and
Class C Notes for original issue in an aggregate principal amount of $[ ]. The
aggregate principal amounts of Notes outstanding at any time may not exceed
those respective amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication. The Notes
shall be issuable in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to Section
2.13, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a), the
Issuer shall cause Definitive Notes to be prepared without unreasonable delay.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver in exchange therefor, a like principal amount of
Definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as Definitive Notes.
Section 2.4 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes shall be issued, with the intention that, for federal, state and
local income and franchise tax purposes, the Notes shall qualify as indebtedness
of the Issuer secured by the Trust Estate. The Issuer, by entering into this
Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of an interest in the applicable Book-Entry Note), agree to
treat the Notes for federal, state and local income and franchise tax purposes
as indebtedness of the Issuer.
Section 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Indenture Trustee initially shall be the "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, (i) the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location and
any change in the location, of the Note Register, (ii) the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof and (iii) the Indenture Trustee shall have the right to
rely upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2, if
the requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in any authorized
denomination, of a like aggregate principal amount. The Indenture Trustee may
rely upon the Administrator with respect to the determination of whether the
requirements of Section 8-401 of the Relevant UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401 of the Relevant UCC are met, the Issuer shall execute, the
Indenture Trustee shall authenticate, and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making such exchange is
entitled to receive. The Indenture Trustee may rely upon the Administrator with
respect to the determination of whether the requirements of Section 8-401 of the
Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Notes surrendered
upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.5 notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
(i) Each Person to whom a Note is transferred will be required to
represent, in the case of a Definitive Note, or deemed to represent, in the case
of a Book-Entry Note, that (x) such Person is not an employee benefit plan, as
described in Section 3(3) of ERISA, or a plan, as defined in Section 4975(E)(1)
of the Code, that is subject to Title I of ERISA or to Section 4975 of the Code,
a government plan subject to any state or local law similar to Title I of ERISA
or Section 4975 of the Code, or a Person investing on behalf of or with "plan
assets" of such a plan, or (y) the Person's acquisition, holding and disposition
of the Note are and will be eligible for relief under a prohibited transaction
exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee,
or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a protected purchaser, and provided that the requirements of Section
8-405 of the Relevant UCC are met, the Issuer shall execute, and upon its
request the Indenture Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of the same Class; provided, however, that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become or within seven days of
the Indenture Trustee's receipt of evidence to its satisfaction of such
destruction, loss or theft shall be due and payable, or shall have been called
for redemption, instead of issuing a replacement Note of the same Class, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. The Indenture Trustee may
rely upon the Administrator with respect to the determination of whether the
requirements of Section 8-405 of the Relevant UCC are met. If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen Note
pursuant to the proviso to the preceding sentence, a protected purchaser of the
original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a protected purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions from the
Servicer pursuant to Section 4.6(c) of the Sale and Servicing Agreement, the
Indenture Trustee shall withdraw the Total Available Funds on deposit in the
Collection Account for the related Collection Period and make the following
payments and deposits for such Payment Date in the following order of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net Swap
Payments then due under the Interest Rate Swap Agreement (exclusive of
any Swap Termination Payments);
(iii) with the same priority and ratably, in accordance with
the outstanding balance of the Class A Notes and the amount of any Swap
Termination Payments due and payable by the Issuer to the Swap
Counterparty in respect of the Interest Rate Swap,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class A Notes, and
(B) to the Swap Counterparty, any Swap Termination Payments in
respect of the Interest Rate Swap;
provided, that, if any amounts allocable to the Class A Notes are not needed to
pay interest due on such Notes, such amounts shall be applied to pay the
portion, if any, of any Swap Termination Payments remaining unpaid, pro rata
based on the amount of the Swap Termination Payments, and provided, further,
that if there are not sufficient funds available to pay the entire amount of the
Accrued Note Interest for the Class A Notes, the amounts available shall be
applied to the payment of such interest on the Class A Notes on a pro rata
basis;
(iv) to the Note Payment Account, the Accrued Note Interest
for the Class B Notes;
(v) to the Note Payment Account, the Accrued Note Interest for
the Class C Notes;
(vi) to the Note Payment Account, the Principal Distribution
Amount;
(vii) to the Reserve Account, the amount, if any, necessary to
reinstate the balance in the Reserve Account up to the Specified
Reserve Balance;
(viii) prior to the payment in full of the aggregate principal
balance of the Notes, to the Note Payment Account, any remaining Total
Available Funds; and
(ix) following the payment in full of the aggregate principal
balance of the Notes, to the Certificate Distribution Account, any
remaining Total Available Funds.
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default which has resulted in an acceleration of the
Notes, on each Payment Date the Total Available Funds shall be deposited in the
Note Payment Account and applied in accordance with Section 2.8(f).
(b) The principal of each Note shall be payable in installments on each
Payment Date in an aggregate amount (unless the Notes have been accelerated in
accordance with Section 5.2 following the occurrence of an Event of Default) for
all Classes of Notes equal to the Principal Distribution Amount with respect to
such Payment Date. On each Payment Date, unless the Notes have been accelerated
in accordance with Section 5.2 following the occurrence of an Event of Default,
the Issuer shall cause to be paid all amounts on deposit in the Note Payment
Account with respect to the related Collection Period in the following order of
priority:
(i) to the Class A Noteholders, Accrued Note Interest (and, if
amounts on deposit in the Note Payment Account are insufficient for
such purpose, payments shall be made to the Class A Noteholders pro
rata in proportion to the Accrued Note Interest for each Class of Class
A Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class C Noteholders, Accrued Note Interest;
(iv) to the Class A-1 Noteholders, 100% of the Principal
Distribution Amount in reduction of principal until the Class A-1 Notes
are paid in full;
(v) following payment in full of the Class A-1 Notes, the
Class A Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class A-2 Noteholders until the Class A-2
Notes are paid in full, then to the Class A-3 Noteholders until the
Class A-3 Notes are paid in full, then to the Class A-4 Noteholders
until the Class A-4 Notes are paid in full;
(vi) following payment in full of the Class A-1 Notes, the
Class B Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class B Noteholders until the Class B
Notes are paid in full; and
(vii) following payment in full of the Class A-1 Notes, the
Class C Percentage of the remaining Principal Distribution Amount in
reduction of principal to the Class C Noteholders until the Class C
Notes are paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent not
previously paid, will be due on the Class A-1 Stated Maturity Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid, will
be due on the Class A-2 Stated Maturity Date, the principal amount of the Class
A-3 Notes, to the extent not previously paid, will be due on the Class A-3
Stated Maturity Date, the principal amount of the Class A-4 Notes, to the extent
not previously paid, will be due on the Class A-4 Stated Maturity Date, the
principal amount of the Class B Notes, to the extent not previously paid, will
be due on the Class B Stated Maturity Date, and the principal amount of the
Class C Notes, to the extent not previously paid, will be due on the Class C
Stated Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes and the Class C Notes shall accrue interest
at the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4
Rate, the Class B Rate and the Class C Rate, respectively, and such interest
shall be due and payable on each Payment Date. Interest on the Class A-1 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes shall be calculated on the basis of the actual days elapsed and a 360-day
year. Interest on the Class A-2 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 Counterparty, the amount of the Net
Swap Payments then due under the Interest Rate Swap Agreement
(exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in accordance
with the outstanding principal amount of the Class A Notes and the
amount of any Swap Termination Payments due and payable by the Issuer
to the Swap Counterparty in respect of the Interest Rate Swap, (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 Counterparty, any Swap Termination Payments;
(v) fifth, 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;
(vi) sixth, to the Class A-1 Noteholders, the outstanding
principal amount of the Class A-1 Notes as of such Payment Date (prior
to giving effect to any payment of principal on such date) in reduction
of principal until the principal amount of the Class A-1 Notes has been
paid in full;
(vii) seventh, to the Class A-2 Noteholders, the Class A-3
Noteholders and the Class A-4 Noteholders, the outstanding principal
amount of the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, respectively, pro rata in proportion to the respective principal
balances of each of such Classes as of such Payment Date (prior to
giving effect to any payment of principal on such date) in reduction of
principal until the principal amount of each of such Classes has been
paid in full;
(viii) eighth, to the Class B Noteholders, Accrued Note
Interest;
(ix) ninth, to the Class B Noteholders, the outstanding
principal amount of the Class B Notes as of such Payment Date (prior to
giving effect to any payment of principal on such date) in reduction of
principal until the principal amount of the Class B Notes has been paid
in full;
(x) tenth, to the Class C Noteholders, Accrued Note Interest;
(xi) eleventh, to the Class C Noteholders, the outstanding
principal amount of the Class C Notes as of such Payment Date (prior to
giving effect to any payment of principal on such date) in reduction of
principal until the principal amount of the Class C Notes has been paid
in full; and
(xii) twelvth, to the Certificateholders.
Section 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section 2.9, except as expressly
permitted by this Indenture. All cancelled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it, provided, that such Issuer Order
is timely and the Notes have not been previously disposed of by the Indenture
Trustee.
Section 2.10 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of (i) an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent, if any, provided for in this Indenture
relating to the release of the property from the lien of this Indenture have
been complied with, provided that counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action and (ii) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates. If the Commission shall issue an exemptive order under
TIA Section 304(d) modifying the Owner Trustee's obligations under TIA Sections
314(c) and 314(d)(1), the Indenture Trustee shall release property from the lien
of this Indenture in accordance with the conditions and procedures set forth in
such exemptive order.
Section 2.11 Book-Entry Notes. The Notes, upon original issuance, shall
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to the Indenture Trustee as custodian for The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Issuer. The
Book-Entry Notes shall be registered initially on the Note Register in the name
of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner
thereof shall receive a definitive Note representing such Note Owner's interest
in such Note, except as provided in Section 2.13. Unless and until definitive,
fully registered Notes (the "Definitive Notes") have been issued to such Note
Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole Holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this Section 2.11
conflict with any other provisions of this Indenture, the provisions of
this Section shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants pursuant to the Note Depository
Agreement; unless and until Definitive Notes are issued pursuant to
Section 2.13, the initial Clearing Agency shall make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the principal amount of the Notes
or any Class of Notes Outstanding, the Clearing Agency shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes or such Class of
Notes and has delivered such instructions to the Indenture Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.13 Definitive Notes. If (i) the Issuer, the Administrator or
the Servicer advises the Indenture Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Notes and the Indenture Trustee or the Administrator
is unable to locate a qualified successor, (ii) the Administrator, at its
option, advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default or an Event of Servicing Termination, Note Owners of the
Book-Entry Notes representing beneficial interests aggregating not less than 51%
of the principal amount of such Notes advise the Indenture Trustee and the
Clearing Agency in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of such Note Owners, then
the Clearing Agency shall notify all Note Owners and the Indenture Trustee of
the occurrence of such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Any portion of a Book-Entry Note transferred or exchanged
pursuant to this Section 2.13 shall be executed, authenticated and delivered
only in the minimum denominations and integral multiples set forth in Section
2.2(d). Upon the issuance of Definitive Notes, the Indenture Trustee shall
recognize the Holders of the Definitive Notes as Noteholders.
Section 2.14 Authenticating Agents. The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in connection
with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5 and 2.6, as
fully to all intents and purposes as though each such Authenticating Agent had
been expressly authorized by those Sections to authenticate such Notes. For all
purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section 2.14 shall be deemed to be the authentication of
Notes "by the Indenture Trustee."
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Owner Trustee. The
Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating Agent
and shall give written notice of any such appointment to the Owner Trustee.
The Administrator agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services. The provisions of Sections 2.9
and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III - COVENANTS
Section 3.1 Payment Covenant. The Issuer shall duly and punctually pay
the principal of and interest on, if any, the Notes in accordance with the terms
of the Notes and this Indenture. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
Section 3.2 Maintenance of Office or Agency. The Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If, at any time, the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. (a) As provided in
Section 8.2, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account, the
Reserve Account, the Yield Supplement Account and the Note Payment Account shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account, the Reserve
Account, the Yield Supplement Account and the Note Payment Account for payments
of Notes shall be paid over to the Issuer, except as provided in this Section
3.3.
(b) On or before each Payment Date and Redemption Date, the Issuer
shall deposit or cause to be deposited in the Note Payment Account an aggregate
sum sufficient to pay the amounts then becoming due under the Notes and under
the Interest Rate Swap Agreement, such sum to be held in trust for the benefit
of the Persons entitled thereto, and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or failure so
to act.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons, or
otherwise disposed of as herein provided, and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be met
by a Paying Agent at the time of its appointment; and (v) comply with
all requirements of the Code and any state or local tax law with
respect to the withholding from any payments made by it on any Notes of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
(d) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Issuer. The
Indenture Trustee shall also adopt and employ, at the expense and direction of
the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption or
whose right to or interest in monies due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying Agent,
at the last address of record for each such Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute (or, in the case of financing statements, authorize) and deliver
all such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee, the Swap Counterparty and the
Noteholders in such Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to authorize any financing statement, continuation statement or
other instrument required to be authorized pursuant to this Section 3.5.
Section 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit D.
(b) On or before March 31, in each calendar year, beginning in 2003,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the authorization and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
authorization and filing of any financing statements and continuation statements
that shall, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 31 in the following calendar
year.
