EXHIBIT 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2001-3,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of October 1, 2001
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$222,000,000 2.470% Class A-1 Asset Backed Notes
$244,000,000 Floating Rate Class A-2 Asset Backed Notes
$437,000,000 Floating Rate Class A-3 Asset Backed Notes
$399,400,000 Floating Rate Class A-4 Asset Backed Notes
$98,440,000 Floating Rate Class B Asset Backed Notes
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CROSS REFERENCE TABLE (1)
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TIA Indenture
Section Section
310 (a)(1)..............................................................6.11
(a)(2)..............................................................6.11
(a)(3)..............................................................6.10
(a)(4)...........................................................N.A.(2)
(a)(5)..............................................................6.11
(b)............................................................6.8; 6.11
(c).................................................................N.A.
311 (a).................................................................6.12
(b).................................................................6.12
(c).................................................................N.A.
312 (a)....................................................................7.1
(b)..................................................................7.2
(c)..................................................................7.2
313 (a)..................................................................7.4
(b)(1)...............................................................7.4
(b)(2).........................................................7.4; 11.5
(c)..................................................................7.4
(d)..................................................................7.3
314 (a)..................................................................7.3
(b)................................................................11.15
(c)(1)..............................................................11.1
(c)(2)..............................................................11.1
(c)(3)..............................................................11.1
(d).................................................................11.1
(e).................................................................11.1
(f).................................................................11.1
315 (a)..................................................................6.1
(b)............................................................6.5; 11.5
(c)..................................................................6.1
(d)..................................................................6.1
(e).................................................................5.13
316 (a) (last sentence)..................................................1.1
(a)(1)(A)...........................................................5.11
(a)(1)(B)...........................................................5.12
(a)(2)..............................................................N.A.
(b)..................................................................5.7
(c)..................................................................N.A
317 (a)(1)...............................................................5.3
(a)(2)...............................................................5.3
(b)..................................................................3.3
318 (a).................................................................11.7
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 2
SECTION 1.1 Definitions 2
SECTION 1.2 Incorporated by Reference of Trust Indenture Act 13
SECTION 1.3 Rules of Construction 13
ARTICLE II THE NOTES 14
SECTION 2.1 Form 14
SECTION 2.2 Execution, Authentication and Delivery 14
SECTION 2.3 Temporary Notes 15
SECTION 2.4 Tax Treatment 15
SECTION 2.5 Registration; Registration of Transfer and Exchange 15
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes 16
SECTION 2.7 Persons Deemed Owner 17
SECTION 2.8 Payments 17
SECTION 2.9 Cancellation 21
SECTION 2.10 Release of Collateral 21
SECTION 2.11 Book-Entry Notes 22
SECTION 2.12 Notices to Clearing Agency 22
SECTION 2.13 Definitive Notes 22
SECTION 2.14 Authenticating Agents 23
ARTICLE III COVENANTS 23
SECTION 3.1 Payment Covenant 23
SECTION 3.2 Maintenance of Office or Agency 24
SECTION 3.3 Money for Payments To Be Held in Trust 24
SECTION 3.4 Existence 25
SECTION 3.5 Protection of Trust Estate 25
SECTION 3.6 Opinions as to Trust Estate 26
SECTION 3.7 Performance of Obligations;
Servicing of Receivables 26
SECTION 3.8 Negative Covenants 28
SECTION 3.9 Annual Statement as to Compliance 28
SECTION 3.10 Consolidation, Merger, etc., of the Issuer;
Disposition of Subtrust Assets 28
SECTION 3.11 No Other Business 29
SECTION 3.12 No Borrowing 29
SECTION 3.13 Servicer's Obligations 29
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities 29
SECTION 3.15 Capital Expenditures 29
SECTION 3.16 Further Instruments and Acts 29
SECTION 3.17 Restricted Payments 29
SECTION 3.18 Notice of Events of Default 29
SECTION 3.19 Removal of Administrator 30
SECTION 3.20 Calculation Agent 30
ARTICLE IV SATISFACTION AND DISCHARGE 30
SECTION 4.1 Satisfaction and Discharge of Indenture 30
SECTION 4.2 Satisfaction and Discharge of the Notes 31
SECTION 4.3 Application of Trust Money 32
SECTION 4.4 Repayment of Monies Held by Paying Agent 33
ARTICLE V REMEDIES 33
SECTION 5.1 Events of Default 33
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment 34
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee 35
SECTION 5.4 Remedies; Priorities 36
SECTION 5.5 Optional Preservation of the Receivables 38
SECTION 5.6 Limitation of Suits 38
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest 38
SECTION 5.8 Restoration of Rights and Remedies 39
SECTION 5.9 Rights and Remedies Cumulative 39
SECTION 5.10 Delay or Omission Not a Waiver 39
SECTION 5.11 Control by Noteholders 39
SECTION 5.12 Waiver of Past Default 40
SECTION 5.13 Undertaking for Costs 40
SECTION 5.14 Waiver of Stay or Extension Laws 40
SECTION 5.15 Action on Notes 40
SECTION 5.16 Performance and Enforcement of Certain Obligations 40
ARTICLE VI THE INDENTURE TRUSTEE 42
SECTION 6.1 Duties of Indenture Trustee 42
SECTION 6.2 Rights of Indenture Trustee 43
SECTION 6.3 Individual Rights of Indenture Trustee 44
SECTION 6.4 Indenture Trustee's Disclaimer 44
SECTION 6.5 Notice of Defaults 44
SECTION 6.6 Reports by Indenture Trustee to Holders 44
SECTION 6.7 Compensation and Indemnity 44
SECTION 6.8 Replacement of Indenture Trustee 45
SECTION 6.9 Successor Indenture Trustee by Merger 46
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee 46
SECTION 6.11 Eligibility; Disqualification 47
SECTION 6.12 Preferential Collection of Claims Against Issuer 48
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses 48
SECTION 6.14 Interest Rate Swap Provisions 48
ARTICLE VII NOTEHOLDERS' LISTS; REPORTING 50
SECTION 7.1 Issuer To Furnish Indenture Trustee
Names and Addresses of Noteholders 50
SECTION 7.2 Preservation of Information;
Communications to Noteholders 50
SECTION 7.3 Reporting by Issuer 51
SECTION 7.4 Reporting and Notices by Indenture Trustee 51
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES 51
SECTION 8.1 Collection of Money 51
SECTION 8.2 Trust Accounts 52
SECTION 8.3 General Provisions Regarding Accounts 52
SECTION 8.4 Release of Trust Estate 53
SECTION 8.5 Opinion of Counsel 53
ARTICLE IX SUPPLEMENTAL INDENTURES 54
SECTION 9.1 Supplemental Indentures Without
Consent of Noteholders 54
SECTION 9.2 Supplemental Indentures with Consent of Noteholders 55
SECTION 9.3 Execution of Supplemental Indentures 57
SECTION 9.4 Effect of Supplemental Indenture 57
SECTION 9.5 Conformity with Trust Indenture Act 57
SECTION 9.6 Reference in Notes to Supplemental Indentures 57
ARTICLE X REDEMPTION OF NOTES 58
SECTION 10.1 Redemption 58
SECTION 10.2 Form of Redemption Notice 58
SECTION 10.3 Notes Payable on Redemption Date 58
ARTICLE XI MISCELLANEOUS 59
SECTION 11.1 Compliance Certificates and Opinions, etc. 59
SECTION 11.2 Form of Documents Delivered to Indenture Trustee 60
SECTION 11.3 Acts of Noteholders 61
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agencies 61
SECTION 11.5 Notices to Noteholders; Waiver 63
SECTION 11.6 Alternate Payment and Notice Provisions 64
SECTION 11.7 Conflict with Trust Indenture Act 64
SECTION 11.8 Effect of Headings and Table of Contents 64
SECTION 11.9 Successors and Assigns 64
SECTION 11.10 Separability 64
SECTION 11.11 Benefits of Indenture 64
SECTION 11.12 Legal Holiday 64
SECTION 11.13 Governing Law 64
SECTION 11.14 Counterparts 64
SECTION 11.15 Recording of Indenture 64
SECTION 11.16 Trust Obligation 65
SECTION 11.17 No Petition; Subordination; Claims Against Seller 65
SECTION 11.18 Inspection 65
SECTION 11.19 Employee Benefit Plans 66
SCHEDULES
SCHEDULE A Schedule of Receivables...............................SA-1
SCHEDULE I List of Permitted Investments.........................SI-1
EXHIBITS
EXHIBIT A-1 Form of Class A-1 Note...............................A-1-1
EXHIBIT A-2 Form of Class A-2 Note...............................A-2-1
EXHIBIT A-3 Form of Class A-3 Note...............................A-3-1
EXHIBIT A-4 Form of Class A-4 Note...............................A-4-1
EXHIBIT B Form of Class B Note...................................B-1
EXHIBIT C Form of Opinion of Counsel
Pursuant to Section 3.6(a)......................... ...C-1
INDENTURE, dated as of October 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Indenture"), between MMCA AUTO OWNER TRUST 2001-3, a Delaware business trust
(the "Issuer"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York
banking corporation, as trustee for the benefit of the Noteholders and as
agent for the Swap Counterparties, and not in its individual capacity (in
such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Issuer's
2.470% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), Floating Rate
Class A-2 Asset Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3
Asset Backed Notes (the "Class A-3 Notes"), Floating Rate Class A-4 Asset
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes") and
Floating Rate Class B Asset Backed Notes (the "Class B Notes" and, together
with the Class A Notes, the "Notes") and the Swap Counterparties:
GRANTING CLAUSE
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The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes and the Swap Counterparties, all of the Issuer's right, title and
interest in, to and under, whether now owned or existing or hereafter
acquired or arising (a) the Receivables; (b) with respect to Actuarial
Receivables, monies due thereunder after the Cutoff Date (including
Payaheads) and, with respect to Simple Interest Receivables, monies received
thereunder after the Cutoff Date; (c) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other
interest of the Issuer in the Financed Vehicles; (d) all rights to receive
proceeds with respect to the Receivables from claims on any physical damage,
theft, credit life or disability insurance policies covering the Financed
Vehicles or Obligors; (e) all rights to receive proceeds with respect to the
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements; (f) all rights to the Receivable Files; (g) the Trust Accounts
and all amounts, securities, financial assets, investments and other property
deposited in or credited to any of the foregoing and all proceeds thereof;
(h) all rights under the Sale and Servicing Agreement and the Yield
Supplement Agreement; (i) all rights under the Purchase Agreement, including
the right of the Seller to cause MMCA to repurchase Receivables from the
Seller; (j) all payments and proceeds with respect to the Receivables held by
the Servicer; (k) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Issuer pursuant to the terms of a Final Payment Receivable),
guarantees and other collateral securing a Receivable (other than a
Receivable purchased by the Servicer or repurchased by the Seller); (l) all
rebates of premiums and other amounts relating to insurance policies and
other items financed under the Receivables in effect as of the Cutoff Date;
(m) all of the Issuer's rights in the Interest Rate Swap Agreements; and (n)
all present and future claims, demands, causes of action and choses in action
in respect of any or all of the foregoing and all payments on or under and
all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Initial Collateral").
The Issuer hereby Grants to the Indenture Trustee on each
Subsequent Transfer Date, as Indenture Trustee for the benefit of the Holders
of the Notes and the Swap Counterparties, all of the Issuer's right title and
interest in, to and under, whether now owned or existing or hereafter
acquired or arising: (a) the Subsequent Receivables listed on Schedule A to
the related Second-Tier Subsequent Assignment; (b) with respect to the
Subsequent Receivables that are Actuarial Receivables, monies due thereunder
on or after the related Subsequent Cutoff Date (including Payaheads) and,
with respect to Subsequent Receivables that are Simple Interest Receivables,
monies received thereunder on or after the related Subsequent Cutoff Date;
(c) the security interests in Financed Vehicles granted by Obligors pursuant
to the Subsequent Receivables and any other interest of the Seller in such
Financed Vehicles; (d) all rights to receive proceeds with respect to such
Subsequent Receivables from claims on any physical damage, theft, credit life
or disability insurance policies covering the related Financed Vehicles or
related Obligors; (e) all rights to receive proceeds with respect to such
Subsequent Receivables from recourse to Dealers thereon pursuant to Dealer
Agreements; (f) all rights to the Receivable Files that relate to such
Subsequent Receivables; (g) all payments and proceeds with respect to such
Subsequent Receivables held by the Servicer; (h) all property (including the
right to receive Liquidation Proceeds and Recoveries and Financed Vehicles
and the proceeds thereof acquired by the Issuer pursuant to the terms of a
Subsequent Receivable that is a Final Payment Receivable), guarantees and
other collateral securing a Subsequent Receivable (other than a Subsequent
Receivable purchased by the Servicer or repurchased by the Seller); (i) all
of the Seller's rights under the related First Tier Subsequent Assignment;
(j) all rebates of premiums and other amounts relating to insurance policies
and other items financed under such Subsequent Receivables in effect as of
the related Subsequent Cutoff Date; and (k) all present and future claims,
demands, causes of action and choses in action in respect of any or all of
the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, and along with the Initial
Collateral, the "Collateral").