Section 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer shall not take any action and shall use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including, but
not limited to, filing or causing to be filed all financing statements and
continuation statements required to be filed under the Relevant UCC by the terms
of this Indenture and the Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Indenture Trustee or the Holders of at least a majority of the
principal amount of the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Servicing Termination under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof and shall
specify in such notice the action, if any, the Issuer is taking in respect of
such default. If an Event of Servicing Termination shall arise from the failure
of the Servicer to perform any of its duties or obligations under the Sale and
Servicing Agreement with respect to the Receivables, the Issuer shall take all
reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.1 of
the Sale and Servicing Agreement, the Issuer shall (subject to the rights of the
Indenture Trustee to direct such appointment pursuant to Section 8.2 of the Sale
and Servicing Agreement) appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Indenture Trustee. In the event
that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee, without further action, shall automatically be appointed the
Successor Servicer. The Indenture Trustee may resign as the Servicer by giving
written notice of such resignation to the Issuer and in such event shall be
released from such duties and obligations, such release not to be effective
until the date a new servicer enters into a servicing agreement with the Issuer
as provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer (other than the Indenture Trustee)
shall (i) be an established financial institution having a net worth of not less
than $50,000,000 and whose regular business includes the servicing of automotive
installment sale contracts and (ii) enter into a servicing agreement with the
Issuer having substantially the same provisions as the provisions of the Sale
and Servicing Agreement applicable to the Servicer. If, within 30 days after the
delivery of the notice referred to above, the Issuer shall not have obtained
such a new servicer, the Indenture Trustee may appoint, or may petition a court
of competent jurisdiction to appoint, a Successor Servicer. In connection with
any such appointment, the Indenture Trustee may make such arrangements for the
compensation of such successor as it and such successor shall agree, subject to
the limitations set forth below and in the Sale and Servicing Agreement, and in
accordance with Section 8.2 of the Sale and Servicing Agreement, the Issuer
shall enter into an agreement with such successor for the servicing of the
Receivables (such agreement to be in form and substance satisfactory to the
Indenture Trustee). If the Indenture Trustee shall succeed to the Servicer's
duties as servicer of the Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI shall be inapplicable to the Indenture
Trustee in its duties as the successor to the Servicer and the servicing of the
Receivables. If the Indenture Trustee shall become successor to the Servicer
under the Sale and Servicing Agreement, the Indenture Trustee shall be entitled
to appoint as Servicer any one of its Affiliates; provided that the Indenture
Trustee, in its capacity as the Servicer, shall be fully liable for the actions
and omissions of such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Servicer is appointed by the Issuer,
the Issuer shall notify the Indenture Trustee of such appointment, specifying in
such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer hereby agrees that it shall not, without
the prior written consent of the Indenture Trustee or the Holders of at least a
majority in principal amount of the Notes Outstanding, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in the Sale and Servicing Agreement or
the Basic Documents).
Section 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Trust
Agreement, the Purchase Agreement or the Sale and Servicing Agreement,
sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, including those included in the Trust Estate,
unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed
upon the Issuer;
(iii) consolidate or merge with or into any other Person;
(iv) dissolve or liquidate in whole or in part;
(v) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the
assets of the Issuer or any part thereof or any interest therein or the
proceeds thereof or (C) permit the lien of this Indenture not to
constitute a valid first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the Trust Estate;
or
(vi) engage in any activity which is inconsistent with the
treatment of the Issuer as a "Qualifying Special Purpose Entity" as
such term is used in SFAS 140 and any successor rule thereto.
Section 3.9 Annual Statement as to Compliance. The Issuer shall deliver
to the Indenture Trustee, on or before March 31 of each year (commencing with
the year 2003), an Officer's Certificate stating, as to the Responsible Officer
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year
(or such shorter period, with respect to the first such Officer's
Certificate) and of its performance under this Indenture has been made
under such Responsible Officer's supervision; and
(ii) to the best of such Responsible Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year (or such shorter
period, with respect to the first such Officer's Certificate), or, if
there has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Responsible
Officer and the nature and status thereof.
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of
Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any material portion of the properties and assets included
in the Trust Estate to any Person.
Section 3.11 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables in
the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.13 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture and the other Basic Documents, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 3.15 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.16 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Owner Trustee, the Swap Counterparty 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 Agreement with respect to any of the provisions thereof.
Section 3.19 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection therewith.
Section 3.20 Calculation Agent. (a) The Issuer agrees that for so long
as any of the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C 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 [ ] as Calculation Agent for purposes of
determining LIBOR for each Interest Accrual Period and [ ] 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-3 Notes, Class
A-4 Notes, Class B Notes and Class C 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, (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 the Swap Counterparty
as beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when either:
(A) all Notes of all Classes theretofore
authenticated and delivered (other than (i) Notes that have
been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.6 and (ii) Notes for whose
payment money has theretofore been irrevocably deposited in
trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust,
as provided in Section 3.3) have been delivered to the
Indenture Trustee for cancellation; or
(B) each of the following:
(1) all Notes not theretofore delivered to
the Indenture Trustee for cancellation have
become due and payable and the Issuer has
irrevocably deposited or caused to be
irrevocably deposited with the Indenture
Trustee cash or direct obligations of or
obligations guaranteed by the United States
of America (which will mature prior to the
date such amounts are payable), in trust for
such purpose, in an amount sufficient to pay
and discharge the entire indebtedness on
such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due
to the applicable Stated Maturity Date or
Redemption Date (if Notes shall have been
called for redemption pursuant to Section
10.1), as the case may be;
(2) the Issuer has paid or caused to be paid
all other sums payable by the Issuer
hereunder and under the other Basic
Documents;
(3) the Issuer has delivered to the
Indenture Trustee an Officer's Certificate,
an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an
Independent Certificate from a firm of
certified public accountants, each meeting
the applicable requirements of Section
11.1(a) and, subject to Section 11.2, each
stating that all conditions precedent herein
provided for relating to the satisfaction
and discharge of this Indenture have been
complied with;
(4) the Issuer has delivered to the
Indenture Trustee an Opinion of Counsel to
the effect that the satisfaction and
discharge of the Notes pursuant to this
Section 4.1 will not cause any Noteholder to
be treated as having sold or exchanged any
of its Notes for purposes of Section 1001 of
the Code; and
(5) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate stating that the
satisfaction and discharge of this Indenture (i) is
not inconsistent with the derecognition by MMCA of
the Receivables under GAAP and (ii) will not cause
the Issuer to become part of MMCA's consolidated
group under GAAP.
(b) Notwithstanding anything to the contrary herein or in any other
Basic Document, the Issuer shall not cause or permit the Notes to be prepaid
except as set forth in Section 10.1.
Section 4.2 Satisfaction and Discharge of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection (b)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Notes Outstanding, and the provisions of this Indenture,
as it relates to such Notes, shall no longer be in effect (and the Indenture
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from the trust
funds described in subsection (b)(i) hereof, payment of the principal
of and interest on the Notes Outstanding at maturity of such principal
or interest;
(ii) the obligations of the Issuer with respect to the Notes
under Sections 2.5, 2.6, 3.2 and 3.3;
(iii) the obligations of the Issuer to the Indenture Trustee
under Section 6.7; and
(iv) the rights, powers, trusts and immunities of the
Indenture Trustee hereunder and the duties of the Indenture Trustee
hereunder.
(b) The satisfaction and discharge of the Notes pursuant to subsection
(a) of this Section 4.2 is subject to the satisfaction of all of the following
conditions:
(i) the Issuer has deposited or caused to be deposited
irrevocably (except as provided in Section 4.4) with the Indenture
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Notes,
which, through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than one day
prior to the due date of any payment referred to below, money in an
amount sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to pay and
discharge the entire indebtedness on the Notes Outstanding, for
principal thereof and interest thereon to the date of such deposit (in
the case of Notes that have become due and payable) or to the maturity
of such principal and interest, as the case may be, and to pay any
amounts then due and payable to the Swap Counterparty;
(ii) such deposit will not result in a breach or violation of,
or constitute an event of default under, any other agreement or
instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or on the 91st
day after such date;
(iv) the Issuer has delivered to the Indenture Trustee an
Opinion of Counsel to the effect that the satisfaction and discharge of
the Notes pursuant to this Section 4.2 will not cause any Noteholder to
be treated as having sold or exchanged any of its Notes for purposes of
Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the satisfaction and discharge of the
Notes contemplated by this Section 4.2 have been complied with.
(c) Notwithstanding anything to the contrary herein or in any
other Basic Document, the Issuer shall not cause or permit the Notes to
be prepaid except as set forth in Section 10.1.
Section 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest, and for
payment to the Swap Counterparty of all sums, if any, due or to become due to
the Swap Counterparty under and in accordance with this Indenture and the
Interest Rate Swap Agreement, but such monies need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or required by law.
Section 4.4 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such monies.
ARTICLE V - REMEDIES
Section 5.1 Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for a
period of five days or more; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, including with respect to each Class of Notes, the Stated
Maturity Date for such Class; or
(iii) default in the observance or performance of any material
covenant or agreement of the Issuer made in this Indenture (other than
a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section 5.1 specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 60 days or in the case of a materially incorrect
representation and warranty 30 days, after there shall have been given,
by registered or certified mail, to the Issuer by the Indenture Trustee
or to the Issuer and the Indenture Trustee by the Holders of not less
than 25% of the principal amount of the Notes Outstanding, a written
notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a
notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(v) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such law,
or the consent by the Issuer to the appointment or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust
Estate, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Default which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), its status and what action the Issuer is
taking or proposes to take with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and Annulment. (a) If
an Event of Default should occur and be continuing, then and in every such case
the Indenture Trustee or the Holders of Notes representing not less than a
majority of the principal amount of the Notes Outstanding, voting as a group,
may declare all the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the unpaid principal amount of such Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable. If an Event of Default
specified in Section 5.1(iv) or (v) occurs, all unpaid principal, together with
all accrued and unpaid interest thereon, of all the Notes, and all other amounts
payable hereunder, shall automatically become due and payable without any
declaration or other act on the part of the Indenture Trustee or any Holder of
the Notes. In the event of such declaration or automatic acceleration, the
Indenture Trustee shall give prompt written notice to the Swap Counterparty.
(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 Agreement
if the Event of Default giving rise to such acceleration had
not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel and other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) there is a default in
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five days, or (ii) there is a default
in the payment of the principal of or any installment of the principal of any
Note when the same becomes due and payable, the Issuer shall, upon demand of the
Indenture Trustee, pay to the Indenture Trustee, for the benefit of the Holders
of the Notes, the whole amount then due and payable on the Notes for principal
and interest, with interest upon the overdue principal at the applicable Note
Interest Rate and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest at the applicable
Note Interest Rate and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel and other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon the Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon the Notes, wherever situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders and
the Swap Counterparty 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 Counterparty 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 Counterparty 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
Counterparty 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 Counterparty 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 the Swap Counterparty any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the Interest Rate
Swap Agreement 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 Counterparty.
(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 Counterparty; 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 Agreement 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 Agreement, 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 Agreement,
the Indenture Trustee may sell or liquidate the Trust Estate at one or
more public or private sales called and conducted in any manner
permitted by law if the Indenture Trustee obtains the consent of
Holders of 66 2/3% of the principal amount of the Notes Outstanding,
voting as a group.
(c) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the order of priority
set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section 5.4. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the record date, the payment date and the amount to
be paid. Section 5.5 Optional Preservation of the Receivables. Subject to
Section 5.4(b), if the Notes have been declared to be due and payable under
Section 5.2 following an Event of Default, and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee may,
but need not, elect to maintain possession of the Trust Estate and apply
proceeds as if there had been no declaration of acceleration; provided, however,
that Total Available Funds shall be applied in accordance with such declaration
of acceleration in the manner specified in Section 4.6(c) of the Sale and
Servicing Agreement. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes and any amounts owing to the Swap Counterparty, and the
Indenture Trustee shall take such desire into account when determining whether
or not to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
Section 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount of the
Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a majority
of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the principal amount of the Notes
Outstanding, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on, if any, such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Holders of a majority of the
principal amount of the Notes Outstanding shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders of
Notes representing not less than 100% of the principal amount of the Notes
Outstanding;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the principal amount of the Notes Outstanding to
sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.1, the Indenture Trustee need not take any action that it reasonably
believes might involve it in costs, expenses and liabilities for which it will
not be adequately indemnified or might materially adversely affect the rights of
any Noteholders not consenting to such action.
Section 5.12 Waiver of Past Default. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding, voting as a group, may waive any past Default or Event
of Default and its consequences except a Default or Event of Default (a) in the
payment of principal of or interest on any of the Notes or (b) in respect of a
covenant or provision hereof that cannot be amended, supplemented or modified
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
principal amount of the Notes Outstanding or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(c).
Section 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement or by
the Seller of each of its obligations under or in connection with the Purchase
Agreement, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Sale and
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone, confirmed in writing promptly thereafter) of the Holders of 66
2/3% of the principal amount of the Notes Outstanding, voting as a group, shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller or the Servicer under or in connection with the Sale and
Servicing Agreement, or against the Seller under or in connection with the
Purchase Agreement, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer, as the case may
be, of each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension, or waiver under the
Sale and Servicing Agreement or the Purchase Agreement, as the case may be, and
any right of the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to do so,
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by MMCA of each of its obligations to the Seller under or in
connection with the Purchase Agreement in accordance with the terms thereof, and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Purchase Agreement to
the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by MMCA of each of its obligations under the Purchase
Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as a
group, shall exercise all rights, remedies, powers, privileges and claims of the
Seller against MMCA under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by MMCA of each of its obligations to the Seller thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Purchase Agreement, and any rights of the Seller to take such action
shall be suspended.
(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 Counterparty in accordance with the Interest Rate Swap
Agreement 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 Agreement 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 Counterparty of its obligations under the
Interest Rate Swap Agreement.
(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 Counterparty including the right or
power to take any action to compel or secure performance or observance by the
Swap Counterparty of their obligations to the Issuer under the Interest Rate
Swap Agreement and to give any consent, request, notice, direction, approval,
extension, or waiver under the Interest Rate Swap Agreement 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 90
days after it occurs. Except in the case of a Default in payment of principal of
or interest on any Note (including payments pursuant to the mandatory redemption
provisions of such Note), the Indenture Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
Section 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by the
Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement containing
the information which is required to be expressed in the Payment Date statements
as a dollar amount per $1,000 of original denomination of the Notes or Class of
Notes, as applicable, aggregated for such calendar year, for the purposes of
such Noteholder's preparation of Federal income tax returns.
Section 6.7 Compensation and Indemnity. (a) The Issuer shall, or shall
cause the Administrator to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall, or shall cause the Administrator to, reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall, or shall cause the Administrator to,
indemnify the Indenture Trustee against any and all loss, liability or expense
(including attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Administrator promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and
the Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to, defend
any such claim, and the Indenture Trustee may have separate counsel and the
Issuer shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Administrator need reimburse any expense or
indemnity against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section 6.7 shall survive the resignation or removal of the Indenture
Trustee and the discharge of this Indenture. When the Indenture Trustee incurs
expenses after the occurrence of a Default specified in Section 5.1(iv) or (v)
with respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
Section 6.8 Replacement of Indenture Trustee. (a) No resignation or
removal of the Indenture Trustee, and no appointment of a successor Indenture
Trustee, shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. Subject to the
preceding sentence, the Indenture Trustee may resign at any time by so notifying
the Issuer. The Holders of a majority in principal amount of the Notes
Outstanding, voting as a group, may remove the Indenture Trustee without cause
by so notifying the Indenture Trustee and the Issuer and the Issuer may appoint
a successor Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee and to the Issuer, and
shall concurrently deliver a copy of such acceptance to the 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 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 Counterparty, such title to the Trust Estate, or any
part hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8. (b) Every separate trustee
and co-trustee shall, to the extent permitted by law, be appointed and act
subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee shall not be authorized to act separately without
the Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time remove or accept
the resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee or its parent shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and shall have a long-term debt rating of investment grade by each of the Rating
Agencies or shall otherwise be acceptable to each of the Rating Agencies. The
Indenture Trustee shall comply with TIA Section 310(b).
(b) Within 90 days after ascertaining the occurrence of an Event of
Default which shall not have been cured or waived, unless authorized by the
Commission, the Indenture Trustee shall resign with respect to the Class A
Notes, the Class B Notes and/or the Class C Notes in accordance with Section 6.8
of this Indenture, and the Issuer shall appoint a successor Indenture Trustee
for one or both of such Classes, as applicable, so that there will be separate
Indenture Trustees for the Class A Notes, the Class B Notes and the Class C
Notes. In the event the Indenture Trustee fails to comply with the terms of the
preceding sentence, the Indenture Trustee shall comply with clauses (ii) and
(iii) of TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section 6.11 of a
successor Indenture Trustee with respect to any Class of Notes, the Issuer, the
retiring Indenture Trustee and the successor Indenture Trustee with respect to
such Class of Notes shall execute and deliver an indenture supplemental hereto
wherein each successor Indenture Trustee shall accept such appointment and which
(i) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, the successor Indenture Trustee all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of the Class to which the appointment of such successor Indenture Trustee
relates, (ii) if the retiring Indenture Trustee is not retiring with respect to
all Classes of Notes, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each Class as to which
the retiring Indenture Trustee is not retiring shall continue to be vested in
the Indenture Trustee and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Indenture Trustee; and upon the removal of the retiring Indenture Trustee
shall become effective to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses. The
Indenture Trustee shall use its best efforts to maintain the effectiveness of
all licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in
connection with this Indenture and the transactions contemplated hereby until
the lien and security interest of this Indenture shall no longer be in effect in
accordance with the terms hereof.
Section 6.14 Interest Rate Swap Provisions.(a) The Issuer has entered
into an Interest Rate Swap Agreement, in a form satisfactory to the Rating
Agencies, to hedge the floating rate interest expense on the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes and the Class C Notes. The Issuer may,
from time to time, enter into one or more replacement Interest Rate Swap
Agreement with one or more replacement Swap Counterparties in the event that the
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 Agreement). The notional amount of the Interest Rate
Swap hedging the interest expense on the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes will be initially equal to the principal
amount of the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C Notes on the Closing Date and will be reduced by the amount of any
principal payments on the Class A-3 Notes, the Class A-4 Notes, the Class B
Notes and the Class C Notes.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swap will rank senior to
interest payments on the Class A Notes and Class A Swap Termination Payments
will rank pari passu with interest payments on the Class A Notes, 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 the 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 the Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of the
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 the Interest Rate Swap Agreement.
(e) The Administrator shall calculate and provide written notification
to the Swap Counterparty and to the Indenture Trustee of the notional amount of
the 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 Swap Counterparty 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 the 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 the Interest Rate Swap Agreement, an amendment or
supplement to the Interest Rate Swap Agreement will be effective only after
satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of the 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 the 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 Counterparty of its obligations under the Interest Rate Swap Agreement, as
provided in Section 5.16(e) and 5.16(f).
(g) The Interest Rate Swap Agreement shall provide that a termination
event will occur thereunder if:
(i) the long-term rating of [ ] 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
(1) 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, (2) 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 (3) 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-3 Notes,
the Class A-4 Notes, the Class B Notes and the Class C Notes that were
in effect immediately prior to such suspension, withdrawal or
downgrade;
(ii) the short-term rating of [ ] is downgraded below a rating
of "A-1" by S&P and the Swap Counterparty fails to (1) use reasonable
efforts to assign (at its own cost or benefit) its rights and
obligations under the Interest Rate Swap Agreement to a replacement
counterparty acceptable to the Issuer and to S&P and (2) if such an
assignment has not occurred within 30 days of such downgrade, fail to
deliver or post collateral reasonably acceptable to the Issuer and
sufficient to satisfy the Rating Agency Condition with respect to S&P
(as designated in an approved credit support annex) to secure its
obligations under the Interest Rate Swap Agreement; provided, that
notwithstanding the posting of the collateral and the addition of the
credit support annex, the Swap Counterparty shall continue to use
reasonable efforts to assign its rights and obligations under the
Interest Rate Swap Agreement to a replacement counterparty; or
(iii) the long-term rating or the short-term rating of [ ] is
suspended, withdrawn or downgraded below a rating of "A" or "F1,"
respectively, by Fitch Ratings and, within 30 days of such suspension,
withdrawal or downgrade the Swap Counterparty fails to (1) deliver or
post collateral reasonably acceptable to the Issuer and acceptable to
Fitch Ratings in amounts sufficient or in accordance with the standards
of Fitch Ratings (as such standards may be modified while any
transaction is still outstanding) to secure its obligations under the
Interest Rate Swap Agreement, (2) assign its rights and obligations
under the Interest Rate Swap Agreement to a replacement counterparty
reasonably acceptable to the Issuer and to Fitch Ratings or (3)
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
Ratings) in each case so that Fitch Ratings confirms the ratings of the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
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 days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Notes as of such Record Date and (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as (i) the Indenture Trustee is the Note Registrar or (ii) the
Notes are issued as Book-Entry Notes, no such list shall be required to be
furnished.
Section 7.2 Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) that the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time
by the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.3(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a) If required
by TIA Section 313(a), within 60 days after each March 31, beginning with March
31, 2003, the Indenture Trustee shall mail to each Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing to Noteholders
shall be filed by the Indenture Trustee with the Commission and each stock
exchange, if any, on which the Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture and the Sale and
Servicing Agreement. The Indenture Trustee shall apply all such money received
by it as provided in this Indenture and the Sale and Servicing Agreement. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, (i) for the benefit of the Noteholders and the
Certificateholders, each of the Trust Accounts other than the Note Payment
Account as provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing
Agreement and (ii) for the exclusive benefit of the Noteholders, the Note
Payment Account as provided in Sections 4.1(d) and 4.1(e) of the Sale and
Servicing Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in the
Collection Account all amounts required to be deposited therein with respect to
the related Collection Period as provided in Sections 4.2 and 4.4 of the Sale
and Servicing Agreement. On or before each Payment Date, all amounts required to
be deposited in the Note Payment Account with respect to the related Collection
Period pursuant to Sections 4.6 and 4.7 of the Sale and Servicing Agreement
shall be withdrawn by the Indenture Trustee from the Collection Account and/or
the Reserve Account and deposited to the Note Payment Account for payment to
Noteholders in accordance with Section 2.8 on such Payment Date. The Indenture
Trustee shall direct the Swap Counterparty 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
Swap Counterparty to deposit, and shall otherwise cause to be deposited, all
Swap Termination Payments paid by the Swap Counterparty 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, and provided further
that the Indenture Trustee shall promptly deposit any retained amounts that are
not so applied to the Collection Account.
Section 8.3 General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Collection Account, the Payahead Account, the
Reserve Account and the Yield Supplement Account shall be invested by the
Indenture Trustee at the direction of the Servicer in Permitted Investments as
provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing Agreement. All
income or other gain (net of losses and investment expenses) from investments of
monies deposited in the Collection Account, the Payahead Account, the Reserve
Account and the Yield Supplement Account shall be withdrawn by the Indenture
Trustee from such accounts and distributed (but only under the circumstances set
forth in the Sale and Servicing Agreement in the case of the Reserve Account and
the Yield Supplement Account) as provided in Sections 4.1, 4.7, 4.11, 4.12 and
5.1 of the Sale and Servicing Agreement. The Servicer shall not direct the
Indenture Trustee to make any investment of any funds or to sell any investment
held in any of the Trust Accounts unless the security interest Granted and
perfected in such account will continue to be perfected in such investment or
the proceeds of such sale, in either case without any further action by any
Person, and, in connection with any direction to the Indenture Trustee to make
any such investment or sale, if requested by the Indenture Trustee, the Issuer
shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the
Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Permitted Investment included therein, except for
losses attributable to the Indenture Trustee's failure to make payments on such
Permitted Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Servicer shall have failed to give investment directions
to the Indenture Trustee by 11:00 a.m., New York Time (or such other time as may
be agreed by the Issuer and Indenture Trustee), on the Business Day preceding
each Payment Date for any funds on deposit in the Collection Account, the
Payahead Account, the Reserve Account or the Yield Supplement Account, (ii) to
the knowledge of a Responsible Officer of the Indenture Trustee, a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.2 or (iii) the Notes shall have been declared due and payable following an
Event of Default and amounts collected or receivable from the Trust Estate are
being applied in accordance with Section 5.4 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in such Trust Accounts in one or more
Permitted Investments as set forth in Schedule I hereto.
Section 8.4 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7 have
been paid in full and all amounts (including Swap Termination Payments) owing
under the Interest Rate Swap Agreement have been paid in full, release any
remaining portion of the Trust Estate that secured the Notes and the Interest
Rate Swap Agreement 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
the 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 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 the Swap Counterparty
under the Interest Rate Swap Agreement, or modify or impair the ability
of the Issuer to fully perform any of its obligations under the
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 10 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 10 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 the Swap Counterparty under the Interest
Rate Swap Agreement or modify the obligations of, or impair the ability of the
Issuer to fully perform any of its obligations under the Interest Rate Swap
Agreement or (y) the 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 10 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 10 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 the Swap Counterparty a copy of such supplemental indenture and to
the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
the execution and delivery of such supplemental indenture have been satisfied.
The Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X - REDEMPTION OF NOTES
Section 10.1 Redemption. The Notes are subject to redemption in whole,
but not in part, at the direction of the Servicer pursuant to Section 9.1(a) of
the Sale and Servicing Agreement, on any Payment Date on which the Servicer
exercises its option to purchase the assets of the Issuer pursuant to said
Section 9.1(a), and the amount paid by the Servicer shall be treated as
collections of Receivables and applied to pay the unpaid principal amount of the
Notes plus accrued and unpaid interest thereon and the Certificate Balance. The
Servicer or the Issuer shall furnish the Rating Agencies and the Noteholders
notice of such redemption. If the Notes are to be redeemed pursuant to this
Section 10.1, the Servicer or the Issuer shall furnish notice of such election
to the Indenture Trustee not later than 20 days prior to the Redemption Date and
the Issuer shall deposit by 10:00 a.m. (New York City time) on the Redemption
Date with the Indenture Trustee in the Note Payment Account the Redemption Price
of the Notes to be redeemed, whereupon all such Notes shall be due and payable
on the Redemption Date.