The foregoing Grant is made in trust to secure (a) the payment
of principal of and interest on, and any other amounts owing in respect of,
the Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture, and (b) the payment of amounts payable to the
Swap Counterparties under the Interest Rate Swap Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes and the Swap Counterparties, acknowledges such Grant,
accepts the trusts under this Indenture in accordance with the provisions of
this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Holders of the
Notes and the Swap Counterparties may be adequately and effectively
protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. (a) Except as otherwise specified
herein or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture.
"Accrued Note Interest" shall mean, with respect to any
Payment Date and each Class of Notes, the sum of the Monthly Accrued Note
Interest and the Interest Carryover Shortfall for such Class for such Payment
Date.
"Act" shall have the meaning specified in Section 11.3(a).
"Administration Agreement" shall mean the Administration
Agreement, dated as of October 1, 2001, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of
America, Inc., a Delaware corporation, or any successor
Administrator under the Administration Agreement.
"Authenticating Agent" shall have the meaning specified in
Section 2.14.
"Basic Documents" shall mean this Indenture, the Certificate
of Trust, the Trust Agreement, the Assignments (as defined in the Purchase
Agreement), the Sale and Servicing Agreement, the Purchase Agreement, the
Administration Agreement, the Note Depository Agreement, the Interest Rate
Swap Agreements, the Yield Supplement Agreement, the Control Agreement and
other documents and certificates delivered in connection therewith as the
same may from time to time be amended, supplemented or otherwise modified
and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 2.11.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New
York, New York, Wilmington, Delaware or Los Angeles, California are
authorized or obligated by law, regulation or executive order to be closed.
"Calculation Agent" shall have the meaning specified in
Section 3.20.
"Certificate of Trust" shall mean the certificate of trust of
the Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Class" shall mean a class of Notes, which may be the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes or
the Class B Notes.
"Class A Interest Rate Swap Agreements" shall mean the
interest rate swap agreement relating to the Class A-2 Interest Rate Swap,
the interest rate swap agreement relating to the Class A-3 Interest Rate
Swap and the interest rate swap agreement relating to the Class A-4 Interest
Rate Swap, including all schedules and confirmations thereto, between the
Issuer and the related Swap Counterparty, as the same may be amended,
supplemented, renewed, extended or replaced from time to time, which
agreements provide for payments on notional amounts equal to the outstanding
principal balance of the Class A-2 Notes, the Class A-3 Notes or the Class
A-4 Notes, as the case may be.
"Class A Interest Rate Swaps" shall mean the Class A-2
Interest Rate Swap, the Class A-3 Interest Rate Swap and the Class A-4
Interest Rate Swap.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A Percentage" shall mean approximately 91.65%,
calculated as the percentage equivalent of a fraction the numerator of which
is the sum of the principal amount on the date of issuance of the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, and the denominator of
which is the sum of the principal amount on the date of issuance of the
Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B
Notes, however, in the event that after the Class A-1 Notes have been paid
in full, the amount on deposit in the Reserve Account on any Payment Date
falls to less than 1.00% of the Initial Adjusted Pool Balance, the Class A
Percentage shall be 100% and the Class A Percentage will thereafter remain
at 100% even if the amount on deposit in the Reserve Account subsequently
increases to more than 1.00% of the Initial Adjusted Pool Balance.
"Class A Swap Termination Payments" shall mean any
termination payment payable by the Issuer to a Swap Counterparty or by a
Swap Counterparty to the Issuer under a Class A Interest Rate Swap
Agreement.
"Class A-1 Noteholder" shall mean the Person in whose name a
Class A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $222,000,000 aggregate
initial principal amount of 2.470% Class A-1 Asset Backed Notes issued by
the Issuer pursuant to this Indenture, substantially in the form of Exhibit
A-1 to this Indenture.
"Class A-1 Rate" shall mean 2.470% per annum.
"Class A-1 Stated Maturity Date" shall mean the October 2002
Payment Date.
"Class A-2 Interest Rate Swap" shall mean the interest rate
swap as to the Class A-2 Notes with The Chase Manhattan Bank, as Swap
Counterparty, to hedge the floating interest Class A-2 Rate.
"Class A-2 Noteholder" shall mean the Person in whose name a
Class A-2 Note is registered on the Note Register.
Class A-2 Notes" shall mean the $244,000,000 aggregate
initial principal amount of Floating Rate Class A-2 Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-2 to this Indenture.
"Class A-2 Rate" shall mean one-month LIBOR plus 0.18%.
"Class A-2 Stated Maturity Date" shall mean the May 2004
Payment Date.
"Class A-3 Interest Rate Swap" shall mean the interest rate
swap as to the Class A-3 Notes with The Chase Manhattan Bank, as Swap
Counterparty, to hedge the floating interest Class A-3 Rate. "Class A-3
Noteholder" shall mean the Person in whose name a Class A-3 Note is
registered on the Note Register.
"Class A-3 Notes" shall mean the $437,000,000 aggregate
initial principal amount of Floating Rate Class A-3 Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-3 to this Indenture.
"Class A-3 Rate" shall mean one-month LIBOR plus 0.25%.
"Class A-3 Stated Maturity Date" shall mean the February 2006
Payment Date.
"Class A-4 Interest Rate Swap" shall mean the interest rate
swap as to the Class A-4 Notes with The Chase Manhattan Bank, as Swap
Counterparty, to hedge the floating interest Class A-4 Rate.
"Class A-4 Noteholder" shall mean the Person in whose name a
Class A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $399,400,000 aggregate
initial principal amount of Floating Rate Class A-4 Asset Backed Notes
issued by the Issuer pursuant to this Indenture, substantially in the form
of Exhibit A-4 to this Indenture.
"Class A-4 Rate" shall mean one-month LIBOR plus 0.30%.
"Class A-4 Stated Maturity Date" shall mean the April 2007
Payment Date.
"Class B Interest Rate Swap" shall mean the interest rate
swap as to the Class B Notes with The Chase Manhattan Bank, as Swap
Counterparty, to hedge the floating interest Class B Rate.
"Class B Interest Rate Swap Agreement" shall mean the
interest rate swap agreement relating to the Class B Interest Rate Swap,
including all schedules and confirmations thereto, between the Issuer and
the related Swap Counterparty, as the same may be amended, supplemented,
renewed, extended or replaced from time to time, which agreement provides
for payments on notional amounts equal to the outstanding principal balance
of the Class B Notes.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered on the Note Register.
"Class B Notes" shall mean the $98,4440,000 aggregate initial
principal amount of Floating Rate Class B Asset Backed Notes issued by the
Issuer pursuant to this Indenture, substantially in the form of Exhibit B to
this Indenture.
"Class B Percentage" shall mean approximately 8.35%,
calculated as the percentage equivalent of a fraction the numerator of which
is the principal amount on the date of issuance of the Class B Notes, and
the denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes
and the Class B Notes, however, in the event that after the Class A-1 Notes
have been paid in full, the amount on deposit in the Reserve Account on any
Payment Date falls to less than 1.00% of the Initial Adjusted Pool Balance,
the Class B Percentage shall be 0% and the Class B Percentage will
thereafter remain at 0% even if the amount on deposit in the Reserve Account
subsequently increases to more than 1.00% of the Initial Adjusted Pool
Balance.
"Class B Rate" shall mean one-month LIBOR plus 0.95%.
"Class B Stated Maturity Date" shall mean the November 2008
Payment Date.
"Class B Swap Termination Payment" shall mean any termination
payment payable by the Issuer to a Swap Counterparty or by a Swap
Counterparty to the Issuer under the Class B Interest Rate Swap Agreement.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time
a Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" shall mean October 12, 2001.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations, including proposed
or temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting
Clause of this Indenture.
"Commission" shall mean the Securities and Exchange
Commission.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of October 1, 2001, by and among the Seller, the Issuer,
the Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust
Company in its capacity as a securities intermediary, as the same may from
time to time be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean the principal office of
the Indenture Trustee at which at any particular time its corporate trust
business shall be administered, which office at date of execution of this
Indenture is located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Corporate Trust Department, or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" shall mean any occurrence that is, or with notice
or the lapse of time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in
Section 2.11.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"Event of Default" shall have the meaning specified in
Section 5.1.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Executive Officer" shall mean, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President,
the Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Final Scheduled Maturity Date" shall mean with respect to
any Receivable, October 31, 2008.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer, create, and to
xxxxx x xxxx upon and a security interest in and right of set-off against,
and to deposit, set over and confirm pursuant to this Indenture. A Grant of
the Collateral or of any other agreement or instrument shall include all
rights, powers and options (but none of the obligations) of the granting
party thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of the Collateral and all other monies payable thereunder, to give
and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the granting party or otherwise, and generally to do and receive
anything that the granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" or "Noteholder" shall mean the Person in whose name
a Note is registered on the Note Register.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee under this
Indenture, or any successor Indenture Trustee under this Indenture.
"Independent" shall mean, when used with respect to any
specified Person, that such Person (a) is in fact independent of the Issuer,
any other obligor on the Notes, the Seller and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the Seller or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
"Independent Certificate" shall mean a certificate or opinion
to be delivered to the Indenture Trustee under the circumstances described
in, and otherwise complying with, the applicable requirements of Section
11.1, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in this Indenture and that the
signer is Independent within the meaning thereof.
"Index Maturity" shall mean one month.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, the period from and including the preceding Payment Date
through the day preceding the Payment Date; provided, that for the first
Payment Date, the "Interest Accrual Period" shall mean the period from and
including the Closing Date through November 15, 2001.
"Interest Carryover Shortfall" shall mean, with respect to
any Payment Date and any Class of Notes, the excess of the sum of the
Monthly Accrued Note Interest for the preceding Payment Date and any
outstanding Interest Carryover Shortfall from the close of business on such
preceding Payment Date, over the amount in respect of interest that is
actually deposited in the Note Payment Account on such preceding Payment
Date with respect to such Class, plus interest on such excess, to the extent
permitted by law, at the applicable Note Interest Rate for the related
Interest Accrual Period.
"Interest Rate Swap Agreements" shall mean the Class A
Interest Rate Swap Agreements and the Class B Interest Rate Swap Agreement.
Each Interest Rate Swap Agreement shall provide that a termination event
will occur under the circumstances described in Section 6.14(g) herein.
"Interest Reset Date" means, with respect to the floating
rate Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and the Class B
Notes, the first day of the applicable Interest Accrual Period.
"Issuer" shall mean MMCA Auto Owner Trust 2001-3, unless a
successor replaces it and, thereafter, means the successor and for purposes
of any provision contained herein and required by the TIA, each other
obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written
order or request signed in the name of the Issuer by any one of its
Responsible Officers and delivered to the Indenture Trustee.
"LIBOR" shall mean the London Interbank Offered Rate for U.S.
dollar deposits for each Interest Accrual Period as determined by the
Calculation Agent, as follows:
(1) On or as of the LIBOR Determination Date, the Calculation
Agent will obtain the rate for deposits in U.S. dollars for a
period of the Index Maturity, commencing on such Interest
Reset Date, which appears on the Telerate Page 3750, as of
11:00 a.m., London time, on such LIBOR Determination Date.