Section 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted promptly following
receipt of notice from the Issuer or Servicer pursuant to Section 10.1, but not
later than 10 days prior to the applicable Redemption Date, to each Holder of
Notes as of the close of business on the Record Date preceding the applicable
Redemption Date, at such Holder's address or facsimile number appearing in the
Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency of
the Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give any
required notice of redemption, or any defect therein, to any Holder of any Note
shall not impair or affect the validity of the redemption of any other Note.
Section 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section 11.1,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such
certificate or opinion has read or has caused to be read such
covenant or condition and the definitions herein relating
thereto;
(B) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied
with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i)
above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the property or securities to be so deposited and of all
other such property or securities made the basis of any such withdrawal
or release since the commencement of the then-current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is 10% or more of the principal
amount of the Notes Outstanding, but such a certificate need not be
furnished with respect to any property or securities so deposited, if
the fair value thereof to the Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than 1% of the
principal amount of the Notes Outstanding.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than property
as contemplated by clause (v) below or securities released from the
lien of this Indenture since the commencement of the then-current
calendar year, as set forth in the certificates required by clause
(iii) above and this clause (iv), equals 10% or more of the principal
amount of the Notes Outstanding, but such certificate need not be
furnished in the case of any release of property or securities if the
fair value thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than 1% of the principal amount of the then
Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions of
this Section 11.1, the Issuer may, without compliance with the
requirements of the other provisions of this Section 11.1, (A) collect,
liquidate, sell or otherwise dispose of Receivables and Financed
Vehicles as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Trust Accounts as and
to the extent permitted or required by the Basic Documents.
Section 11.2 Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any certificate or opinion of a Responsible Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, the Seller, the Administrator or the Issuer,
unless such Responsible Officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, comments, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied herein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to:
MMCA Auto Owner Trust 2002-5,
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
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
in the case of S&P, at the following address:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X'Xxxx
Fax: (000) 000-0000
in the case of Fitch Ratings, at the following address:
Fitch Ratings
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: [ ]
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
Counterparty 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 the Swap
Counterparty shall have no 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 without reference to its
conflict of laws provisions (other than Section 5-1401 of the General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities), and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 11.17 No Petition; Subordination; Claims Against Seller. The
Indenture Trustee, by entering into this Indenture, and each Noteholder or Note
Owner, by accepting a Note or beneficial interest in a Note, as the case may be,
hereby covenant and agree that (a) they will not at any time institute against
the Seller or the Issuer, or join in any institution against the Seller or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture or any of the Basic Documents, (b) any claim that they
may have at any time against the Subtrust Assets of any Subtrust unrelated to
the Notes, and any claim they have at any time against the Seller that they may
seek to enforce against the Subtrust Assets of any Subtrust unrelated to the
Notes, shall be subordinate to the payment in full, including post-petition
interest, in the event that the Seller becomes a debtor or debtor in possession
in a case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other similar proceedings, of the
claims of the holders of any Securities related to such unrelated Subtrust and
the holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust and (c) they hereby irrevocably make the
election afforded by Title 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 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Name:
Title:
By: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: ______________________________
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
Payahead Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
Exhibit A-1
[Form of Class A-1 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
[ ]% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-1 Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class A-1
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the previous Payment Date (or, in the case of the initial
Payment Date, or if no interest has been paid, from and including the Closing
Date) to but excluding such Payment Date. Interest will be computed on the basis
of the actual number of days elapsed and a 360-day year. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse side
hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-1 Asset Backed Notes, which, together with the
Class A-2 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class A-4
Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C Asset-Backed
Notes (collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class A-1 Notes are equal in right of
payment to the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes,
senior in right of payment to the Class B Notes and the Class C Notes and
subordinate to the rights of the Swap Counterparty to receive (other than Swap
Termination Payments) pursuant to the Interest Rate Swap Agreement, 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 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing [January 15, 2003].
As described above, the entire unpaid principal amount of this Class
A-1 Note shall be due and payable on the earlier of the Class A-1 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes Outstanding
of all Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-1 Notes shall be made pro rata to the Holders
entitled thereto.
Payments of interest on this Class A-1 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-1 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-1 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-1 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-1 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-1 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-1 Note and of any Class A-1 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-1 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-1 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-1 Note may be registered on the Note
Register upon surrender of this Class A-1 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-1 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-1 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY 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 Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-1
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-1 Note and of any Class
A-1 Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-1 Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-1
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-1 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ___________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
Exhibit A-2
[Form of Class A-2 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
[ ]% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-2 Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class A-2
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th of the previous month (or, in the case of the
initial Payment Date, or if no interest has been paid, from the Closing Date) to
and including the 14th of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-2 Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class A-4
Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C Asset-Backed
Notes (collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class A-2 Notes are equal in right of
payment to the Class A-1 Notes, the Class A-3 Notes and the Class A-4 Notes,
senior in right of payment to the Class B Notes and the Class C Notes and
subordinate to the rights of the Swap Counterparty to receive payments (other
than Swap Termination Payments) pursuant to the Interest Rate Swap Agreement, 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 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing [January 15, 2003].
As described above, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the Class A-2 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes Outstanding
of all Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-2 Notes shall be made pro rata to the Holders
entitled thereto.
Payments of interest on this Class A-2 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-2 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-2 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-2 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-2 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-2 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-2 Note and of any Class A-2 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-2 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-2 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-2 Note may be registered on the Note
Register upon surrender of this Class A-2 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-2 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY 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 Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-2
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-2 Note and of any Class
A-2 Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-2 Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-2
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-2 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
Exhibit A-3
[Form of Class A-3 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-3 Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class A-3
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th of the previous month (or, in the case of the
initial Payment Date, or if no interest has been paid, from the Closing Date) to
and including the 14th of the month of such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-3 Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-4
Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C Asset-Backed
Notes (collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class A-3 Notes are equal in right of
payment to the Class A-1 Notes, the Class A-2 Notes and the Class A-4 Notes,
senior in right of payment to the Class B Notes and the Class C Notes and
subordinate to the rights of the Swap Counterparty to receive payments (other
than Swap Termination Payments) pursuant to the Interest Rate Swap Agreement, 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 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing [January 15, 2003].
As described above, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the Class A-3 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes Outstanding
of all Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-3 Notes shall be made pro rata to the Holders
entitled thereto.
Payments of interest on this Class A-3 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-3 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-3 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-3 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-3 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-3 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-3 Note and of any Class A-3 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-3 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-3 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-3 Note may be registered on the Note
Register upon surrender of this Class A-3 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-3 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-3 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY 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 Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-3
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-3 Note and of any Class
A-3 Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-3 Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-3
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-3 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
Exhibit A-4
[Form of Class A-4 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-4 Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class A-4
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th of the previous month (or, in the case of the
initial Payment Date, or if no interest has been paid, from the Closing Date) to
and including the 14th of the month of such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-4 Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class B Asset-Backed Notes and the Class C Asset-Backed
Notes (collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class A-4 Notes are equal in right of
payment to the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
senior in right of payment to the Class B Notes and the Class C Notes and the
Class C Notes and subordinate to the rights of the Swap Counterparty to receive
payments (other than Swap Termination Payments) pursuant to the Interest Rate
Swap Agreement, 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 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing on [January 15, 2003].
As described above, the entire unpaid principal amount of this Class
A-4 Note shall be due and payable on the earlier of the Class A-4 Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of the Notes representing not less than a majority of all the Notes Outstanding
of all Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-4 Notes shall be made pro rata to the Holders
entitled thereto.
Payments of interest on this Class A-4 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-4 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-4 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-4 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-4 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-4 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-4 Note and of any Class A-4 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-4 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-4 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-4 Note may be registered on the Note
Register upon surrender of this Class A-4 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-4 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-4 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY 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 Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-4
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-4 Note and of any Class
A-4 Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-4 Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-4
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-4 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
Exhibit B
[Form of Class B Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class B Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class B
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th of the previous month (or, in the case of the
initial Payment Date, or if no interest has been paid, from the Closing Date) to
and including the 14th of the month of such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class C
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class B Notes are subordinated in
right of payment to the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class C Notes
and subordinate to the rights of the Swap Counterparty to receive payments
(other than Swap Termination Payments) pursuant to the Interest Rate Swap
Agreement, 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 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing [January 15, 2003].
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 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All principal
payments on the Class 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 all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class B
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class B Note and of any Class B
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class B Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class B Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class B Note
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note, by his
acceptance hereof, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Class B Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
Exhibit C
[Form of Class C Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-1 CUSIP NO. [ ]
MMCA AUTO OWNER TRUST 2002-5
FLOATING RATE CLASS C ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-5, a statutory trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of [ ] DOLLARS payable on each Payment Date in the
aggregate amount, if any, payable from the Note Payment Account in respect of
principal on the Class C Notes pursuant to Section 2.8 of the Indenture, dated
as of December 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the [ ] Payment Date (the "Class C
Stated Maturity Date") and the Redemption Date, if any, pursuant to Section 10.1
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th of the previous month (or, in the case of the
initial Payment Date, or if no interest has been paid, from the Closing Date) to
and including the 14th of the month of such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day year.
Such principal of and interest on this Note shall be paid in the manner
specified on the reverse side hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
MMCA AUTO OWNER TRUST 2002-5,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
Date: December [ ], 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
Date: December [ ], 2002
This Class C Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class C Asset Backed Notes, which, together with the
Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes and the Class B
Asset-Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. Except as
otherwise set forth in the Indenture, the Class C Notes are subordinated in
right of payment to the Class A-1 Notes , the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and equal in right of payment to the Class B Notes
and subordinate to the rights of the Swap Counterparty to receive payments
(other than Swap Termination Payments) pursuant to the Interest Rate Swap
Agreement, to the extent provided in the Indenture.
Principal of the Class C Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the 15th day of
each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing [January 15, 2003].
As described above, the entire unpaid principal amount of this Class C
Note shall be due and payable on the earlier of the Class C Stated Maturity Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All principal
payments on the Class C Notes shall be made pro rata to the Holders entitled
thereto.
Payments of interest on this Class C Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class C Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class C Note (or one
or more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Class C Notes registered on the
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall be
mailed to the Person entitled thereto at the address of such Person as it
appears on the Note Register as of the applicable Record Date without requiring
that this Class C Note be submitted for notation of payment. Any reduction in
the principal amount of this Class C Note (or any one or more Predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Holders of this Class C Note and of any Class C Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class C Note on a Payment Date, then the Indenture Trustee, in the name of
and on behalf of the Issuer, will notify the Person who was the Registered
Holder hereof as of the Record Date preceding such Payment Date by notice mailed
or transmitted by facsimile prior to such Payment Date, and the amount then due
and payable shall be payable only upon presentation and surrender of this Class
C Note at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class C Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class C Note may be registered on the Note
Register upon surrender of this Class C Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class C Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class C Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY 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 C Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
C Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class C Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class C Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparty if such amendment adversely affects the rights
or obligations of the Swap Counterparty under the related Interest Rate Swap
Agreement or modifies the obligations of, or impairs the ability of the Issuer
to fully perform any of its obligations under the Interest Rate Swap Agreement.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Class A Notes Outstanding, on behalf
of the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class C
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class C Note and of any Class C
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class C Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class C Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class C Note
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note, by his
acceptance hereof, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Class C Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
Exhibit D
[Form of Opinion of Counsel Pursuant to Section 3.6(a)]
[See Tab ___]
Annex A
[Form of Retail Installment Sale Contract]
Appendix A
DEFINITIONS AND USAGE
Usage
The following rules of construction and usage shall be
applicable to any agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined
meanings when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed
hereby and in any certificate or other document made or delivered pursuant
thereto, accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles as in effect on the date of
such agreement or instrument. To the extent that the definitions of accounting
terms in this Appendix or in any such agreement, instrument, certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Appendix or in
any such instrument, certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in an agreement or instrument refer to such agreement
or instrument as a whole and not to any particular provision or subdivision
thereof; references in an agreement or instrument to "Article," "Section" or
another subdivision or to an attachment are, unless the context otherwise
requires, to an article, section or subdivision of or an attachment to such
agreement or instrument; the word "or" is not exclusive; and the term
"including" means "including without limitation."
(d) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred
to below or in any agreement or instrument that is governed by this Appendix
means such agreement or instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns.
Definitions
"Accrued Note Interest" shall mean, with respect to any
Payment Date and each Class of Notes, the sum of the Monthly Accrued Note
Interest and the Interest Carryover Shortfall for such Class for such Payment
Date.
"Act" shall have the meaning specified in Section 11.3(a) of
the Indenture.
"Actuarial Advance" shall mean, with respect to an Actuarial
Receivable, the amount, as of the last day of a Collection Period, which is
required to be advanced with respect to such Actuarial Receivable by the
Servicer pursuant to Section 4.4(a) of the Sale and Servicing Agreement.
"Actuarial Method" shall mean the method of allocating a fixed
level payment on a Receivable between principal and interest, pursuant to which
the portion of such payment that is allocated to interest is the product of
one-twelfth (1/12) of the APR of the Receivable multiplied by the scheduled
principal balance of the Receivable, and the remainder of such payment is
allocable to principal.