(2) If the Calculation Agent determines that Telerate Page 3750
or such page as may replace Telerate Page 3750 is not
available on such LIBOR Determination Date, the Calculation
Agent will request the principal London offices of each of
four major banks in the London interbank market selected by
such Calculation Agent to provide such Calculation Agent with
its offered quotations for deposits in U.S. dollars for a
period of the Index Maturity, commencing on such Interest
Reset Date, to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such LIBOR
Determination Date and in a principal amount equal to an
amount of not less than U.S.$1,000,000 that is representative
of a single transaction in such market at such time. If at
least two such quotations are provided, LIBOR for such
Interest Accrual Period will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided,
LIBOR for such Interest Accrual Period will be the arithmetic
mean of rates quoted by three major banks in the city of New
York selected by the Calculation Agent for such LIBOR
Security at approximately 11:00 a.m., New York City time, on
the first day of such Interest Accrual Period for loans in
U.S. dollars to leading European banks, for the period of the
specified Index Maturity, commencing on such Interest Reset
Date, and in a principal amount equal to an amount of not
less than U.S.$1,000,000 that is representative of a single
transaction in such market at such time; provided, however,
that if the banks selected as aforesaid by such Calculation
Agent are not quoting rates as mentioned in this sentence,
LIBOR for such Interest Accrual Period will be the same as
LIBOR for the immediately preceding Interest Accrual Period;
provided, however, that LIBOR with respect to interest
accrued from the Closing Date until the first Payment Date
shall be equal to 2.53125%.
"LIBOR Determination Date" shall mean the second London and
New York Banking Day prior to the Interest Reset Date for the related
Interest Accrual Period.
"LIBOR Security" shall mean a Class A-2 Note, a Class A-3
Note, a Class A-4 Notes or a Class B Note.
"London and New York Banking Day" shall mean any business day
on which dealings in deposits in United States dollars are transacted in the
London and New York interbank markets.
"MART Trust Agreement" shall mean the Amended and Restated
Trust Agreement, dated as of October 1, 1999, between MMCA, as beneficiary,
and Chase Manhattan Bank USA, N.A., a national banking association (as
successor to Chase Manhattan Bank Delaware), as trustee, relating to the
Seller, as from time to time amended, supplemented or otherwise modified and
in effect.
Monthly Accrued Note Interest" shall mean, with respect to
any Payment Date and (i) any Class of Notes, interest accrued for the
related Interest Accrual Period at the applicable Note Interest Rate for
such Class on the aggregate principal amount of the Notes of such Class as
of the immediately preceding Payment Date, after giving effect to all
payments of principal to Noteholders on or prior to such preceding Payment
Date (or, in the case of the first Payment Date, the initial principal
amount of the Notes); and (ii) with respect to the Notes collectively, the
sum of Monthly Accrued Note Interest for each Class.
"Net Swap Payment" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
the Issuer to such Swap Counterparty, excluding any Swap Termination
Payments.
"Net Swap Receipt" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
such Swap Counterparty to the Issuer, excluding any Swap Termination
Payments.
"Note Depository Agreement" shall mean the agreement dated as
of October 12, 2001, among the Issuer, the Indenture Trustee, the
Administrator and The Depository Trust Company, as the initial Clearing
Agency, relating to the Notes.
"Note Interest Rate" shall mean, in the case of the Class A-1
Notes, the Class A-1 Rate, in the case of the Class A-2 Notes, the Class A-2
Rate, in the case of the Class A-3 Notes, the Class A-3 Rate, in the case of
the Class A-4 Notes, the Class A-4 Rate, and in the case of the Class B
Notes, the Class B Rate.
"Note Owner" shall mean, with respect to any Book-Entry Note,
the Person who is the beneficial owner of such Book-Entry Note, as reflected
on the books of the Clearing Agency or on the books of a Person maintaining
an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with
the rules of such Clearing Agency).
"Note Register" and "Note Registrar" shall have the
respective meanings specified in Section 2.5(a).
"Noteholders" shall mean the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and
the Class B Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class B Notes,
collectively.
"Officer's Certificate" shall mean a certificate signed by
any Responsible Officer of the Issuer, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Responsible Officer of the Issuer.
"Opinion of Counsel" shall mean one or more written opinions
of counsel who may, except as otherwise expressly provided in this
Indenture, be employees of or counsel to the Issuer, MMCA or the Servicer
and who shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee as Indenture Trustee,
shall comply with the applicable requirements of Section 11.1, and shall be
in form and substance satisfactory to the Indenture Trustee.
"Outstanding" shall mean, as of the date of determination,
all Notes theretofore authenticated and delivered under this Indenture
except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with
the Indenture Trustee or any Paying Agent in trust for the Holders
of such Notes (provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a protected purchaser;
provided, that in determining whether the Holders of the requisite
principal amount of the Notes Outstanding have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, the Seller, the Servicer or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
on any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal
amount of all Notes Outstanding at the date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
Owner Trustee under the Trust Agreement, or any successor Owner Trustee
under the Trust Agreement.
"Paying Agent" shall mean the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 and is authorized by the Issuer to make payments
to and distributions from the Collection Account and the Note Payment
Account, including payment of principal of or interest on the Notes on
behalf of the Issuer.
"Payment Date" shall mean the 15th day of each month, or if
any such day is not a Business Day, the immediately following Business Day,
commencing November 15, 2001.
"Plan" shall mean an employee benefit plan subject to Title I
of ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Predecessor Note" shall mean, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note and, for purposes of this definition,
any Note authenticated and delivered under Section 2.6 in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Rating Agency" shall mean Xxxxx'x, S&P or Fitch, and
together, the "Rating Agencies." If no such organization or successor is any
longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Issuer, notice of which designation shall be given to the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have been given prior written notice
thereof and that each of the Rating Agencies shall have notified the Seller,
the Servicer, the Indenture Trustee and the Owner Trustee that such action
shall not result in a reduction or withdrawal of the then current rating
assigned to any Class of Notes.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or,
(ii) for any Definitive Notes that have been issued pursuant to Section
2.13, the fifteenth (15th) day of the preceding month, unless such fifteenth
(15th) day is not a Business Day, in which case the immediately preceding
Business Day.
"Redemption Date" shall mean (a) in the case of a redemption
of Notes pursuant to Section 10.1(a), the Payment Date specified by the
Servicer pursuant to Section 10.1(a) on which date the Indenture Trustee
shall withdraw any amount remaining in the Reserve Account and deposit the
applicable amount thereof payable to the Notes in the Note Payment Account
from any amount remaining in the Reserve Account and (b) in the case of a
redemption of Notes pursuant to Section 10.1(b), the Payment Date specified
by the Servicer pursuant to Section 4.11(b) of the Sale and Servicing
Agreement.
"Redemption Price" shall mean (a) in the case of a redemption
of Notes pursuant to Section 10.1(a), an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest
thereon as of the applicable Redemption Date, and (b) in the case of a
redemption of Notes pursuant to Section 10.1(b), an amount equal to the
lesser of (x) the Remaining Pre-Funded Amount withdrawn from the Pre-Funding
Account and deposited to the Collection Account on or prior to the
Redemption Date pursuant to Section 4.11(b) of the Sale and Servicing
Agreement and (y) the amount specified in clause (a) above.
"Registered Holder" shall mean the Person in whose name a
Note is registered on the Note Register on the applicable Record Date.
"Responsible Officer" shall mean, (a) with respect to the
Issuer, any officer of the Owner Trustee who is authorized to act for or on
behalf of the Owner Trustee in matters relating to the Issuer and who is
identified on the list of Responsible Officers delivered by the Owner
Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and, for so long as
the Administration Agreement is in full force and effect, any officer of the
Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement and (b) with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee with
direct responsibility for the administration of this Indenture and also,
with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of October 1, 2001, by and among the Issuer,
the Seller and the Servicer, as from time to time amended, supplemented or
otherwise modified and in effect.
"Securities" shall have the meaning specified in the MART
Trust Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean MMCA Auto Receivables Trust, a Delaware
business trust, in its capacity as seller under the Sale and Servicing
Agreement, and its successors-in-interest.
"Servicer" shall mean Mitsubishi Motors Credit of America,
Inc., a Delaware corporation, in its capacity as servicer under the
Sale and Servicing Agreement, and any successor Servicer thereunder.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial Assets
and Extinguishments of Liabilities.
"State" shall mean any of the fifty States of the United
States of America or the District of Columbia.
"Stated Maturity Date" shall mean the Class A-1 Stated
Maturity Date, the Class A-2 Stated Maturity Date, the Class A-3 Stated
Maturity Date, the Class A-4 Stated Maturity Date and the Class B Stated
Maturity Date, collectively, or any of them, as the context requires.
"Subtrust" shall have the meaning specified in the MART Trust
Agreement.
"Subtrust Assets" shall have the meaning specified in the
MART Trust Agreement.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e).
"Swap Counterparty" shall initially mean The Chase Manhattan
Bank as swap counterparty under the Interest Rate Swap Agreements, or any
successors or replacement swap counterparties from time to time under any
Interest Rate Swap Agreement. Each Swap Counterparty (or the institution
guaranteeing such Swap Counterparty's obligations) must have a long-term
rating at least equal to "A2" by Xxxxx'x and "A" by Fitch, and a short-term
rating at least equal to "A-1" by S&P and "F1" by Fitch at the time of
entering into the Interest Rate Swap Agreements.
"Swap Termination Payment" shall mean the Class A Swap
Termination Payment and the Class B Swap Termination Payment.
"Telerate Page 3750" shall mean the display designated as
page "3750" by Telerate, Inc. (or such other page as may replace Telerate
Page 3750 on that service for the purpose of displaying London interbank
offered rates of major banks).
"Total Required Payment" shall mean, on any Payment Date, the
sum of (i) the Total Servicing Fee, (ii) any Net Swap Payments and any Swap
Termination Payments due and payable to the Swap Counterparty, (iii) the
Accrued Note Interest and (iv) the Principal Distribution Amount with
respect to such Payment Date.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Noteholders and
the Swap Counterparties (including, without limitation, all property and
interests Granted to the Indenture Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture
Act of 1939, as amended, unless otherwise specifically provided.
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein
have the respective meanings set forth in, or incorporated by reference
into, the Sale and Servicing Agreement for all purposes of this Indenture.
SECTION 1.2 Incorporated by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
in the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words
in the plural include the singular; and
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered
in connection herewith means such agreement, instrument or statute
as from time to time amended, modified or supplemented and
includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and
assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form. (a) The Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes,
together with the Indenture Trustee's Certificates of Authentication, shall
be in substantially the form set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit
X-0, Xxxxxxx X-0 and Exhibit B, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution thereof. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibits X-0, X-0, X-0, X-0 and B hereto
are part of the terms of this Indenture and are incorporated herein by
reference.
SECTION 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by
any of its Responsible Officers. The signature of any such Responsible
Officer on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Responsible Officers of the Issuer shall
bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Notes or did not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $222,000,000, Class A-2 Notes for original issue in an
aggregate principal amount of $244,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $437,000,000, Class A-4 Notes for
original issue in an aggregate principal amount of $399,400,000, and Class B
Notes for original issue in an aggregate principal amount of $98,440,000.
The aggregate principal amounts of Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class B Notes outstanding at any time may not
exceed those respective amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication.
The Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Note a certificate of authentication substantially in the form provided
for herein executed by the Indenture Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to
Section 2.13, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that
are printed, lithographed, typewritten, mimeographed or otherwise produced,
of the tenor of the Definitive Notes in lieu of which they are issued and
with such variations not inconsistent with the terms of this Indenture as
the officers executing such Notes may determine, as evidenced by their
execution of such Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a),
the Issuer shall cause Definitive Notes to be prepared without unreasonable
delay. After the preparation of Definitive Notes, the temporary Notes shall
be exchangeable for Definitive Notes upon surrender of the temporary Notes
at the office or agency of the Issuer to be maintained as provided in
Section 3.2, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver in exchange therefor, a
like principal amount of Definitive Notes of authorized denominations. Until
so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The
Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note (and each Note Owner by its acceptance of an interest
in the applicable Book-Entry Note), agree to treat the Notes for federal,
state and local income and franchise tax purposes as indebtedness of the
Issuer.
SECTION 2.5 Registration; Registration of Transfer and
Exchange.
(a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. Upon any resignation of any Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such
an appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed
by the Issuer as Note Registrar, (i) the Issuer shall give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and
of the location and any change in the location, of the Note Register, (ii)
the Indenture Trustee shall have the right to inspect the Note Register at
all reasonable times and to obtain copies thereof and (iii) the Indenture
Trustee shall have the right to rely upon a certificate executed on behalf
of the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number
of such Notes.
(c) Upon surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided in
Section 3.2, if the requirements of Section 8-401 of the Relevant UCC are
met, the Issuer shall execute, and the Indenture Trustee shall authenticate
and the Noteholder shall obtain from the Indenture Trustee, in the name of
the designated transferee or transferees, one or more new Notes of the same
Class in any authorized denomination, of a like aggregate principal amount.
The Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-401 of the Relevant
UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged
for other Notes of the same Class in any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange,
if the requirements of Section 8-401 of the Relevant UCC are met, the Issuer
shall execute, the Indenture Trustee shall authenticate, and the Noteholder
shall obtain from the Indenture Trustee, the Notes which the Noteholder
making such exchange is entitled to receive. The Indenture Trustee may rely
upon the Administrator with respect to the determination of whether the
requirements of Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture as the
Notes surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
(h) The preceding provisions of this Section 2.5
notwithstanding, the Issuer shall not be required to make and the Note
Registrar need not register transfers or exchanges of Notes selected for
redemption or of any Note for a period of fifteen (15) days preceding the
due date for any payment with respect to such Note.
(i) Each Person to whom a Note is transferred will be
required to represent, in the case of a Definitive Note, or deemed to
represent, in the case of a Book-Entry Note, that (x) such Person is not an
employee benefit plan, as described in section 3(3) of ERISA, or a plan, as
defined in section 4975(E)(1) of the Code, that is subject to Title I of
ERISA or to section 4975 of the Code, a government plan subject to any state
or local law similar to Title I of ERISA or section 4975 of the Code, or a
Person investing on behalf of or with "plan assets" of such a plan, or (y)
the Person's acquisition, holding and disposition of the Note are and will
be eligible for relief under a prohibited transaction exemption.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by it to
hold the Issuer and the Indenture Trustee harmless, then, in the absence of
notice to the Issuer, the Note Registrar or the Indenture Trustee that such
Note has been acquired by a protected purchaser, and provided that the
requirements of Section 8-405 of the Relevant UCC are met, the Issuer shall
execute, and upon its request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of the same Class; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become or within seven (7) days of the Indenture Trustee's
receipt of evidence to its satisfaction of such destruction, loss or theft
shall be due and payable, or shall have been called for redemption, instead
of issuing a replacement Note of the same Class, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Redemption
Date without surrender thereof. The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements
of Section 8-405 of the Relevant UCC are met. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a protected purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment
such original Note, the Issuer and the Indenture Trustee shall be entitled
to recover such replacement Note (or such payment) from the Person to whom
it was delivered or any Person taking such replacement Note from such Person
to whom such replacement Note was delivered or any assignee of such Person,
except a protected purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under this
Section 2.6, the Issuer may require the payment by the Holder of such Note
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section
2.6 in replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes.
SECTION 2.7 Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee
and any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of and
interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Issuer, the Indenture
Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.8 Payments.
(a) On each Payment Date, upon receipt of written
instructions from the Servicer pursuant to Section 4.6(c) of the Sale and
Servicing Agreement, the Indenture Trustee shall withdraw the Total
Available Funds on deposit in the Collection Account for the related
Collection Period and make the following payments and deposits for such
Payment Date in the following order of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net
Swap Payments then due under the Interest Rate Swap Agreements
(exclusive of any Swap Termination Payments);
(iii) with the same priority and ratably, in accordance
with the outstanding balance of the Class A Notes and the amount
of any Class A Swap Termination Payments due and payable by the
Issuer to the Swap Counterparties in respect of the Class A
Interest Rate Swaps,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class A Notes, and
(B) to the Swap Counterparties, any Class A Swap
Termination Payments in respect of the Class A
Interest Rate Swaps;
provided, that, if any amounts allocable to the Class A Notes
are not needed to pay interest due on such Notes, such amounts shall be
applied to pay the portion, if any, of any Class A Swap Termination Payments
remaining unpaid, pro rata based on the amount of the Class A Swap
Termination Payments, and provided, further, that if there are not
sufficient funds available to pay the entire amount of the Accrued Note
Interest for the Class A Notes, the amounts available shall be applied to
the payment of such interest on the Class A Notes on a pro rata basis;
(iv) with the same priority and ratably, in accordance
with the outstanding balance of the Class B Notes and the amount
of any Class B Swap Termination Payments due and payable by the
Issuer to the Swap Counterparty in respect of the Class B Interest
Rate Swap,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class B Notes; and
(B) to the Swap Counterparties, any Class B Swap
Termination Payments in respect of the Class B
Notes; provided, that, if any amount allocable to
the Class B Notes are not needed to pay interest
due on such Notes, such amounts shall be applied to
pay the portion, if any, of any Class B Swap
Termination Payments remaining unpaid;
(v) to the Note Payment Account, the Principal
Distribution Amount;
(vi) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve
Account up to the Specified Reserve Balance; and
(vii) to the Certificate Distribution Account, any
remaining portion of Total Available Funds.
Notwithstanding the foregoing, following the occurrence and
during the continuation of an Event of Default which has resulted in an
acceleration of the Notes, on each Payment Date the Total Available Funds
shall be deposited in the Note Payment Account and applied in accordance
with Section 2.8(f).
(b) The principal of each Note shall be payable in
installments on each Payment Date in an aggregate amount (unless the Notes
have been accelerated in accordance with Section 5.2 following the
occurrence of an Event of Default) for all Classes of Notes equal to the
Principal Distribution Amount with respect to such Payment Date. On each
Payment Date, unless the Notes have been accelerated in accordance with
Section 5.2 following the occurrence of an Event of Default, the Issuer
shall cause to be paid all amounts on deposit in the Note Payment Account
with respect to the related Collection Period in the following order of
priority:
(i) to the Class A Noteholders, Accrued Note Interest
(and, if amounts on deposit in the Note Payment Account are
insufficient for such purpose, payments shall be made to the to
the Class A Noteholders pro rata in proportion to the Accrued Note
Interest for each Class of Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class A-1 Noteholders, 100% of the
Principal Distribution Amount in reduction of principal until the
Class A-1 Notes are paid in full;
(iv) following payment in full of the Class A-1 Notes,
the Class A Percentage of the Principal Distribution Amount in
reduction of principal to the Class A-2 Noteholders until the
Class A-2 Notes are paid in full, then to the Class A-3
Noteholders until the Class A-3 Notes are paid in full, then to
the Class A-4 Noteholders until the Class A-4 Notes are paid in
full; and
(v) following payment in full of the Class A-1 Notes,
the Class B Percentage of the Principal Distribution Amount in
reduction of principal to the Class B Noteholders until the Class
B Notes are paid in full.
(c) The principal amount of the Class A-1 Notes, to the
extent not previously paid, will be due on the Class A-1 Stated Maturity
Date, the principal amount of the Class A-2 Notes, to the extent not
previously paid, will be due on the Class A-2 Stated Maturity Date, the
principal amount of the Class A-3 Notes, to the extent not previously paid,
will be due on the Class A-3 Stated Maturity Date, the principal amount of
the Class A-4 Notes, to the extent not previously paid, will be due on the
Class A-4 Stated Maturity Date and the principal amount of the Class B
Notes, to the extent not previously paid, will be due on the Class B Stated
Maturity Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall accrue interest at
the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4
Rate and the Class B Rate, respectively, and such interest shall be due and
payable on each Payment Date. Interest on the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes shall be calculated on
the basis of the actual days elapsed and a 360-day year. Interest on the
Class B Notes shall be calculated on the basis of a 360-day year of twelve
30-day months. Subject to Section 3.1, any installment of interest or
principal, if any, payable on any Note that is punctually paid or duly
provided for by the Issuer on the applicable Payment Date shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class postage prepaid to
such Person's address as it appears on the Note Register on such Record
Date; provided that, unless Definitive Notes have been issued pursuant to
Section 2.13, with respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee, and except for the final
installment of principal payable with respect to such Note on a Payment Date
or on the related Stated Maturity Date (and except for the Redemption Price
for any Note called for redemption), which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall
be held in accordance with Section 3.3. The Issuer shall pay all Accrued
Note Interest, including Interest Carryover Shortfalls, to the Persons who
are Noteholders on the Record Date for a particular Payment Date even if a
portion of such Accrued Note Interest relates to a different Payment Date.
(e) All principal payments on a Class of Notes shall be made
pro rata to the Noteholders entitled thereto. The Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such Note
shall be paid. Such notice shall be mailed or transmitted by facsimile prior
to such final Payment Date and shall specify that such final installment
shall be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemption of Notes
shall be mailed to Noteholders as provided in Section 10.2.
(f) Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously
paid, on the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee or the Holders of Notes representing
not less than a majority of the principal amount of the Notes Outstanding
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2. On each Payment Date following acceleration of the
Notes, all amounts on deposit in the Note Payment Account shall be paid in
the following order of priority.
(i) first, to the Indenture Trustee for amounts due
under Section 6.7 and to the Owner Trustee for amounts due under
Sections 8.1 and 8.2 of the Trust Agreement;
(ii) second, to the Servicer for amounts due and unpaid
in respect of Total Servicing Fees;
(iii) third, to the Swap Counterparties, the amount of
the Net Swap Payments then due under the Interest Rate Swap
Agreements (exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in
accordance with the outstanding principal amount of the Class A
Notes and the amount of any Class A Swap Termination Payments due
and payable by the Issuer to the Swap Counterparties in respect of
the Class A Interest Rate Swaps, (1) to Noteholders of the Class A
Notes, the Accrued Note Interest ratably in proportion to Accrued
Note Interest for each Class of the Class A Notes, without
preference or priority of any kind, according to the amounts due
and payable on the Class A Notes for interest, and (2) to the Swap
Counterparties, any Class A Swap Termination Payments;
(v) fifth, to the Swap Counterparties for any remaining
Class A Swap Termination Payments pro rata based on the amount of
their respective Class A Swap Termination Payments;
(vi) sixth, to the Class A-1 Noteholders, the
outstanding principal amount of the Class A-1 Notes as of such
Payment Date (prior to giving effect to any payment of principal
on such date) in reduction of principal until the principal amount
of the Class A-1 Notes has been paid in full;
(vii) seventh, to the Class A-2 Noteholders, the Class
A-3 Noteholders and the Class A-4 Noteholders, the outstanding
principal amount of the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes, respectively, pro rata in proportion to the
respective principal balances of each of such Classes as of such
Payment Date (prior to giving effect to any payment of principal
on such date) in reduction of principal until the principal amount
of each of such Classes has been paid in full;
(viii) eighth, with the same priority and ratably, in
accordance with the outstanding principal balance of the Class B
Notes and the amount of any Class B Swap Termination Payments due
and payable by the Issuer to the Swap Counterparties in respect of
the Class B Interest Rate Swap, (1) to the Class B Noteholders,
Accrued Note Interest and (2) to the Swap Counterparties, any
Class B Swap Termination Payments;
(ix) ninth, to the Swap Counterparty for any remaining
Class B Swap Termination Payments;
(x) tenth, to the Class B Noteholders, the outstanding
principal amount of the Class B Notes as of such Payment Date
(prior to giving effect to any payment of principal on such date)
in reduction of principal until the principal amount of the Class
B Notes has been paid in full; and
(xi) eleventh, to the Certificateholders.
SECTION 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to
any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuer
may at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this
Section 2.9, except as expressly permitted by this Indenture. All cancelled
Notes may be held or disposed of by the Indenture Trustee in accordance with
its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be destroyed or
returned to it, provided, that such Issuer Order is timely and the Notes
have not been previously disposed of by the Indenture Trustee.
SECTION 2.10 Release of Collateral. Subject to Section 11.1
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of (i) an Issuer
Request accompanied by an Officer's Certificate and an Opinion of Counsel,
in each case stating that all conditions precedent, if any, provided for in
this Indenture relating to the release of the property from the lien of this
Indenture have been complied with, provided that counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action and (ii) Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying the Owner
Trustee's obligations under TIA Sections 314(c) and 314(d)(1), the Indenture
Trustee shall release property from the lien of this Indenture in accordance
with the conditions and procedures set forth in such exemptive order.
SECTION 2.11 Book-Entry Notes. The Notes, upon original
issuance, shall be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to the Indenture Trustee as custodian for
The Depository Trust Company, the initial Clearing Agency, by, or on behalf
of, the Issuer. The Book-Entry Notes shall be registered initially on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner thereof shall receive a definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.13. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.13:
(i) the provisions of this Section 2.11 shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee shall
be entitled to deal with the Clearing Agency for all purposes of
this Indenture (including the payment of principal of and interest
on the Notes and the giving of instructions or directions
hereunder) as the sole Holder of the Notes, and shall have no
obligation to the Note Owners;
(iii) to the extent that the provisions of this Section
2.11 conflict with any other provisions of this Indenture, the
provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants pursuant
to the Note Depository Agreement; unless and until Definitive
Notes are issued pursuant to Section 2.13, the initial Clearing
Agency shall make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Holders of
Notes evidencing a specified percentage of the principal amount of
the Notes or any Class of Notes Outstanding, the Clearing Agency
shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Note Owners
and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest
in the Notes or such Class of Notes and has delivered such
instructions to the Indenture Trustee.