"Actuarial Receivable" shall mean any Receivable under which
the portion of a payment with respect thereto allocable to interest and the
portion of a payment with respect thereto allocable to principal is determined
in accordance with the Actuarial Method.
"Adjusted Pool Balance" shall mean the aggregate Adjusted
Principal Balance (including the aggregate Adjusted Principal Balance of Last
Scheduled Payments) of the Receivables as of the Cutoff Date.
"Adjusted Principal Balance" shall mean, with respect to any
Receivable as of any date of determination, the Principal Balance of such
Receivable minus the Yield Supplement Overcollateralization Amount for such
Receivable, as of such date.
"Administration Agreement" shall mean the Administration
Agreement, dated as of December 1, 2002, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of
America, Inc., a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Advance" shall mean an Actuarial Advance or a Last Scheduled
Payment Advance, as the context may require.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person shall mean
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Amount Financed" shall mean, with respect to a Receivable,
the aggregate amount advanced under such Receivable toward the purchase price of
the Financed Vehicle and any related costs.
"Applicable Tax State" shall mean, as of any date of
determination, each state as to which any of the following is then applicable:
(a) a state in which the Owner Trustee maintains the Corporate Trust Office, (b)
a state in which the Owner Trustee maintains its principal executive offices and
(c) a state in which the Servicer regularly conducts servicing and collection
operations other than purely ministerial activities and which relate to a
material portion of the Receivables.
"APR" of a Receivable shall mean the annual percentage rate of
interest stated in the Contract related to such Receivable.
"Authenticating Agent" shall have the meaning specified in
Section 2.14 of the Indenture.
"Available Funds" shall mean, for any Payment Date, an amount
equal to (a) the sum of the following amounts with respect to the related
Collection Period: (i) all collections on Receivables, including Payaheads
withdrawn from the Payahead Account (but excluding Payaheads deposited into the
Payahead Account), (ii) the proceeds of sale by the Trust of any Financed
Vehicle sold to the Trust upon termination, including a prepayment, of a Final
Payment Receivable, (iii) all Liquidation Proceeds on Defaulted Receivables and
any Recoveries, (iv) all extension and deferral fees paid with respect to the
Receivables, (v) the Purchase Amount of each Receivable that became a Purchased
Receivable during the related Collection Period (net of applicable expenses),
(vi) any Net Swap Receipts on the Interest Rate Swap Agreement, (vii) any Swap
Termination Payments paid by the Swap Counterparty to the extent that such
amounts are not used to enter into a replacement interest rate swap, (viii) all
Actuarial Advances and Last Scheduled Payment Advances deposited to the
Collection Account on such Payment Date by the Servicer, (vii) amounts paid
pursuant to the Yield Supplement Agreement (including amounts, if any, withdrawn
from the Yield Supplement Account or the Reserve Account pursuant to Section
5.1(a) of the Sale and Servicing Agreement) with respect to the related
Collection Period, (viii) partial prepayments attributable to any refunded item
included in the Amount Financed, such as extended warranty protection plan costs
or physical damage, credit life or disability insurance premiums, or any partial
prepayment which causes a reduction in the Obligor's periodic payment to be
below the Scheduled Payment as of the Cutoff Date, minus (b) the aggregate
amount of funds described in clause (a) above that are used in the related
Collection Period to reimburse the Servicer for the aggregate amount of Advances
previously made by the Servicer that are due and payable to the Servicer on such
Payment Date; provided, however, that in calculating the Available Funds, all
payments and proceeds (including Liquidation Proceeds) of any Purchased
Receivables the Purchase Amount of which has been included in the Available
Funds in a prior Collection Period (which shall be paid to MART II or the
Servicer, as applicable) will be excluded.
"Balloon Payment" means, as to a Balloon Payment Receivable,
the final payment which is due at the end of the term of the receivable.
"Balloon Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables which
provides for equal monthly installments and one substantially larger final
balloon payment. At maturity of the Balloon Payment Receivable, the Obligor may
either (i) pay the remaining Principal Balance of the Receivable, all accrued
and unpaid interest, plus any fees, charges, and other amounts then owing or
(ii) refinance the amount then due, subject to certain conditions, and satisfy
all other conditions stated under the terms of the Contract. For avoidance of
doubt, the Obligor on a Balloon Payment Receivable may not satisfy its
obligation to pay the Balloon Payment at maturity of the Balloon Payment
Receivable by returning the Financed Vehicle to MMCA.
"Basic Documents" shall mean the Indenture, the Certificate of
Trust, the Trust Agreement, the Assignments, the Sale and Servicing Agreement,
the Purchase Agreement, the Administration Agreement, the Note Depository
Agreement, the Interest Rate Swap Agreement, the Yield Supplement Agreement, the
Control Agreement and other documents and certificates delivered in connection
therewith as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11 of the Indenture.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New York,
New York, Wilmington, Delaware or Los Angeles, California are authorized or
obligated by law, regulation or executive order to be closed.
"Calculcation Agent" shall initially mean [ ] as the agent of
the Issuer for purposes of determining LIBOR for each Interest Accrual Period,
and any successor that may be appointed by the Issuer from time to time pursuant
to Section 3.20(a) of the Indenture.
"Capped Receivable" shall mean a Simple Interest Receivable
that is subject to a cap on the aggregate amount of interest to be paid by the
related Obligor during the term of such Receivable.
"Certificate" shall mean a physical certificate evidencing the
beneficial interest of a Certificateholder in the property of the Trust,
substantially in the form of Exhibit A to the Trust Agreement. Such certificate
shall entitle the Holder thereof to distributions pursuant to the Trust
Agreement from collections and other proceeds in respect of the Owner Trust
Estate; provided, however, that the Owner Trust Estate has been pledged to the
Indenture Trustee to secure payment of the Notes and that the rights of
Certificateholders to receive distributions on the Certificates are subordinated
to the rights of the Noteholders as described in the Sale and Servicing
Agreement and the Indenture.
"Certificate Balance" shall mean, as the context may require,
(i) with respect to all of the Certificates, an amount equal to, initially, the
Initial Certificate Balance and, thereafter, an amount equal to the Initial
Certificate Balance, as reduced from time to time by all amounts allocable to
principal previously distributed to Certificateholders or (ii) with respect to
any Certificate, an amount equal to, initially, the initial denomination of such
Certificate and, thereafter, an amount equal to such initial denomination, as
reduced from time to time by all amounts allocable to principal previously
distributed in respect of such Certificate; provided, that in determining
whether the Holders of the requisite portion or percentage of the Certificate
Balance of all of the Certificates have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder or under any
other Basic Document, Certificates owned by the Trust, any other obligor upon
the Certificates, MART II, the Servicer or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed to be excluded from the Certificate
Balance (unless such Persons own 100% of the Certificate Balance of the
Certificates); provided, further, that where such Persons own 100% of the
Certificate Balance of the Certificates, any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Basic Document
is deemed to have been given by the Holders of the Certificates if also given by
the Holders of the Notes, except that, in determining whether the Indenture
Trustee and Owner Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent, or waiver, only Certificates
that a Responsible Officer of the Indenture Trustee, if applicable, and a
Responsible Officer of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement, if applicable, knows to be so owned shall
be so disregarded. Certificates so owned that have been pledged in good faith
may be regarded as included in the Certificate Balance if the pledgee
establishes to the satisfaction of the Indenture Trustee or the Owner Trustee,
as applicable, the pledgee's right so to act with respect to such Certificates
and that the pledgee is not the Trust, any other obligor upon the Certificates,
MART II, the Servicer or any Affiliate of any of the foregoing Persons.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 4.1(f) of the Sale and Servicing Agreement.
"Certificate of Trust" shall mean (i) with respect to the
Trust, the Certificate of Trust in the form of Exhibit B to the Trust Agreement
filed for the Trust pursuant to Section 3810(a) of the Statutory Trust Statute
and (ii) with respect to the Issuer, the certificate of trust of the Issuer
substantially in the form of Exhibit C to the Trust Agreement.
"Certificate Pool Factor" shall mean, as of the close of
business on the last day of a Collection Period, a seven-digit decimal figure
equal to the Certificate Balance (after giving effect to any reductions therein
to be made on the immediately following Payment Date) divided by the Initial
Certificate Balance. The Certificate Pool Factor will be 1.0000000 as of the
Closing Date; thereafter, the Certificate Pool Factor will decline to reflect
reductions in the Certificate Balance.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4 of
the Trust Agreement.
"Certificateholder" shall mean a Person in whose name a
Certificate is registered in the Certificate Register.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean, collectively, the Class A-1 Notes,
the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Percentage" shall mean approximately [ ]%, calculated
as the percentage equivalent of a fraction the numerator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, and the denominator of which is the sum of
the principal amount on the date of issuance of the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes;
provided, however, that in the event that after the Class A-1 Notes have been
paid in full, the amount on deposit in the Reserve Account on any Payment Date
falls to less than 1.00% of the Adjusted Pool Balance on the Cutoff Date and
that amount is less than the Specified Reserve Balance for that Payment Date,
the Class A Percentage shall be 100% until the Class A Notes have been paid in
full.
"Class A-1 Noteholder" shall mean the Person in whose name a
Class A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $[ ] aggregate initial
principal amount of [ ]% Class A-1 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-1 thereto.
"Class A-1 Rate" shall mean [ ]% per annum.
"Class A-1 Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class A-2 Noteholder" shall mean the Person in whose name a
Class A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $[ ] aggregate initial
principal amount of [ ]% Class A-2 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-2 thereto.
"Class A-2 Rate" shall mean [ ]% per annum.
"Class A-2 Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class A-3 Noteholder" shall mean the Person in whose name a
Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $[ ] aggregate initial
principal amount of Floating Rate Class A-3 Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit A-3
thereto.
"Class A-3 Rate" shall mean one-month LIBOR plus [ ]% per
annum.
"Class A-3 Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class A-4 Noteholder" shall mean the Person in whose name a
Class A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $[ ] aggregate initial
principal amount of Floating Rate Class A-4 Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit A-4
thereto.
"Class A-4 Rate" shall mean one-month LIBOR plus [ ]% per
annum.
"Class A-4 Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered on the Note Register.
"Class B Notes" shall mean the $[ ] aggregate initial
principal amount of Floating Rate Class B Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit B
thereto.
"Class B Percentage" shall mean approximately [ ]%, calculated
as the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class B Notes, and the
denominator of which is the sum of the principal amount on the date of issuance
of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B
Notes and the Class C Notes; provided, however, that in the event that after the
Class A-1 Notes have been paid in full, the amount on deposit in the Reserve
Account on any Payment Date falls to less than 1.00% of the Adjusted Pool
Balance on the Cutoff Date and that amount is less than the Specified Reserve
Balance for that Payment Date, the Class B Percentage shall be (i) 0% until the
Class A Notes have been paid in full and (ii) 100% after the Class A Notes have
been paid in full.
"Class B Rate" shall mean one-month LIBOR plus [ ]% per annum.
"Class B Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class C Noteholder" shall mean the Person in whose name a
Class C Note is registered on the Note Register.
"Class C Notes" shall mean the $[ ] aggregate initial
principal amount of Floating Rate Class C Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit C
thereto.
"Class C Percentage" shall mean approximately [ ]%, calculated
as the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class C Notes, and the
denominator of which is the sum of the principal amount on the date of issuance
of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B
Notes and the Class C Notes; provided, however, that in the event that after the
Class A-1 Notes have been paid in full, the amount on deposit in the Reserve
Account on any Payment Date falls to less than 1.00% of the Adjusted Pool
Balance on the Cutoff Date and that amount is less than the Specified Reserve
Balance for that Payment Date, the Class C Percentage shall be (i) 0% until the
Class B Notes have been paid in full and (ii) 100% after the Class B Notes have
been paid in full.
"Class C Rate" shall mean one-month LIBOR plus [ ]% per annum.
"Class C Stated Maturity Date" shall mean the [ ] Payment
Date.
"Class" shall mean a class of Notes, which may be the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes or the Class C Notes.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing" shall have the meaning specified in Section 2.3 of
the Purchase Agreement.
"Closing Date" shall mean December [ ], 2002.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations, including proposed or
temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting
Clause of the Indenture.
"Collection Account" shall mean the account or accounts
established and maintained as such pursuant to Section 4.1(a) of the Sale and
Servicing Agreement.
"Collection Period" shall mean each calendar month during the
term of the Sale and Servicing Agreement or, in the case of the initial
Collection Period, the period from the Cutoff Date to December [ ], 2002. As
used herein, the Collection Period "related to" a Payment Date or "preceding" a
Payment Date refers to the Collection Period that ends on the last day of the
calendar month preceding the calendar month in which such Payment Date occurs.
"Commission" shall mean the Securities and Exchange
Commission.
"Computer Tape" shall mean each computer tape or compact disk
generated by MART II which provides information relating to the Receivables and
which was used by MART II in selecting the Receivables conveyed to the Trust
hereunder on the Closing Date.