SECTION 2.12 Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes shall have been issued to such Note Owners
pursuant to Section 2.13, the Indenture Trustee shall give all such notices
and communications specified herein to be given to Holders of the Notes to
the Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.13 Definitive Notes. If (i) the Issuer, the
Administrator or the Servicer advises the Indenture Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book-Entry Notes and the Indenture
Trustee or the Administrator is unable to locate a qualified successor, (ii)
the Administrator, at its option, advises the Indenture Trustee in writing
that it elects to terminate the book-entry system through the Clearing
Agency or (iii) after the occurrence of an Event of Default or an Event of
Servicing Termination, Note Owners of the Book-Entry Notes representing
beneficial interests aggregating not less than 51% of the principal amount
of such Notes advise the Indenture Trustee and the Clearing Agency in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of such Note Owners, then the
Clearing Agency shall notify all Note Owners and the Indenture Trustee of
the occurrence of such event and of the availability of Definitive Notes to
Note Owners requesting the same. Upon surrender to the Indenture Trustee of
the typewritten Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, the Issuer shall execute
and the Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer,
the Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Any portion of a Book-Entry Note
transferred or exchanged pursuant to this Section 2.13 shall be executed,
authenticated and delivered only in the minimum denominations and integral
multiples set forth in Section 2.2(d). Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive
Notes as Noteholders.
SECTION 2.14 Authenticating Agents. The Indenture Trustee may
appoint one or more Persons (each, an "Authenticating Agent") with power to
act on its behalf and subject to its direction in the authentication of
Notes in connection with issuance, transfers and exchanges under Sections
2.2, 2.3, 2.5 and 2.6, as fully to all intents and purposes as though each
such Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
2.14 shall be deemed to be the authentication of Notes "by the Indenture
Trustee."
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder,
without the execution or filing of any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Owner
Trustee. The Indenture Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Owner Trustee. Upon receiving such notice of
resignation or upon such a termination, the Indenture Trustee may appoint a
successor Authenticating Agent and shall give written notice of any such
appointment to the Owner Trustee.
The Administrator agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services. The provisions
of Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant. The Issuer shall duly and
punctually pay the principal of and interest on, if any, the Notes in
accordance with the terms of the Notes and this Indenture. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the
Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such
office or agency. If, at any time, the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with
the address thereof, such surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.3 Money for Payments To Be Held in Trust. (a) As
provided in Section 8.2, all payments of amounts due and payable with
respect to any Notes that are to be made from amounts withdrawn from the
Collection Account, the Pre-Funding Account, the Reserve Account, the
Negative Carry Account, the Yield Supplement Account and the Note Payment
Account shall be made on behalf of the Issuer by the Indenture Trustee or by
another Paying Agent, and no amounts so withdrawn from the Collection
Account, the Pre-Funding Account, the Reserve Account, the Negative Carry
Account, the Yield Supplement Account and the Note Payment Account for
payments of Notes shall be paid over to the Issuer, except as provided in
this Section 3.3.
(b) On or before each Payment Date and Redemption Date, the
Issuer shall deposit or cause to be deposited in the Note Payment Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Notes and under the Interest Rate Swap Agreements, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code and any
state or local tax law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding
taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order
direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which the sums were held by such Paying
Agent; and upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
(d) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two (2) years after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof (but only to
the extent of the amounts so paid to the Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense
and direction of the Issuer, any other reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such
repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect
its existence, rights and franchises as a business trust under the laws of
the State of Delaware (unless it becomes, or any successor Issuer hereunder
is or becomes, organized under the laws of any other State or of the United
States of America, in which case the Issuer shall keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction)
and shall obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Indenture, the Notes, the Collateral
and each other instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer shall from
time to time execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee, the Swap Counterparties and
the Noteholders in such Trust Estate against the claims of all
Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel substantially in the form attached hereto as Exhibit C.
(b) On or before March 31, in each calendar year, beginning
in 2002, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling
of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain
the lien and security interest created by this Indenture and reciting the
details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain such lien and security interest. Such
Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that shall, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until March 31 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of
Receivables. (a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others that would release
any Person from any of such Person's material covenants or obligations under
any instrument or agreement included in the Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as expressly provided in this Indenture and
the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the Administrator
to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of
its obligations and agreements contained in this Indenture, the Basic
Documents and in the instruments and agreements included in the Trust
Estate, including, but not limited to, filing or causing to be filed all
financing statements and continuation statements required to be filed under
the Relevant UCC by the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods provided for herein
and therein. Except as otherwise expressly provided therein, the Issuer
shall not waive, amend, modify, supplement or terminate any Basic Document
or any provision thereof without the consent of the Indenture Trustee or the
Holders of at least a majority of the principal amount of the Notes
Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of
an Event of Servicing Termination under the Sale and Servicing Agreement,
the Issuer shall promptly notify the Indenture Trustee and the Rating
Agencies thereof and shall specify in such notice the action, if any, the
Issuer is taking in respect of such default. If an Event of Servicing
Termination shall arise from the failure of the Servicer to perform any of
its duties or obligations under the Sale and Servicing Agreement with
respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall (subject
to the rights of the Indenture Trustee to direct such appointment pursuant
to Section 8.2 of the Sale and Servicing Agreement) appoint a successor
servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been
appointed or has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Indenture Trustee, without further action,
shall automatically be appointed the Successor Servicer. The Indenture
Trustee may resign as the Servicer by giving written notice of such
resignation to the Issuer and in such event shall be released from such
duties and obligations, such release not to be effective until the date a
new servicer enters into a servicing agreement with the Issuer as provided
below. Upon delivery of any such notice to the Issuer, the Issuer shall
obtain a new servicer as the Successor Servicer under the Sale and Servicing
Agreement. Any Successor Servicer (other than the Indenture Trustee) shall
(i) be an established financial institution having a net worth of not less
than $50,000,000 and whose regular business includes the servicing of
automotive installment sale contracts and (ii) enter into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to the Servicer.
If, within thirty (30) days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a new servicer, the Indenture
Trustee may appoint, or may petition a court of competent jurisdiction to
appoint, a Successor Servicer. In connection with any such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree, subject to the limitations
set forth below and in the Sale and Servicing Agreement, and in accordance
with Section 8.2 of the Sale and Servicing Agreement, the Issuer shall enter
into an agreement with such successor for the servicing of the Receivables
(such agreement to be in form and substance satisfactory to the Indenture
Trustee). If the Indenture Trustee shall succeed to the Servicer's duties as
servicer of the Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to
the Indenture Trustee in its duties as the successor to the Servicer and the
servicing of the Receivables. If the Indenture Trustee shall become
successor to the Servicer under the Sale and Servicing Agreement, the
Indenture Trustee shall be entitled to appoint as Servicer any one of its
Affiliates; provided that the Indenture Trustee, in its capacity as the
Servicer, shall be fully liable for the actions and omissions of such
Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed
by the Issuer, the Issuer shall notify the Indenture Trustee of such
appointment, specifying in such notice the name and address of such
Successor Servicer.
(g) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer hereby agrees that it
shall not, without the prior written consent of the Indenture Trustee or the
Holders of at least a majority in principal amount of the Notes Outstanding,
amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral (except to the extent otherwise provided in the
Sale and Servicing Agreement or the Basic Documents).
SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the
Trust Agreement, the Purchase Agreement or the Sale and Servicing
Agreement, sell, transfer, exchange or otherwise dispose of any of
the properties or assets of the Issuer, including those included
in the Trust Estate, unless directed to do so by the Indenture
Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or
assessed upon the Issuer;
(iii) consolidate or merge with or into any other Person
(iv) dissolve or liquidate in whole or in part;
(v) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to
be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except
as may be expressly permitted hereby, (B) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend
to or otherwise arise upon or burden the assets of the Issuer or
any part thereof or any interest therein or the proceeds thereof
or (C) permit the lien of this Indenture not to constitute a valid
first priority (other than with respect to any such tax,
mechanics' or other lien) security interest in the Trust Estate;
or
(vi) engage in any activity which is inconsistent with
the treatment of the Issuer as a "Qualifying Special Purpose
Entity" as such term is used in SFAS 140 and any successor rule
thereto.
SECTION 3.9 Annual Statement as to Compliance. The Issuer
shall deliver to the Indenture Trustee, on or before March 31 of each year
(commencing with the year 2002), an Officer's Certificate stating, as to the
Responsible Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year (or such shorter period, with respect to the first such
Officer's Certificate) and of its performance under this Indenture
has been made under such Responsible Officer's supervision; and
(ii) to the best of such Responsible Officer's
knowledge, based on such review, the Issuer has complied with all
conditions and covenants under this Indenture throughout such year
(or such shorter period, with respect to the first such Officer's
Certificate), or, if there has been a default in its compliance
with any such condition or covenant, specifying each such default
known to such Responsible Officer and the nature and status
thereof.
SECTION 3.10 Consolidation, Merger, etc., of the Issuer;
Disposition of Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into
any other Person.
(b) Except as otherwise expressly permitted by this Indenture
or the other Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any material portion of the properties and
assets included in the Trust Estate to any Person.
SECTION 3.11 No Other Business. The Issuer shall not engage
in any business other than financing, acquiring, owning and pledging the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents and activities incidental thereto.
SECTION 3.12 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes.
SECTION 3.13 Servicer's Obligations. The Issuer shall cause
the Servicer to comply with the Sale and Servicing Agreement, including
Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII
thereof.
SECTION 3.14 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture and the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person.
SECTION 3.15 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.16 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 3.17 Restricted Payments. The Issuer shall not,
directly or indirectly, (i) make any distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest
or security or (iii) set aside or otherwise segregate any amounts for any
such purpose; provided, however, that the Issuer may make, or cause to be
made, (x) payments to the Servicer, the Owner Trustee, the Swap
Counterparties and the Certificateholders as contemplated by, and to the
extent funds are available for such purpose under, the Sale and Servicing
Agreement or the Trust Agreement and (y) payments to the Indenture Trustee
pursuant to Section 1(a)(ii) of the Administration Agreement. The Issuer
shall not, directly or indirectly, make payments to or distributions from
the Collection Account except in accordance with this Indenture and the
other Basic Documents.
SECTION 3.18 Notice of Events of Default. The Issuer shall
give the Indenture Trustee, the Swap Counterparty and the Rating Agencies
prompt written notice of each Event of Default hereunder and of each default
on the part of any party to the Sale and Servicing Agreement, the Purchase
Agreement, or the Interest Rate Swap Agreements with respect to any of the
provisions thereof.
SECTION 3.19 Removal of Administrator. For so long as any
Notes are Outstanding, the Issuer shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection therewith.
SECTION 3.20 Calculation Agent. (a) The Issuer agrees that
for so long as any of the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes
or Class B Notes are Outstanding there shall at all times be an agent
appointed to calculate LIBOR in respect of each Interest Accrual Period (the
"Calculation Agent"). The Issuer hereby appoints The Chase Manhattan Bank as
Calculation Agent for purposes of determining LIBOR for each Interest
Accrual Period and The Chase Manhattan Bank hereby accepts such appointment.
The Calculation Agent may be removed by the Issuer at any time. If the
Calculation Agent is unable or unwilling to act as such or is removed by the
Issuer, the Issuer shall promptly appoint as a replacement Calculation Agent
a leading bank which is engaged in transactions in Eurodollar deposits in
the international Eurodollar market and which does not control or is not
controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been
duly appointed.
(b) The Calculation Agent shall be required to calculate on
each LIBOR Determination Date the interest rate for the Outstanding Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes for the
related Interest Accrual Period (in each case, at a rate per annum rounded,
if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward) and the amount of
interest payable (rounded to the nearest cent, with half a cent being
rounded upwards) on the related Payment Date. The determination of such
interest rates by the Calculation Agent shall (in the absence of manifest
error) be final and binding upon all parties.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect with
respect to the Notes except as to (i) rights of registration of transfer and
exchange, (ii) substitution of mutilated, destroyed, lost or stolen Notes,
(iii) rights of Noteholders to receive payments of principal thereof and
interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.11 and 3.12 hereof,
(v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7
and the obligations of the Indenture Trustee under Section 4.3), and (vi)
the rights of Noteholders and Swap Counterparties as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable
to all or any of them, and the Indenture Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
either:
(A) all Notes of all Classes theretofore authenticated
and delivered (other than (i) Notes that have been destroyed, lost
or stolen and that have been replaced or paid as provided in
Section 2.6 and (ii) Notes for whose payment money has theretofore
been irrevocably deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(B) each of the following:
(1) all Notes not theretofore delivered to the
Indenture Trustee for cancellation have become
due and payable and the Issuer has irrevocably
deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the
United States of America (which will mature
prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient
to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to
the applicable Stated Maturity Date or
Redemption Date (if Notes shall have been called
for redemption pursuant to Section 10.1(a)), as
the case may be;
(2) the Issuer has paid or caused to be paid all
other sums payable by the Issuer hereunder and
under the other Basic Documents;
(3) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate
from a firm of certified public accountants,
each meeting the applicable requirements of
Section 11.1(a) and, subject to Section 11.2,
each stating that all conditions precedent
herein provided for relating to the satisfaction
and discharge of this Indenture have been
complied with;
(4) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that
the satisfaction and discharge of the Notes
pursuant to this Section 4.1 will not cause any
Noteholder to be treated as having sold or
exchanged any of its Notes for purposes of
Section 1001 of the Code; and
(5) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate stating that
the satisfaction and discharge of this Indenture
(i) is not inconsistent with the derecognition
by MMCA of the Receivables under GAAP and (ii)
will not cause the Issuer to become part of
MMCA's consolidated group under GAAP.
(b) Notwithstanding anything to the contrary herein or in any
other Basic Document, the Issuer shall not cause or permit the Notes to be
prepaid except as set forth in Section 10.1.
SECTION 4.2 Satisfaction and Discharge of the Notes.
(a) Upon satisfaction of the conditions set forth in
subsection (b) below, the Issuer shall be deemed to have paid and discharged
the entire indebtedness on all the Notes Outstanding, and the provisions of
this Indenture, as it relates to such Notes, shall no longer be in effect
(and the Indenture Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from the
trust funds described in subsection (b)(i) hereof, payment of the
principal of and interest on the Notes Outstanding at maturity of
such principal or interest;
(ii) the obligations of the Issuer with respect to the
Notes under Sections 2.5, 2.6, 3.2 and 3.3 hereof;
(iii) the obligations of the Issuer to the Indenture
Trustee under Section 6.7 hereof; and
(iv) the rights, powers, trusts and immunities of the
Indenture Trustee hereunder and the duties of the Indenture
Trustee hereunder.
(b) The satisfaction and discharge of the Notes pursuant to
subsection (a) of this Section 4.2 is subject to the satisfaction of all of
the following conditions:
(i) the Issuer has deposited or caused to be deposited
irrevocably (except as provided in Section 4.4 hereof) with the
Indenture Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Notes, which, through the payment of interest and principal
in respect thereof in accordance with their terms will provide,
not later than one day prior to the due date of any payment
referred to below, money in an amount sufficient, in the opinion
of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Indenture Trustee, to pay and discharge the entire
indebtedness on the Notes Outstanding, for principal thereof and
interest thereon to the date of such deposit (in the case of Notes
that have become due and payable) or to the maturity of such
principal and interest, as the case may be, and to pay any amounts
then due and payable to the Swap Counterparties;
(ii) such deposit will not result in a breach or
violation of, or constitute an event of default under, any other
agreement or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit
or on the ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture Trustee
an Opinion of Counsel to the effect that the satisfaction and
discharge of the Notes pursuant to this Section 4.2 will not cause
any Noteholder to be treated as having sold or exchanged any of
its Notes for purposes of Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the satisfaction and
discharge of the Notes contemplated by this Section 4.2 have been
complied with.
(c) Notwithstanding anything to the contrary herein or in any
other Basic Document, the Issuer shall not cause or permit the Notes to be
prepaid except as set forth in Section 10.1.
SECTION 4.3 Application of Trust Money. All monies deposited
with the Indenture Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as
the Indenture Trustee may determine, to the Holders of the particular Notes
for the payment or redemption of which such monies have been deposited with
the Indenture Trustee, of all sums due and to become due thereon for
principal and interest, and for payment to the Swap Counterparties of all
sums, if any, due or to become due to the Swap Counterparties under and in
accordance with this Indenture and the Interest Rate Swap Agreements, but
such monies need not be segregated from other funds except to the extent
required herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.4 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to the Notes, all monies then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect to
such Notes shall, upon demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to
such monies.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever
used herein, means the occurrence of any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) default in the payment of any interest on any Note
when the same becomes due and payable, and such default shall
continue for a period of five (5) days or more; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due
and payable, including with respect to each Class of Notes, the
Stated Maturity Date for such Class; or
(iii) default in the observance or performance of any
material covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section
5.1 specifically dealt with), or any representation or warranty of
the Issuer made in this Indenture or in any certificate or other
writing delivered pursuant hereto or in connection herewith
proving to have been incorrect in any material respect as of the
time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of
sixty (60) days or in the case of a materially incorrect
representation and warranty thirty (30) days, after there shall
have been given, by registered or certified mail, to the Issuer by
the Indenture Trustee or to the Issuer and the Indenture Trustee
by the Holders of not less than 25% of the principal amount of the
Notes Outstanding, a written notice specifying such default or
incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a notice of Default
hereunder; or
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Trust Estate in an involuntary case
under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed
and in effect for a period of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by
the Issuer to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts
as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default which with the giving of notice and the lapse of
time would become an Event of Default under clause (iii), its status and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default should occur and be continuing, then
and in every such case the Indenture Trustee or the Holders of Notes
representing not less than a majority of the principal amount of the Notes
Outstanding, voting as a group, may declare all the Notes to be immediately
due and payable, by a notice in writing to the Issuer (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable. If an Event of Default specified in Section 5.1(iv) or (v) occurs,
all unpaid principal, together with all accrued and unpaid interest thereon,
of all the Notes, and all other amounts payable hereunder, shall
automatically become due and payable without any declaration or other act on
the part of the Indenture Trustee or any Holder of the Notes. In the event
of such declaration or automatic acceleration, the Indenture Trustee shall
give prompt written notice to the Swap Counterparties.
(b) At any time after a declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the
amount due has been obtained by the Indenture Trustee as hereinafter
provided in this Article V, the Holders of Notes representing a majority of
the principal amount of the Notes Outstanding, voting as a group, by written
notice to the Issuer and the Indenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes or under the Interest Rate Swap
Agreements if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel and other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Issuer covenants that if (i) there
is a default in the payment of any interest on any Note when the same
becomes due and payable, and such default continues for a period of five (5)
days, or (ii) there is a default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, the Issuer shall, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Holders of the Notes, the whole
amount then due and payable on the Notes for principal and interest, with
interest upon the overdue principal at the applicable Note Interest Rate
and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest at the applicable Note
Interest Rate and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel and other amounts due and owing
to the Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection
of the sums so due and unpaid, and may prosecute such Proceeding to judgment
or final decree, and may enforce the same against the Issuer or other
obligor upon the Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Notes, wherever situated,
the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders and the Swap Counterparties, by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right
vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or
its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor upon
the Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Indenture Trustee shall have
made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of
the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and all other
amounts due and owing to the Indenture Trustee pursuant to Section
6.7), of the Swap Counterparties and of the Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes and the
Swap Counterparties in any election of a trustee, a standby
trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to pay all
amounts received with respect to the claims of the Noteholders,
the Swap Counterparties and of the Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee, the Swap Counterparties or the
Holders of Notes allowed in any judicial proceedings relative to
the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to
make payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due and owing to the Indenture Trustee
pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder or of any Swap Counterparty any plan of
reorganization, arrangement, adjustment or composition affecting the Notes
or the Interest Rate Swap Agreements or the rights of any Noteholder or Swap
Counterparty to authorize the Indenture Trustee to vote in respect of the
claim of any Noteholder or Swap Counterparty in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes and the Swap Counterparties.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default
shall have occurred and be continuing, the Indenture Trustee may, but shall
not be obligated to, do one or more of the following (subject to Section
5.5):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts then payable
on the Notes or under this Indenture with respect thereto, whether
by declaration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such Notes the
amounts then payable and adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to
the Trust Estate;
(iii) exercise any remedies of a secured party under the
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Noteholders and Swap Counterparties; and
(iv) sell or liquidate the Trust Estate or any portion
thereof or rights or interest therein at one or more public or
private sales called and conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or
otherwise liquidate the Trust Estate following an Event of
Default, other than an Event of Default described in Section
5.1(i) or (ii), unless (A) the Holders of 100% of the principal
amount of the Notes Outstanding, voting as a group, consent
thereto, (B) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the accrued
interest on the outstanding Notes and all payments due and payable
(including any Swap Termination Payments) pursuant to the Interest
Rate Swap Agreements, or (C) the Indenture Trustee determines that
the Trust Estate will not continue to provide sufficient funds for
the payment of principal of and interest on the Notes as they
would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Holders
of 66 2/3% of the principal amount of the Notes Outstanding,
voting as a group. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C) above, the
Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action
and as to the sufficiency of the Trust Estate for such purpose.
(b) Notwithstanding the foregoing, if an Event of Default
specified in Section 5.1(i) shall have occurred and be continuing and the
Notes shall have been accelerated under Section 5.2(a),
(i) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would be
sufficient to discharge in full the principal of and accrued
interest on the Notes and to make all payments (including any Swap
Termination Payments) pursuant to the Interest Rate Swap
Agreements, the Indenture Trustee shall sell or liquidate the
Trust Estate or any portion thereof or rights or interest therein
at one or more public or private sales called and conducted in any
manner permitted by law; or
(ii) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would not be
sufficient to discharge in full the principal of and accrued
interest on the Notes and to make all payments (including any Swap
Termination Payments) owing to the Swap Counterparty under the
Interest Rate Swap Agreements, the Indenture Trustee may sell or
liquidate the Trust Estate at one or more public or private sales
called and conducted in any manner permitted by law if the
Indenture Trustee obtains the consent of Holders of 66 2/3% of the
principal amount of the Notes Outstanding, voting as a group.
(c) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
order of priority set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section 5.4. At least
fifteen (15) days before such record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the record date,
the payment date and the amount to be paid.
SECTION 5.5 Optional Preservation of the Receivables. Subject
to Section 5.4(b), if the Notes have been declared to be due and payable
under Section 5.2 following an Event of Default, and such declaration and
its consequences have not been rescinded and annulled, the Indenture Trustee
may, but need not, elect to maintain possession of the Trust Estate and
apply proceeds as if there had been no declaration of acceleration;
provided, however, that Total Available Funds shall be applied in accordance
with such declaration of acceleration in the manner specified in Section
4.6(c) of the Sale and Servicing Agreement. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes and any amounts owing
to the Swap Counterparties, and the Indenture Trustee shall take such desire
into account when determining whether or not to maintain possession of the
Trust Estate. In determining whether to maintain possession of the Trust
Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount
of the Notes Outstanding have made written request to the Indenture Trustee
to institute such Proceeding in respect of such Event of Default in its own
name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to
institute such Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders
of a majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Notes or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the principal amount of the
Notes Outstanding, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute
and unconditional, to receive payment of the principal of and interest on,
if any, such Note on or after the respective due dates thereof expressed in
such Note or in this Indenture (or, in the case of redemption, on or after
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or Event
of Default or any acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a
majority of the principal amount of the Notes Outstanding shall have the
right to direct the time, method and place of conducting any Proceeding for
any remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided
that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust Estate
shall be by Holders of Notes representing not less than 100% of the
principal amount of the Notes Outstanding;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee by
Holders of Notes representing less than 100% of the principal amount of the
Notes Outstanding to sell or liquidate the Trust Estate shall be of no force
and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.1, the Indenture Trustee need not take any action that
it reasonably believes might involve it in costs, expenses and liabilities
for which it will not be adequately indemnified or might materially
adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12 Waiver of Past Default. Prior to the declaration
of the acceleration of the maturity of the Notes as provided in Section 5.2,
the Holders of Notes representing not less than a majority of the principal
amount of the Notes Outstanding, voting as a group, may waive any past
Default or Event of Default and its consequences except a Default or Event
of Default (a) in the payment of principal of or interest on any of the
Notes or (b) in respect of a covenant or provision hereof that cannot be
amended, supplemented or modified without the consent of the Holder of each
Note. In the case of any such waiver, the Issuer, the Indenture Trustee and
the Holders of the Notes shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto.