"Contract" shall mean a motor vehicle retail installment sale
contract, including a retail installment contract relating to the sale of an
automobile or a sports-utility vehicle for commercial use.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of December 1, 2002, by and among MART II, the Issuer, the
Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust Company in
its capacity as a securities intermediary, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean (i) with respect to the
Owner Trustee, the principal office of the Owner Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the date of the execution of this Agreement is located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000, Attention:
Corporate Trust Administration or at such other address as the Owner Trustee may
designate from time to time by notice to the Certificateholders, the Indenture
Trustee and MART II, or the principal corporate trust office of any successor
Owner Trustee (of which address such successor Owner Trustee will notify the
Certificateholders, the Indenture Trustee and MART II) and (ii) with respect to
the Indenture Trustee, the principal office of the Indenture Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Agreement is located at 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, the Owner Trustee and MART II, or the
principal corporate trust office of any successor Indenture Trustee (of which
address such successor Indenture Trustee will notify the Noteholders, the Owner
Trustee and MART II).
"Cutoff Date" shall mean [ ], 2002.
"Dealer" shall mean, with respect to any Receivable, the
seller of the related Financed Vehicle who originated and assigned the
Receivable relating to such Financed Vehicle to MMCA under a Dealer Agreement.
"Dealer Agreement" shall mean an agreement between MMCA and a
Dealer relating to the assignment of Receivables to MMCA and all documents and
instruments relating thereto, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Default" shall mean any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable (other than a
Purchased Receivable) as to which (i) the related Financed Vehicle has been
repossessed and liquidated, (ii) more than 10% of a Scheduled Payment
(including, in the case of a Final Payment Receivable, the amount owed by an
Obligor with respect to a Last Scheduled Payment but excluding in each case any
Excess Wear and Tear or Excess Mileage) is 120 or more days past due and the
Servicer has not repossessed the related Financed Vehicle or (iii) the Servicer
has determined, in accordance with its customary servicing standards, policies
and procedures, that eventual payment in full (including, in the case of a Final
Payment Receivable, the amount owed by an Obligor with respect to a Last
Scheduled Payment but excluding in each case any Excess Wear and Tear or Excess
Mileage) on the Receivable is unlikely and the Servicer has either (x)
repossessed and liquidated the related Financed Vehicle or (y) repossessed and
held the related Financed Vehicle in its repossession inventory for more than 90
days, which 90 days shall not be more than 180 days after the date on which a
Scheduled Payment was due but not paid.
"Deferred Balloon Payment Receivable" shall mean any Deferred
Payment Receivable for which no Scheduled Payment is due for either 90 or 180
days from the date of the Contract and which provides for a Balloon Payment.
"Deferred Payment Receivable" shall mean any Receivable which
is not a Deferred Balloon Payment Receivable for which the related Contract
specifies that no Scheduled Payment under such Contract shall be due until a
date more than 50 days but less than 450 days from the date of inception of the
such Contract. A Receivable shall cease to be a Deferred Payment Receivable
commencing on the last day of the Collection Period preceding the Collection
Period in which the first Scheduled Payment is due under the related Contract.
"Definitive Notes" shall have the meaning specified in Section
2.11 of the Indenture.
"Depositor" shall mean MART II, in its capacity as Depositor
under the Trust Agreement.
"Determination Date" shall mean, with respect to any
Collection Period, the seventh Business Day of the next succeeding calendar
month (but not later than the 10th calendar day of such month).
"Eligible Receivable" shall mean each Receivable as to which
the representations and warranties of (i) MMCA, in Section 3.2 of the Purchase
Agreement, and (ii) MART II, in Section 2.2 of the Sale and Servicing Agreement,
shall be true and correct in all material respects as of the Closing Date.
"Eligible Servicer" shall mean a Person which, at the time of
its appointment as Servicer or as a subservicer, (i) has a net worth of not less
than $50,000,000, (ii) is servicing a portfolio of motor vehicle retail
installment sale contracts and/or motor vehicle loans, (iii) is legally
qualified, and has the capacity, to service the Receivables, (iv) has
demonstrated the ability professionally and competently to service a portfolio
of motor vehicle retail installment sale contracts and/or motor vehicle loans
similar to the Receivables in accordance with standards of skill and care that
are consistent with prudent industry standards, and (v) is qualified and
entitled to use pursuant to a license or other written agreement, and agrees to
maintain the confidentiality of, the software which the Servicer or any
subservicer uses in connection with performing its duties and responsibilities
under the Sale and Servicing Agreement or the related subservicing agreement or
obtains rights to use, or develops at its own expense, software which is
adequate to perform its duties and responsibilities under the Sale and Servicing
Agreement or the related subservicing agreement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Event of Default" shall have the meaning specified in Section
5.1 of the Indenture.
"Event of Servicing Termination" shall mean an event specified
in Section 8.1 of the Sale and Servicing Agreement.
"Excess Mileage" shall mean, with respect to any Financed
Vehicle securing a Final Payment Receivable, the amounts payable by the related
Obligor relating to the excess of the number of miles by which such Financed
Vehicle has been driven over the number of miles such Financed Vehicle may be
driven during the term of the related Final Payment Receivable (as specified in
the Contract related to such Final Payment Receivable) without incurring an
excess mileage charge pursuant to the related Contract, net of the amount, if
any, payable to a third party collection agency as payment of its fees and
expenses in connection with collecting such amounts from the related Obligor.
"Excess Wear and Tear" shall mean, with respect to any
Financed Vehicle securing a Final Payment Receivable, all amounts payable by the
related Obligor relating to damages to such Financed Vehicle that are not the
result of normal wear and tear, as more specifically described in the Contract
related to such Final Payment Receivable, net of the amount, if any, payable to
a third party collection agency as payment of its fees and expenses in
connection with collecting such amounts from the related Obligor.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Executive Officer" shall mean, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Expenses" shall have the meaning assigned to such term in
Section 8.2 of the Trust Agreement.
"Final Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables which
provides for a series of scheduled payments which, if each is made on its
scheduled due date, will amortize the initial Level Pay Balance by the due date
immediately preceding the maturity date of the Receivable. At maturity of the
Final Payment Receivable, the Obligor thereunder will owe (assuming that all
payments have been made on their scheduled due dates) an amount consisting of
interest for the period from the preceding due date through the maturity date
and the remaining Principal Balance of the Receivable. At maturity of the Final
Payment Receivable, the Obligor may either (i) pay the remaining Principal
Balance of the Receivable, all accrued and unpaid interest, plus any fees,
charges, and other amounts then owing, (ii) refinance the amount then due,
subject to certain conditions or (iii) sell the Financed Vehicle to MMCA on
behalf of the Trust for an amount equal to the Sale Price, and pay any excess of
the total amount owed by the Obligor (calculated as in clause (i)) over the Sale
Price, and satisfy all other conditions stated under the terms of the Contract.
"Final Scheduled Maturity Date" shall mean, with respect to
any Receivable, [ ].
"Financed Vehicle" shall mean a new or used automobile or
sport-utility vehicle, together with all accessions thereto, securing an
Obligor's indebtedness under the respective Receivable.
"First-Tier Assignment" shall mean the document of assignment
in substantially the form attached as Exhibit A to the Purchase Agreement.
"Fitch Ratings" shall mean Fitch, Inc., doing business as
Fitch Ratings.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer, create, and to
xxxxx x xxxx upon and a security interest in and right of set-off against, and
to deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral and all other monies payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Holder" shall mean a Noteholder or a Certificateholder, as
the case may be.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of December 1,
2002, between the Trust and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"Independent" shall mean, when used with respect to any
specified Person, that such Person (a) is in fact independent of the Issuer, any
other obligor on the Notes, MART II and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, MART II or
any Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, MART II or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion
to be delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in the Indenture and that the signer is Independent
within the meaning thereof.
"Initial Certificate Balance" shall mean, as the context may
require, (i) with respect to all of the Certificates, $[ ], or (ii) with respect
to any Certificate, an amount equal to the initial denomination of such
Certificate.
"Initial Payahead Account Deposit" shall mean $[ ].
"Initial Weighted Average Rate" shall mean [ ]%.
"Initial Yield Supplement Amount" shall mean $[ ].
"Insolvency Event" shall mean, with respect to any Person, (i)
the making of a general assignment for the benefit of creditors, (ii) the filing
of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in any
bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, (v) the filing by such Person of an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against such Person in any proceeding specified in (vii) below, (vi) seeking,
consenting to or acquiescing in the appointment of a trustee, receiver or
liquidator of such Person or of all or any substantial part of the assets of
such Person or (vii) the failure to obtain dismissal within 60 days of the
commencement of any proceeding against such Person seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, or the entry of any order
appointing a trustee, liquidator or receiver of such Person or of such Person's
assets or any substantial portion thereof.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, and with respect to the Class A-2 Notes, the period from and
including the 15th day of the calendar month immediately preceding such Payment
Date to but excluding the 15th day of the calendar month in which such Payment
Date occurs and, with respect to the Class A-1 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes and the Class C Notes, the period from and
including the preceding Payment Date through the day preceding the Payment Date;
provided, that if the 15th day of a month is not a Business Day, the payment
will be made on the next following Business Day; provided, further, that for the
first Payment Date, the "Interest Accrual Period" shall mean the period from and
including the Closing Date.
"Interest Carryover Shortfall" shall mean, with respect to any
Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually deposited
in the Note Payment Account on such preceding Payment Date with respect to such
Class, plus interest on such excess to the extent permitted by law, at the
applicable Note Interest Rate for the related Interest Accrual Period.
"Interest Rate Swap Agreement" shall mean the interest rate
swap as to the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the
Class C Notes with [ ], as Swap Counterparty, dated as of the Closing Date, to
hedge the floating interest Class A-3 Rate, Class A-4 Rate, Class B Rate and
Class C Rate, including all schedules and confirmations thereto, as the same may
be amended, supplemented, renewed, extended or replaced from time to time.
"Interest Reset Date" means, with respect to the floating rate
Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes, the first day
of the Interest Accrual Period.
"Issuer" shall mean the Trust, unless a successor replaces it
and, thereafter, means the successor and for purposes of any provision contained
herein and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order
or request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"Last Scheduled Payment" shall mean, with respect to each
Final Payment Receivable, the amount referred to in the Contract related to such
Final Payment Receivable as the "last scheduled payment."
"Last Scheduled Payment Advance" shall mean, with respect to a
Final Payment Receivable, the amount, as of the close of business on the last
day of a Collection Period, which is required to be advanced by the Servicer
with respect to such Final Payment Receivable pursuant to Section 4.4(b) of the
Sale and Servicing Agreement.
"Last Scheduled Payment Pool Balance" shall mean, for any
Payment Date, the aggregate principal balance of Last Scheduled Payments of
Final Payment Receivables as of the close of business on the last day of the
preceding Collection Period.
"Last Scheduled Payment Principal Collections" shall mean (a)
collections of principal on a Final Payment Receivable that are attributable to
Last Scheduled Payments, which includes any collection attributable to principal
on a Final Payment Receivable in excess of the initial Level Pay Balance of that
Receivable, whether or not such payment is made on the due date of the related
Last Scheduled Payment, and including the proceeds of sale (net of expenses) of
any Financed Vehicle purchased by MMCA on behalf of the Trust pursuant to the
terms of the Receivable and subsequently sold on behalf of the Trust, minus (b)
with respect to any Final Payment Receivable with respect to which the Obligor
exercises its right to have MMCA, on behalf of the Trust, purchase the related
Financed Vehicle, the excess of the purchase price from the Obligor of such
Financed Vehicle over the remaining amount owed by the Obligor.
"Letter of Credit Bank" shall mean any Person having the
Required Rating that has provided a Yield Supplement Letter of Credit in
accordance with Section 5.1 of the Sale and Servicing Agreement.
"Level Pay Balance" shall mean, with respect to each Final
Payment Receivable, (i) initially the Amount Financed under such Final Payment
Receivable minus the principal portion of the Last Scheduled Payment thereon and
(ii) thereafter, shall be the amount set forth in clause (i) minus all
collections on or with respect to principal on such Receivable other than
amounts on deposit in the Payahead Account with respect to future due dates;
provided that such Level Pay Balance for any Final Payment Receivable shall not
be less than zero.
"Level Pay Pool Balance" shall mean, for any Payment Date, the
sum of (i) the aggregate Level Pay Balance of Final Payment Receivables and (ii)
the aggregate Principal Balance of the Receivables other than Final Payment
Receivables, as of the close of business on the last day of the preceding
Collection Period.
"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:
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.
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 [ ]%.
"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-3 Note, a Class A-4
Note, a Class B Note or a Class C Note.
"Lien" shall mean a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens, mechanics' or
materialmen's liens, judicial liens and any liens that may attach to a Financed
Vehicle by operation of law.
"Liquidation Proceeds" shall mean, with respect to a Defaulted
Receivable, the monies collected from whatever source during the Collection
Period in which such Receivable became a Defaulted Receivable, net of the sum of
(i) any expenses incurred by the Servicer in connection with collection of such
Receivable and the disposition of the Financed Vehicle and (ii) any amounts
required by law to be remitted to the Obligor.
"London and New York Banking Day" shall mean any business day
on which dealings in deposits in United States dollars are transacted in the
London and New York interbank markets.
"Long Deferment Period Receivable" shall mean any Deferred
Payment Receivable for which the period from the inception of the Receivable to
the date on which the first Scheduled Payment is due is between 360 and 450
days.