Upon any such waiver, such Default or Event of Default shall
cease to exist and be deemed to have been cured and not to have occurred,
and any Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorney's fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 5.13 shall not apply
to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted
by any Noteholder or group of Noteholders, in each case holding in the
aggregate more than 10% of the principal amount of the Notes Outstanding or
(c) any suit instituted by any Noteholder for the enforcement of the payment
of principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption,
on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall not at
any time insist upon, or plead or in any manner whatsoever, claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture, and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not hinder, delay or impede the execution
of any power herein granted to the Indenture Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not
be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the lien of this Indenture
nor any rights or remedies of the Indenture Trustee or the Noteholders shall
be impaired by the recovery of any judgment by the Indenture Trustee against
the Issuer or by the levy of any execution under such judgment upon any
portion of the Trust Estate or upon any of the assets of the Issuer. Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.4(c).
SECTION 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to
do so, and at the Administrator's expense, the Issuer shall take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Servicer, as applicable, of
each of their obligations to the Issuer under or in connection with the Sale
and Servicing Agreement or by the Seller of each of its obligations under or
in connection with the Purchase Agreement, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Sale and Servicing Agreement to the extent
and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the Servicer
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Seller or the Servicer of
each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting
as a group, shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Seller or the Servicer under or in
connection with the Sale and Servicing Agreement, or against the Seller
under or in connection with the Purchase Agreement, including the right or
power to take any action to compel or secure performance or observance by
the Seller or the Servicer, as the case may be, of each of their obligations
to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension, or waiver under the Sale and Servicing
Agreement or the Purchase Agreement, as the case may be, and any right of
the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee
to do so and at the Administrator's expense, the Issuer agrees to take all
such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by MMCA of each of its obligations to the
Seller under or in connection with the Purchase Agreement in accordance with
the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Purchase Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by MMCA of each of its
obligations under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be
in writing or by telephone (confirmed in writing promptly thereafter)) of
the Holders of 66 2/3% of the principal amount of the Notes Outstanding,
voting as a group, shall, exercise all rights, remedies, powers, privileges
and claims of the Seller against MMCA under or in connection with the
Purchase Agreement, including the right or power to take any action to
compel or secure performance or observance by MMCA of each of its
obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Purchase
Agreement, and any rights of the Seller to take such action shall be
suspended.
(e) Promptly following a request from the Indenture Trustee
to do so, and at the Administrator's expense, the Issuer shall take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparties in accordance with the
Interest Rate Swap Agreements and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in
connection with the Interest Rate Swap Agreements to the extent and in the
manner directed by the Indenture Trustee, including the transmission of
notices of default thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Swap
Counterparties of its obligations under the Interest Rate Swap Agreements.
(f) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Noteholders of Notes evidencing not less than 66 2/3% of the principal
amount of the Controlling Note Class shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Swap Counterparties
including the right or power to take any action to compel or secure
performance or observance by the Swap Counterparties of their obligations to
the Issuer under the Interest Rate Swap Agreements and to give any consent,
request, notice, direction, approval, extension, or waiver under the
Interest Rate Swap Agreements and any right of the Issuer to take such
action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read
into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Indenture Trustee
and, if required by the terms of this Indenture, conforming to the
requirements of this Indenture; however, the Indenture Trustee
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, negligent failure to act, willful misconduct
or bad faith, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to paragraphs (a), (b), (c), (e) and (g)
of this Section 6.1.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the
terms of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section 6.1 and to the
provisions of the TIA.
(i) The Indenture Trustee shall not be charged with knowledge
of any Event of Default unless either (1) a Responsible Officer shall have
actual knowledge of such Event of Default or (2) written notice of such
Event of Default shall have been given to the Indenture Trustee in
accordance with the provisions of this Indenture.
SECTION 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Indenture Trustee need
not investigate any fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel.
The Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on an Officer's Certificate or Opinion of
Counsel unless it is proved that the Indenture Trustee was negligent in such
reliance.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the
part of, or for the supervision of, any such agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized
or within its rights or powers; provided, however, that such action or
omission by the Indenture Trustee does not constitute willful misconduct,
negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document, but
the Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney.
SECTION 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent
hereunder may do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee (i) shall not be responsible for, and makes no representation, as to
the validity or adequacy of this Indenture or the Notes and (ii) shall not
be accountable for the Issuer's use of the proceeds from the Notes, or
responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes
other than the Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of such
Default within ninety (90) days after it occurs. Except in the case of a
Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the
notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by
the Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement
containing the information which is required to be expressed in the Payment
Date statements as a dollar amount per $1,000 of original denomination of
the Notes or Class of Notes, as applicable, aggregated for such calendar
year, for the purposes of such Noteholder's preparation of Federal income
tax returns.
SECTION 6.7 Compensation and Indemnity. (a) The Issuer shall,
or shall cause the Administrator to, pay to the Indenture Trustee from time
to time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall, or shall cause the Administrator to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall, or
shall cause the Administrator to, indemnify the Indenture Trustee against
any and all loss, liability or expense (including attorneys' fees) incurred
by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Administrator promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to,
defend any such claim, and the Indenture Trustee may have separate counsel
and the Issuer shall, or shall cause the Servicer to, pay the fees and
expenses of such counsel. Neither the Issuer nor the Administrator need
reimburse any expense or indemnity against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own
willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the resignation or removal of the
Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in
Section 5.1(iv) or (v) with respect to the Issuer, the expenses are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
SECTION 6.8 Replacement of Indenture Trustee. (a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.8.
The Indenture Trustee may resign at any time by so notifying the Issuer. The
Holders of a majority in principal amount of the Notes Outstanding, voting
as a group, may remove the Indenture Trustee without cause by so notifying
the Indenture Trustee and the Issuer and the Issuer may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable
of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer, and shall concurrently deliver a copy of such acceptance to each
Swap Counterparty. Thereupon, the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders. The retiring Indenture Trustee
shall promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
(c) If a successor Indenture Trustee does not take office
within sixty (60) days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, the Issuer or the Holders of a
majority in principal amount of the Notes Outstanding may petition any court
of competent jurisdiction to appoint a successor Indenture Trustee. If the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction to remove the Indenture Trustee
and to appoint a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's and the Administrator's
obligations under Section 6.7 shall continue for the benefit of the retiring
Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11.
The Indenture Trustee shall provide the Rating Agencies with prior written
notice of any such transaction.
(b) If at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated, and if at that time any of the Notes
shall not have been authenticated, any successor to the Indenture Trustee
may authenticate such Notes either in the name of any predecessor hereunder
or in the name of the successor to the Indenture Trustee. In all such cases
such certificates shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of the Indenture
Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Indenture Trustee shall have the power and may execute and
deliver an instrument to appoint one or more Persons to act as a co-trustee
or co-trustees, or separate trustee or separate trustees, of all or any part
of the Trust Estate, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders and the Swap Counterparties, such
title to the Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall
be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee
and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee shall not be
authorized to act separately without the Indenture Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time remove or
accept the resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article VI. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as may
be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee as its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Agreement on its behalf and in its name. If
any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
SECTION 6.11 Eligibility; Disqualification. (a) The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a).
The Indenture Trustee or its parent shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition and shall have a long-term debt rating of
investment grade by each of the Rating Agencies or shall otherwise be
acceptable to each of the Rating Agencies. The Indenture Trustee shall
comply with TIA Section 310(b).
(b) Within ninety (90) days after ascertaining the occurrence
of an Event of Default which shall not have been cured or waived, unless
authorized by the Commission, the Indenture Trustee shall resign with
respect to the Class A Notes and/or the Class B Notes in accordance with
Section 6.8 of this Indenture, and the Issuer shall appoint a successor
Indenture Trustee for one or both of such Classes, as applicable, so that
there will be separate Indenture Trustees for the Class A Notes and the
Class B Notes. In the event the Indenture Trustee fails to comply with the
terms of the preceding sentence, the Indenture Trustee shall comply with
clauses (ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section
6.11 of a successor Indenture Trustee with respect to any Class of Notes,
the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee with respect to such Class of Notes shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee shall
accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, the
successor Indenture Trustee all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of the Class to which
the appointment of such successor Indenture Trustee relates, (ii) if the
retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each Class as to
which the retiring Indenture Trustee is not retiring shall continue to be
vested in the Indenture Trustee and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Indenture Trustees co-trustees
of the same trust and that each such Indenture Trustee shall be a trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Indenture Trustee; and upon the
removal of the retiring Indenture Trustee shall become effective to the
extent provided herein.
SECTION 6.12 Preferential Collection of Claims Against
Issuer. The Indenture Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). An
Indenture Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act
Licenses. The Indenture Trustee shall use its best efforts to maintain the
effectiveness of all licenses required under the Pennsylvania Motor Vehicle
Sales Finance Act in connection with this Indenture and the transactions
contemplated hereby until the lien and security interest of this Indenture
shall no longer be in effect in accordance with the terms hereof.
SECTION 6.14 Interest Rate Swap Provisions. (a) The Issuer
has entered into the Interest Rate Swap Agreements, each in a form
satisfactory to the Rating Agencies, to hedge the floating rate interest
expense on the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes. The Issuer may, from time to time, enter into one or more replacement
Interest Rate Swap Agreements with one or more replacement Swap
Counterparties in the event that any Interest Rate Swap Agreement is
terminated prior to its scheduled expiration pursuant to an Event of Default
or Termination Event (each such term as defined in the Interest Rate Swap
Agreements). The notional amounts of the Interest Rate Swaps will be
determined as follows:
(i) The notional amount of the Class A-2 Interest Rate
Swap hedging the interest expense on the Class A-2 Notes will be
initially equal to the principal amount of the Class A-2 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-2 Notes.
(ii) The notional amount of the Class A-3 Interest Rate
Swap hedging the interest expense on the Class A-3 Notes will be
initially equal to the principal amount of the Class A-3 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-3 Notes.
(iii) The notional amount of the Class A-4 Interest Rate
Swap hedging the interest expense on the Class A-4 Notes will be
initially equal to the principal amount of the Class A-4 Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class A-4 Notes.
(iv) The notional amount of the Class B Interest Rate
Swap hedging the interest expense on the Class B Notes will be
initially equal to the principal amount of the Class B Notes on
the Closing Date and will be reduced by the amount of any
principal payments on the Class B Notes.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swaps will rank senior
to interest payments on the Class A Notes, Class A Swap Termination Payments
will rank pari passu with interest payments on the Class A Notes and Class B
Swap Termination Payments will rank pari passu with interest payments on the
Class B Notes, all as set forth in Section 8.2 hereof and Section 4.6 of the
Sale and Servicing Agreement.
(c) The Indenture Trustee will be responsible for remitting
Net Swap Payments and any Swap Termination Payments payable to each Swap
Counterparty and for collecting the Net Swap Receipts and any Swap
Termination Payments payable to the Issuer, as applicable, on each Payment
Date.
(d) In the event that a Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of
the applicable Interest Rate Swap Agreement, the Indenture Trustee, upon
written request of the Administrator, shall establish individual collateral
accounts and will hold any securities deposited therein in trust and will
invest any cash amounts in accordance with the provisions of such Interest
Rate Swap Agreement.
(e) The Administrator shall calculate and provide written
notification to the related Swap Counterparty and to the Indenture Trustee
of the notional amount of each Interest Rate Swap as of each Payment Date on
or before the twelfth day of the month of the related Payment Date. The
Administrator shall also obtain the calculation of LIBOR from the
Calculation Agent under this Agreement and shall calculate the amount, for
each Payment Date, of all Net Swap Payments, Net Swap Receipts, and Swap
Termination Payments payable on each Payment Date and shall provide written
notification of such amounts to the related Swap Counterparties and to the
Indenture Trustee prior to such Payment Date. At least five days before the
effective date of any proposed amendment or supplement to an Interest Rate
Swap Agreement, the Administrator shall provide the Rating Agencies with a
copy of such amendment or supplement. Unless the amendment or supplement
clarifies any term or provision, corrects any inconsistency, cures any
ambiguity, or corrects any typographical error in such Interest Rate Swap
Agreement, an amendment or supplement to such Interest Rate Swap Agreement
will be effective only after satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of any Interest
Rate Swap Agreement due to an Event of Default or Termination Event (as each
such term is defined in such Interest Rate Swap Agreement), the Issuer will
use reasonable efforts to enter into a replacement interest rate swap
agreement on terms similar to those of such Interest Rate Swap Agreement
with an eligible swap counterparty unless the Indenture Trustee sells the
Indenture Trust Estate pursuant to Section 5.4(a)(iv). The Issuer shall take
action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparties of their obligations
under the Interest Rate Swap Agreements, as provided in Section 5.16(e) and
5.16(f).