"MART II" shall mean MMCA Auto Receivables Trust II, a
Delaware statutory trust, and its successors and assigns.
"MART II Trust Agreement" shall mean the Amended and Restated
Trust Agreement, dated as of July 29, 2002, between MMCA, as beneficiary, and
Chase Manhattan Bank USA, National Association, a national banking association,
as trustee, relating to MART II, as from time to time amended, supplemented or
otherwise modified and in effect.
"Mitsubishi Motors" shall mean Mitsubishi Motors Corporation,
a Japanese corporation, and its successors and assigns, and any Affiliates
thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"MMSA" shall mean Mitsubishi Motors Sales of America, Inc., a
Delaware corporation, and its successors and assigns.
"Modified Receivable" shall have the meaning assigned thereto
in Section 3.2(a) of the Sale and Servicing Agreement.
"Monthly Accrued Note Interest" shall mean, with respect to
any Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class on
the aggregate principal balance of the Notes of such Class as of the immediately
preceding Payment Date, after giving effect to all payments of principal to
Noteholders of such Class on or prior to such preceding Payment Date (or, in the
case of the first Payment Date, the initial principal amount of such Class of
Notes); and (ii) with respect to the Notes collectively, the sum of Monthly
Accrued Note Interest for each Class.
"Monthly Remittance Condition" shall have the meaning assigned
thereto in Section 4.1(g) of the Sale and Servicing Agreement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Swap Payment" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by the
Issuer to the Swap Counterparty, excluding any Swap Termination Payments.
"Net Swap Receipt" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by the
Swap Counterparty to the Issuer, excluding any Swap Termination Payments.
"Note Depository Agreement" shall mean the agreement, dated as
of the Closing Date, among the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company, as the initial Clearing Agency, relating to
the Notes.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class
A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate and the Class
C Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note,
the Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Payment Account" shall mean the account established and
maintained as such pursuant to Section 4.1(b) of the Sale and Servicing
Agreement.
"Note Percentage" shall mean, as of any Payment Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate
principal amount of the Notes as of such Payment Date (after giving effect to
any payments of principal on such Payment Date), and the denominator of which is
an amount equal to the sum of the aggregate principal amount of the Notes and
the Certificate Balance, in each case as of such Payment Date (after giving
effect to any payment of principal on such Payment Date).
"Note Pool Factor" shall mean, with respect to any Class of
Notes, as of the close of business on the last day of a Collection Period, a
seven-digit decimal figure equal to the outstanding principal balance of such
Class of Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. Each Note Pool Factor will be
1.0000000 as of the Closing Date; thereafter, the Note Pool Factor will decline
to reflect reductions in the outstanding principal amount of such Class of
Notes.
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a) of the Indenture.
"Noteholder" shall mean a Person in whose name a Note is
registered on the Note Register.
"Noteholders" shall mean the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders, the Class
B Noteholders and the Class C Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or
co-purchasers of the related Financed Vehicle purchased in part or in whole by
the execution and delivery of such Receivable, or any other Person who owes or
may be liable for payments under such Receivable.
"Officer's Certificate" shall mean (i) with respect to the
Trust, a certificate signed by any Responsible Officer of the Trust and (ii)
with respect to MART II or the Servicer, a certificate signed by the chairman,
the president, any executive vice president, vice president or the treasurer of
MART II or the Servicer, as applicable.
"Opinion of Counsel" shall mean (i) in the case of the Sale
and Servicing Agreement, a written opinion of counsel (who, in the case of
counsel to MART II or the Servicer, may be an employee of, or outside counsel
to, MART II or the Servicer), which counsel shall be acceptable to the Indenture
Trustee, the Owner Trustee or the Rating Agencies, as applicable, and (ii) in
the case of the Indenture, one or more written opinions of counsel who may,
except as otherwise expressly provided in the Indenture, be employees of or
counsel to the Issuer, MMCA or the Servicer and who shall be satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, shall comply with the applicable
requirements of Section 11.1 of the Indenture, and shall be in form and
substance satisfactory to the Indenture Trustee.
"Optional Purchase Percentage" shall mean 10%.
"Outstanding" shall mean, as of the date of determination, all
Notes theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided, however,
that if such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are held
by a protected purchaser;
provided, that in determining whether the Holders of the requisite principal
amount of the Notes Outstanding have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, MART II, the
Servicer or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, MART II, the
Servicer or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount
of all Notes Outstanding at the date of determination.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in, to and under the property and rights assigned to the Trust
pursuant to Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, its successors in interest and any successor
trustee under the Trust Agreement.
"Payahead" shall mean, with respect to an Actuarial
Receivable, the amount, as of the close of business on the last day of a
Collection Period, so designated in accordance with Section 4.3(a) of the Sale
and Servicing Agreement with respect to such Receivable.
"Payahead Account" shall mean the account established and
maintained as such pursuant to Section 4.1(d) of the Sale and Servicing
Agreement.
"Payahead Balance", with respect to an Actuarial Receivable,
shall mean the sum, as of the close of business on the last day of a Collection
Period, of all Payaheads made by or on behalf of the Obligor with respect to
such Actuarial Receivable (including any amount paid by or on behalf of the
Obligor prior to the Cutoff Date that is due on or after the Cutoff Date and was
not used to reduce the principal balance of such Actuarial Receivable), as
reduced by applications of previous Payaheads with respect to such Actuarial
Receivable, pursuant to Sections 4.3(a) and 4.4 of the Sale and Servicing
Agreement.
"Paying Agent" shall mean (i) with respect to the Trust
Agreement, any paying agent or co-paying agent appointed pursuant to Section 3.9
thereto, and shall initially be Wilmington Trust Company, and (ii) with respect
to the Indenture, the Indenture Trustee or any other Person that meets the
eligibility standards for the Indenture Trustee specified in Section 6.11
thereto and is authorized by the Issuer to make payments to and distributions
from the Collection Account and the Note Payment Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Payment Date" shall mean the 15th day of each month, or if
any such day is not a Business Day, the immediately following Business Day,
commencing [January 15, 2003].
"Permitted Investments" shall mean, on any date of
determination, book-entry securities, negotiable instruments or securities
represented by instruments in bearer or registered form with maturities not
exceeding the Business Day preceding the next Payment Date which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided, however, that at the
time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company) thereof shall have a credit rating
from each of the Rating Agencies in the highest investment category granted
thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category granted thereby
(including funds for which the Indenture Trustee or the Owner Trustee or any of
their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company (acting as
principal) described in clause (b); and
(g) any other investment with respect to which the Trust or
the Servicer has received written notification from the Rating Agencies that the
acquisition of such investment as a Permitted Investment will not result in a
withdrawal or downgrading of the ratings on any Class of Notes or the
Certificates.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust,
unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Plan" shall mean an employee benefit plan subject to Title I
of ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Pool Balance" shall mean, as of any date of determination,
the aggregate Principal Balance of the Receivables (including the aggregate
Principal Balance of Last Scheduled Payments) as of the close of business on the
last day of the preceding Collection Period or, with respect to any date of
determination during the first Collection Period, as of the Cutoff Date, after
giving effect to, with respect to such Collection Period, (i) all payments
received from Obligors (other than Payaheads), (ii) all Advances to be made by
the Servicer and (iii) all Purchase Amounts to be remitted by MART II or the
Servicer, in each case for such Collection Period, and reduced by the aggregate
Principal Balance of Receivables that became Defaulted Receivables during such
Collection Period.
"Predecessor Note" shall mean, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any Note
authenticated and delivered under Section 2.6 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean the Payment Date specified by the
Servicer pursuant to Section 9.2(a) of the Trust Agreement.
"Prepayment Price" shall mean an amount equal to the
Certificate Balance as of the applicable Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable
as of any date of determination, the Amount Financed minus the sum of the
following amounts: (i) in the case of an Actuarial Receivable, that portion of
all Scheduled Payments due on or prior to such date allocable to principal
computed in accordance with the Actuarial Method (to the extent collected or
advanced), (ii) in the case of a Simple Interest Receivable, that portion of all
Scheduled Payments actually received on or prior to such date allocable to
principal using the Simple Interest Method (to the extent collected or
advanced), (iii) any refunded portion of extended warranty protection plan
costs, or of physical damage, credit life, or disability insurance premiums
included in the Amount Financed and (iv) any prepayment in full or partial
prepayment applied to reduce the unpaid principal balance of such Receivable.
The Principal Balance of a Defaulted Receivable shall be zero as of the
beginning of the Collection Period following the Collection Period in which it
became a Defaulted Receivable.
"Principal Distribution Amount" shall mean, with respect to
any Payment Date, (i) the total Adjusted Principal Balance of the Receivables as
of the first day of the Collection Period preceding such Payment Date, plus (ii)
the Principal Shortfall Amount, minus (iii) the total Adjusted Principal Balance
of the Receivables as of the last day of the Collection Period preceding such
Payment Date; provided, however, that on the Stated Maturity Date for each Class
of Notes, the principal required to be deposited in the Note Payment Account
shall include the amount necessary (after giving effect to the other amounts to
be deposited in the Note Payment Account on such Payment Date and allocable to
principal) to reduce the outstanding principal amount of the Notes of such Class
to zero.
"Principal Shortfall Amount" shall mean, with respect to any
Payment Date, the excess of the Principal Distribution Amount for the preceding
Payment Date over the amount in respect of the Principal Distribution Amount
that is actually deposited in the Note Payment Account on such preceding Payment
Date.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Program" shall have the meaning assigned thereto in Section
3.11 of the Sale and Servicing Agreement.
"Prospectus" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of December 1, 2002, between MART II and MMCA, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Purchase Amount" shall mean, with respect to a Payment Date
and a Receivable to be repurchased by MART II or purchased by the Servicer on
such Payment Date, an amount equal to the sum of (a) the Principal Balance of
such Receivable as of the first day of the Collection Period preceding the
Collection Period in which such Payment Date occurs and (b) an amount equal to
the amount of accrued and unpaid interest on such Principal Balance at the
related APR from the date a payment was last made by or on behalf of the Obligor
through the due date for payment of such Receivable in the Collection Period
preceding the Collection Period in which such Payment Date occurs and, in the
case of clauses (a) and (b), after giving effect to the receipt of monies
collected on such Receivable in such preceding Collection Period.
"Purchased Receivable" shall mean, on any date of
determination, a Receivable as to which payment of the Purchase Amount has been
made by MART II pursuant to Section 2.3 of the Sale and Servicing Agreement or
by the Servicer pursuant to Section 3.7 or 9.1 of the Sale and Servicing
Agreement.
"Qualified Institution" shall mean Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, or any depository institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination by
federal or state banking authorities which at all times has a short-term deposit
rating of "Prime-1" by Xxxxx'x, "A-1" by S&P and "F1" by Fitch Ratings and, in
the case of any such institution organized under the laws of the United States
of America, whose deposits are insured by the Federal Deposit Insurance
Corporation or any successor thereto.
"Qualified Institutional Buyer" has the meaning specified in
Rule 144A.
"Qualified Trust Institution" shall mean the corporate trust
department of Bank of Tokyo-Mitsubishi Trust Company or any other institution
organized under the laws of the United States of America or any one of the
states thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America or one of the states
thereof qualified to take deposits and subject to supervision and examination by
federal or state banking authorities which at all times (i) is authorized under
such laws to act as a trustee or in any other fiduciary capacity, (ii) has not
less than one billion dollars in assets under fiduciary management and (iii) has
a long-term deposit rating that satisfies the Rating Agency Condition.
"Rating Agency" shall mean Xxxxx'x, S&P or Fitch Ratings, and
together, the "Rating Agencies." If no such organization or successor is any
longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Issuer, notice of which designation shall be given to the Indenture Trustee, the
Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have been given prior written notice
thereof and that each of the Rating Agencies shall have notified MART II, the
Servicer, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes or the Certificates.
"Realized Losses" shall mean, with respect to each Payment
Date and each Receivable that became a Defaulted Receivable during the related
Collection Period, the excess of the Principal Balance of such Defaulted
Receivable (including the principal of a Last Scheduled Payment) over the
Liquidation Proceeds attributable to such Defaulted Receivable.
"Receivable" shall mean each motor vehicle retail installment
sale contract described in the Schedule of Receivables, and all rights and
obligations thereunder and any amendments, modifications or supplements to such
motor vehicle retail installment sale contract.
"Receivable File" shall have the meaning assigned thereto in
Section 2.4 of the Sale and Servicing Agreement.
"Receivable Yield Supplement Amount" shall mean, with respect
to each Payment Date and each Receivable that was a Deferred Payment Receivable
as of the last day of the preceding Collection Period (other than a Receivable
which became a Defaulted Receivable or a Purchased Receivable or any Receivable
sold by the Indenture Trustee following an Event of Default pursuant to Section
5.4 of the Indenture), an amount equal to the product of (x) the Adjusted
Principal Balance of such Receivable on the first day of the preceding
Collection Period, (y) the Initial Weighted Average Rate plus 0.25%, and (z)
1/12.
"Receivables Purchase Price" shall mean $[ ].
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or (ii)
for any Definitive Notes and for the Certificates, the 15th day of the preceding
month, unless such 15th day is not a Business Day, in which case the immediately
preceding Business Day.
"Recoveries" shall mean, with respect to any Collection Period
following the Collection Period in which such Receivable became a Defaulted
Receivable, all monies received by the Servicer with respect to such Defaulted
Receivable during any Collection Period, net of the sum of (i) any expenses
incurred by the Servicer in connection with the collection of such Receivable
and the disposition of the Financed Vehicle (to the extent not previously
reimbursed) and (ii) any payments on such Receivable required by law to be
remitted to the Obligor.
"Redemption Date" shall mean the Payment Date specified by the
Servicer pursuant to Section 10.1 of the Indenture on which date the Indenture
Trustee shall withdraw any amount remaining in the Reserve Account and deposit
the applicable amount thereof payable to the Notes in the Note Payment Account
from any amount remaining in the Reserve Account.
"Redemption Price" shall mean an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest thereon
as of the applicable Redemption Date.
"Registered Holder" shall mean the Person in whose name a Note
is registered on the Note Register on the applicable Record Date.
"Relevant UCC" shall mean the Uniform Commercial Code as in
effect in any relevant jurisdiction. In the event that the Uniform Commercial
Code as in effect on the date hereof in any relevant jurisdiction is revised
subsequent to the date hereof, all references to specific sections of the
Uniform Commercial Code shall be deemed to be references to the successor
provisions of the Uniform Commercial Code.
"Repurchase Event" shall have the meaning specified in Section
6.2 of the Purchase Agreement.
"Required Rating" shall mean a rating on short-term unsecured
debt obligations of "Prime-1" by Xxxxx'x, "A-1" by S&P and "F1+" by Fitch
Ratings, and any requirement that short-term unsecured debt obligations have the
"Required Rating" shall mean that such short-term unsecured debt obligations
have the foregoing required ratings from each of such Rating Agencies.
"Reserve Account" shall mean the account established and
maintained as such pursuant to Section 4.7(a) of the Sale and Servicing
Agreement.
"Reserve Account Advance Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Reserve Account Amount" shall mean, with respect to any
Payment Date, the amount on deposit in the Reserve Account. Unless specifically
stated to the contrary, the Reserve Account Amount shall be calculated after
giving effect to all deposits and withdrawals therefrom on the prior Payment
Date (or, in the case of the first Payment Date, the Closing Date) and all
interest and other income (net of losses and investment expenses) on such
amounts during the related Collection Period.
"Reserve Account Initial Deposit" shall mean $[ ].
"Reserve Account Property" shall have the meaning assigned
thereto in Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account TRP Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Responsible Officer" shall mean (a) with respect to the
Indenture Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee with direct responsibility for the administration of the
Indenture and the other Basic Documents on behalf of the Indenture Trustee and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, (b) with respect to the Owner Trustee, any officer within
the Corporate Trust Office of the Owner Trustee with direct responsibility for
administration of the Trust, including any vice president, assistant vice
president, secretary, assistant secretary, financial services officer or any
other officer of the Owner Trustee, customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject and shall also mean any officer of the Administrator and (c) with
respect to the Issuer, any officer of the Owner Trustee who is authorized to act
for or on behalf of the Owner Trustee in matters relating to the Issuer and who
is identified on the list of Responsible Officers delivered by the Owner Trustee
to the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) and, for so long as the
Administration Agreement is in full force and effect, any officer of the
Administrator who is authorized to act for the Administrator in matters relating
to the Issuer and to be acted upon by the Administrator pursuant to the
Administration Agreement.
"Rule 144A" shall have the meaning assigned to such term in
Section 3.4(d)(i) of the Trust Agreement.
"Rule 144A Information" shall have the meaning assigned to
such term in Section 3.4(e) of the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of The XxXxxx-Xxxx Companies, Inc.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of December 1, 2002, by and among the Issuer, MART
II and the Servicer, as from time to time amended, supplemented or otherwise
modified and in effect.
"Sale Price" shall mean, with respect to any Final Payment
Receivable, an amount equal to the Last Scheduled Payment, minus the sum of any
charges for Excess Wear and Tear and Excess Mileage and the amount of any
disposition fee payable to the Servicer.
"Schedule of Receivables" shall mean the list of Receivables
attached as Exhibit B to the Purchase Agreement.
"Scheduled Payment" shall mean, for any Collection Period for
any Receivable, the amount indicated in such Receivable as required to be paid
by the Obligor in such Collection Period (without giving effect to modifications
of payment terms pursuant to Section 3.2 of the Sale and Servicing Agreement or
any rescheduling in any insolvency or similar proceedings).
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities" shall have the meaning specified in the MART II
Trust Agreement.
"Seller" shall mean MART II, in its capacity as seller of the
Receivables under the Sale and Servicing Agreement, and each successor thereto
(in the same capacity) pursuant to Section 6.3 of the Sale and Servicing
Agreement.
"Servicer" shall mean MMCA, in its capacity as servicer under
the Sale and Servicing Agreement, and any successor Servicer thereunder.
"Servicer's Certificate" shall have the meaning assigned
thereto in Section 3.9 of the Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to any Payment Date,
the fee payable to the Servicer for services rendered during the related
Collection Period, determined pursuant to and defined in Section 3.8 of the Sale
and Servicing Agreement.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Receivables, whose name appears on a list of servicing officers attached to an
Officer's Certificate furnished on the Closing Date to the Owner Trustee and the
Indenture Trustee by the Servicer, as such list may be amended from time to time
by the Servicer in writing.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
"Simple Interest Method" shall mean the method of allocating a
fixed payment between principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the APR
multiplied by the unpaid principal balance multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and a 365-day year) elapsed since the preceding payment was made
and the remainder of such payment is allocable to principal.
"Simple Interest Receivable" shall mean any Receivable under
which the portion of a payment allocable to interest and the portion allocable
to principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Balance" shall mean, with respect to any
Payment Date, the lesser of (a) 6.00% of the Adjusted Pool Balance and (b) the
outstanding principal amount of the Notes as of such Payment Date (after giving
effect to any principal payment made on such Payment Date). Notwithstanding the
foregoing, if (x) each Rating Agency delivers a letter to the Indenture Trustee
that the use of any new formulation requested by MART II would not cause a
downgrade, qualification or withdrawal of the then current rating on any Class
of Notes and (y) an Opinion of Counsel to the effect that the proposed change
will not adversely affect the status of the Notes as debt is delivered to the
Indenture Trustee, then the Specified Reserve Balance may be changed in
accordance with such letters without an amendment hereto.
"Specified Yield Supplement Account Balance" shall mean, (i)
on the Closing Date, $[ ], and (ii) as of the close of business on any Payment
Date, an amount equal to the sum of all projected Yield Supplement Amounts for
all future Payment Dates, assuming that no prepayments are made on the Deferred
Payment Receivables.
"Standard Receivable" shall mean all rights and obligations
under a Contract listed on a Schedule of Receivables which is not a Final
Payment Receivable.
"State" shall mean any of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx
xx Xxxxxxx or the District of Columbia.
"Stated Maturity Date" shall mean the Class A-1 Stated
Maturity Date, the Class A-2 Stated Maturity Date, the Class A-3 Stated Maturity
Date, the Class A-4 Stated Maturity Date, the Class B Stated Maturity Date and
the Class C Stated Maturity Date, collectively, or any of them, as the context
requires.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended, supplemented or otherwise modified and in effect from time to time.
"Subtrust" shall have the meaning specified in the MART II
Trust Agreement.
"Subtrust Assets" shall have the meaning specified in the MART
II Trust Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e) of the Indenture.
"Supplemental Servicing Fee" shall mean, with respect to any
Payment Date, the fee payable to the Servicer for services rendered during the
related Collection Period, determined pursuant to and defined in Section 3.8 of
the Sale and Servicing Agreement.
"Swap Counterparty" shall initially mean [ ] as a swap
counterparty under the Interest Rate Swap Agreement, or any successor or
replacement swap counterparty from time to time under the Interest Rate Swap
Agreement. A Swap Counterparty (or the institution guaranteeing such Swap
Counterparty's obligations) must have a long-term rating at least equal to "[ ]"
by [ ] and "[ ]" by [ ], and a short-term rating at least equal to "[ ]" by [ ]
and "[ ]" by [ ] at the time of entering into the Interest Rate Swap Agreement.
"Swap Termination Payment" shall mean any termination payment
payable by the Issuer to the Swap Counterparty or by the Swap Counterparty to
the Issuer under the Interest Rate Swap Agreement.
"Telerate Page 3750" shall mean the display designated as page
"3750" by Telerate, Inc. (or such other page as may replace Telerate Page 3750
on that service for the purpose of displaying London interbank offered rates of
major banks).
"Total Available Funds" shall mean, for any Payment Date, an
amount equal to the sum of (i) the Available Funds for such Payment Date and
(ii) the Reserve Account TRP Draw Amount, if any, for such Payment Date.
"Total Required Payment" shall mean, on any Payment Date, the
sum of (i) the Total Servicing Fee, (ii) any Net Swap Payments and any Swap
Termination Payments due and payable to the Swap Counterparty, (iii) the Accrued
Note Interest and (iii) the Principal Distribution Amount with respect to such
Payment Date.
"Total Servicing Fee" shall mean, with respect to any Payment
Date, the sum of (i) the Servicing Fee for the related Collection Period plus
(ii) all accrued and unpaid Servicing Fees for prior Collection Periods.
"Total Yield Supplement Overcollateralization Amount" shall
mean, with respect to any Payment Date, the sum of the Yield Supplement
Overcollateralization Amounts with respect to all Receivables (other than
Purchased Receivables or Defaulted Receivables) as of such Payment Date.
"Transfer" shall have the meaning assigned to such term in
Section 3.2 of the Trust Agreement.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean MMCA Auto Owner Trust 2002-5, a Delaware
statutory trust.
"Trust Accounts" shall have the meaning assigned thereto in
Section 5.1(a) of the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of December 1, 2002, between MART II and the Owner Trustee,
as the same may be amended, supplemented or otherwise modified and in effect
from time to time.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture for the benefit of the Noteholders and the
Swap Counterparty (including, without limitation, all property and interests
Granted to the Indenture Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture
Act of 1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, as of any date of determination,
the Receivables and other property related thereto sold, transferred, assigned
and otherwise conveyed by MART II to the Trust pursuant to Section 2.1(a) of the
Sale and Servicing Agreement.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated December [ ], 2002, by and between [ ], as representative of
the several underwriters of the Class A Notes and as the sole underwriter of the
Class B Notes and the Class C Notes, and MART II.
"Void Transfer" shall have the meaning assigned to such term
in Section 3.2 of the Trust Agreement.
"Weighted Average Rate" shall mean, with respect to any date
of determination, a per annum rate equal to (1) the sum of (a) the product of
(x) the outstanding principal amount of the Class A-1 Notes on such date and (y)
the Class A-1 Rate, plus (b) the product of (x) the outstanding principal amount
of the Class A-2 Notes on such date and (y) the Class A-2 Rate, plus (c) the
product of (x) the outstanding principal amount of the Class A-3 Notes on such
date and (y) the Class A-3 Rate, plus (d) the product of (x) the outstanding
principal amount of the Class A-4 Notes on such date and (y) the Class A-4 Rate,
plus (e) the product of (x) the outstanding principal amount of the Class B
Notes on such date and (y) the Class B Rate, plus (f) the product of (x) the
outstanding principal amount of the Class C Notes on such date and (y) the Class
C Rate, divided by (2) the sum of the outstanding principal amount of the Notes
on such date plus the Certificate Balance on such date; provided, that if the
date of determination is a Payment Date, then the outstanding principal amount
of any class of Notes shall be determined after giving effect to all payments
made on such date.
"Yield Supplement Account" shall have the meaning assigned
thereto in Section 5.1(a) of the Sale and Servicing Agreement.
"Yield Supplement Agreement" shall mean the Yield Supplement
Agreement, dated as of December 1, 2002, by and between MART II and MMCA, as
amended, modified or supplemented from time to time, substantially in the form
of Exhibit D to the Sale and Servicing Agreement.
"Yield Supplement Amount" shall mean, with respect to any
Payment Date, the sum of all Receivable Yield Supplement Amounts for the related
Collection Period.
"Yield Supplement Letter of Credit" shall mean any letter of
credit issued by the Letter of Credit Bank, as permitted by Section 5.1 of the
Sale and Servicing Agreement, to support payments of the Yield Supplement Amount
under the Yield Supplement Agreement.
"Yield Supplement Overcollateralization Amount" shall mean,
with respect to any Payment Date and any Receivable (other than a Purchased
Receivable or a Defaulted Receivable), an amount equal to the excess of (i) the
present value of the remaining Scheduled Payments due under such Receivable as
of the later to occur of (x) the last day of the preceding Collection Period and
(y) the first date on which interest accrues on such Receivable as set forth in
the related Contract, discounted at a rate equal to the APR of such Receivable,
over (ii) the present value of the remaining Scheduled Payments due under such
Receivable as set forth in clause (i) above, discounted at a rate equal to the
greater of the APR of the Receivable and 6.25%. For the purposes of the
foregoing calculation, the Payahead Balance with respect to any Actuarial
Receivable shall be applied to reduce the amount of any Scheduled Payment on the
related Actuarial Receivable in the order in which such Scheduled Payments were
due.