(g) Each Interest Rate Swap Agreement shall provide that a
termination event will occur thereunder if:
(i) the long-term rating of The Chase Manhattan Bank is
suspended, withdrawn or downgraded below a rating of "A2" by
Xxxxx'x and, within 30 days of such suspension, withdrawal or
downgrade the Swap Counterparty fails to (i) deliver or post
collateral reasonably acceptable to the Issuer and acceptable to
Xxxxx'x in amounts sufficient or in accordance with the standards
of Xxxxx'x (as such standards may be modified while any
transaction is still outstanding) to secure its obligations under
the interest rate swap agreement, (ii) assign its rights and
obligations under the interest rate swap agreement to a
replacement counterparty reasonably acceptable to the Issuer and
to Xxxxx'x or (iii) establish other arrangements necessary, if
any, (including, without limitation, causing an entity with
ratings such that if the Swap Counterparty or its credit support
provider had such ratings, the suspension, withdrawal or downgrade
would not have occurred, to guarantee or provide an indemnity in
respect of the Swap Counterparty's or its credit support
provider's obligations under the interest rate swap agreement in
form and substance reasonably satisfactory to Xxxxx'x) in each
case so that Xxxxx'x confirms the ratings of the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class B Notes
that were in effect immediately prior to such suspension,
withdrawal or downgrade;
(ii) the short-term rating of The Chase Manhattan Bank
is suspended, withdrawn or downgraded below a rating of "A-1" by
S&P and, within 30 days of such suspension, withdrawal or
downgrade the Swap Counterparty fails to (i) assign its rights and
obligations under the interest rate swap agreement to a
replacement counterparty reasonably acceptable to the Issuer and
to S&P or (ii) establish other arrangements necessary, if any,
(including, without limitation, causing an entity with ratings
such that if the Swap Counterparty or its credit support provider
had such ratings, the suspension, withdrawal or downgrade would
not have occurred, to guarantee or provide an indemnity in respect
of the Swap Counterparty's or its credit support provider's
obligations under the interest rate swap agreement in form and
substance reasonably satisfactory to S&P) in each case so that S&P
confirms the ratings of the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes and the Class B Notes that were in effect
immediately prior to such suspension, withdrawal or downgrade; or
(iii) the long-term rating or the short-term rating of
The Chase Manhattan Bank is suspended, withdrawn or downgraded
below a rating of "A" or "F1," respectively, by Fitch and, within
30 days of such suspension, withdrawal or downgrade the Swap
Counterparty fails to (i) deliver or post collateral reasonably
acceptable to the Issuer and acceptable to Fitch in amounts
sufficient or in accordance with the standards of Fitch (as such
standards may be modified while any transaction is still
outstanding) to secure its obligations under the interest rate
swap agreement, (ii) assign its rights and obligations under the
interest rate swap agreement to a replacement counterparty
reasonably acceptable to the Issuer and to Fitch or (iii)
establish other arrangements necessary, if any, (including,
without limitation, causing an entity with ratings such that if
the Swap Counterparty or its credit support provider had such
ratings, the suspension, withdrawal or downgrade would not have
occurred, to guarantee or provide an indemnity in respect of the
Swap Counterparty's or its credit support provider's obligations
under the interest rate swap agreement in form and substance
reasonably satisfactory to Fitch) in each case so that Fitch
confirms the ratings of the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes and the Class B Notes that were in effect
immediately prior to such suspension, withdrawal or downgrade.
ARTICLE VII
NOTEHOLDERS' LISTS; REPORTING
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished
to the Indenture Trustee (a) not more than five (5) days after each Record
Date, a list, in such form as the Indenture Trustee may reasonably require,
of the names and addresses of the Holders of Notes as of such Record Date
and (b) at such other times as the Indenture Trustee may request in writing,
within thirty (30) days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than ten (10) days
prior to the time such list is furnished; provided, however, that so long as
(i) the Indenture Trustee is the Note Registrar or (ii) the Notes are issued
as Book-Entry Notes, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee
as provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section
312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15)
days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Issuer may be required to file
with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission
in accordance with the rules and regulations prescribed from time
to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.3(a) and by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year
of the Issuer shall correspond to the calendar year.
SECTION 7.4 Reporting and Notices by Indenture Trustee. (a)
If required by TIA Section 313(a), within sixty (60) days after each March
31, beginning with March 31, 2002, the Indenture Trustee shall mail to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and
each stock exchange, if any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are listed on any stock
exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all
money and other property payable to or receivable by the Indenture Trustee
pursuant to this Indenture and the Sale and Servicing Agreement. The
Indenture Trustee shall apply all such money received by it as provided in
this Indenture and the Sale and Servicing Agreement. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of
any payment or performance under any agreement or instrument that is part of
the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing
Date, the Issuer shall cause the Servicer to establish and maintain, in the
name of the Indenture Trustee, (i) for the benefit of the Noteholders and
the Certificateholders, each of the Trust Accounts other than the Negative
Carry Account and the Note Payment Account as provided in Sections 4.1, 4.7
and 5.1 of the Sale and Servicing Agreement and (ii) for the exclusive
benefit of the Noteholders, the Negative Carry Account and the Note Payment
Account as provided in Sections 4.1(c), 4.1(d) and 4.12 of the Sale and
Servicing Agreement.
(b) On or before each Payment Date, the Servicer shall
deposit in the Collection Account all amounts required to be deposited
therein with respect to the related Collection Period as provided in
Sections 4.2 and 4.4 of the Sale and Servicing Agreement. On or before each
Payment Date, all amounts required to be deposited in the Note Payment
Account with respect to the related Collection Period pursuant to Sections
4.6 and 4.7 of the Sale and Servicing Agreement shall be withdrawn by the
Indenture Trustee from the Collection Account and/or the Reserve Account and
deposited to the Note Payment Account for payment to Noteholders in
accordance with Section 2.8 on such Payment Date. The Indenture Trustee
shall direct the applicable Swap Counterparties to deposit, and shall
otherwise cause to be deposited on each Payment Date, any Net Swap Receipts
then due and payable in the Collection Account. In addition, the Indenture
Trustee shall direct the applicable Swap Counterparties to deposit, and
shall otherwise cause to be deposited, all Swap Termination Payments paid by
Swap Counterparties to the Trust into the Collection Account; provided,
that, upon direction of the Issuer, the Indenture Trustee may retain a part
or all of such Swap Termination Payments to be applied as an initial payment
to a replacement Swap Counterparty or Swap Counterparties, and provided
further that the Indenture Trustee shall promptly deposit any retained
amounts that are not so applied to the Collection Account.
SECTION 8.3 General Provisions Regarding Accounts. (a) So
long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Collection Account, the
Pre-Funding Account, the Payahead Account, the Reserve Account, the Negative
Carry Account and the Yield Supplement Account shall be invested by the
Indenture Trustee at the direction of the Servicer in Permitted Investments
as provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing
Agreement. All income or other gain (net of losses and investment expenses)
from investments of monies deposited in the Collection Account, the
Pre-Funding Account, the Payahead Account, the Reserve Account, the Negative
Carry Account and the Yield Supplement Account shall be withdrawn by the
Indenture Trustee from such accounts and distributed (but only under the
circumstances set forth in the Sale and Servicing Agreement in the case of
the Pre-Funding Account, the Reserve Account, the Negative Carry Account and
the Yield Supplement Account) as provided in Sections 4.1, 4.7 and 5.1 of
the Sale and Servicing Agreement. The Servicer shall not direct the
Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in any of the
Trust Accounts resulting from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture Trustee's failure
to make payments on such Permitted Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as trustee,
in accordance with their terms.
(c) If (i) the Servicer shall have failed to give investment
directions to the Indenture Trustee by 11:00 a.m., New York Time (or such
other time as may be agreed by the Issuer and Indenture Trustee), on the
Business Day preceding each Payment Date for any funds on deposit in the
Collection Account, the Pre-Funding Account, the Payahead Account, the
Reserve Account, the Negative Carry Account or the Yield Supplement Account,
(ii) to the knowledge of a Responsible Officer of the Indenture Trustee, a
Default or Event of Default shall have occurred and be continuing with
respect to the Notes but the Notes shall not have been declared due and
payable pursuant to Section 5.2 or (iii) the Notes shall have been declared
due and payable following an Event of Default and amounts collected or
receivable from the Trust Estate are being applied in accordance with
Section 5.4 as if there had not been such a declaration, then the Indenture
Trustee shall, to the fullest extent practicable, invest and reinvest funds
in such Trust Accounts in one or more Permitted Investments as set forth in
Schedule I hereto.
SECTION 8.4 Release of Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.7, the Indenture
Trustee may, and when required by the provisions of this Indenture shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section
6.7 have been paid in full and all amounts (including Swap Termination
Payments) owing under each Interest Rate Swap Agreement have been paid in
full, release any remaining portion of the Trust Estate that secured the
Issuer's obligations under the Notes and the Interest Rate Swap Agreements
from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.4(b) only upon receipt of (i) an Issuer Request
accompanied by confirmation that all amounts owing by the Issuer under each
Interest Rate Swap Agreement have been paid, an Officer's Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent, if
any, provided for in this Indenture relating to the release of the property
from the lien of this Indenture have been complied with, provided that
counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action and (ii) if required by the TIA, Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven (7) days notice when requested by the Issuer to take
any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, except
in connection with any action contemplated by Section 8.4(b), as a condition
to such action, an Opinion of Counsel, in form and substance satisfactory to
the Indenture Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all
conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for
the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee,
when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or
better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subjected to the lien of
this Indenture, or to subject to the lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the
Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture which
will not be inconsistent with other provisions of the Indenture;
provided that such action shall not materially adversely affect
the interests of the Noteholders or adversely affect the rights or
obligations of any Swap Counterparty under the related Interest
Rate Swap Agreement, or modify or impair the ability of the Issuer
to fully perform any of its obligations under any Interest Rate
Swap Agreement (and, so long as a copy of the proposed amendment
or supplement has been delivered to each of the parties listed in
Section 11.4(c) with respect to the Swap Counterparty and makes
clear that the Swap Counterparty has no longer than ten Business
Days to object to such amendment or supplement, the Swap
Counterparty's consent will be deemed to have been given if the
Swap Counterparty does not object in writing within ten Business
Days of receipt of a written request for such consent);
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture
such other provisions as may be expressly required by the TIA; or
(viii) to add, delete or modify any provisions necessary
or advisable to allow the Receivables to be derecognized by MMCA
under GAAP or to allow the Issuer to avoid becoming a member of
MMCA's consolidated group under GAAP;
provided, however, that (i) such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or of the Swap Counterparty, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action and (iii)
such action shall not, as evidenced by an Opinion of Counsel, cause the
Issuer to be characterized for Federal or any then Applicable Tax State
income tax purposes as an association taxable as a corporation or otherwise
have any material adverse impact on the Federal or any then Applicable Tax
State income taxation of any Notes Outstanding or outstanding Certificates
or any Noteholder or Certificateholder. The Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained;
(b) Notwithstanding anything contained herein to the
contrary, this Indenture may be amended by the parties hereto, whose consent
to so amend this Indenture will not be unreasonably withheld, but without
the consent of any Noteholders, to add, modify or eliminate such provisions
as may be necessary or advisable in order to enable: (a) the transfer to the
Issuer of all or any portion of the Receivables to be derecognized by MMCA
under GAAP, (b) the Issuer to avoid becoming a member of MMCA's consolidated
group under GAAP or (c) the Issuer or any affiliate of the Seller to
otherwise comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; provided, however, it being
a condition to any such amendment that the Rating Agency Condition shall
have been met; provided, further, that in the case of any amendment
hereunder, the Administrator shall furnish to the Indenture Trustee an
Opinion of Counsel which provides that: (i) the interests of the Noteholders
and the Swap Counterparty will not be materially and adversely affected by
the amendment and (ii) the amendment will not significantly change the
permitted activities of the Issuer; and provided, further, that no such
amendment shall be inconsistent with the derecognition by MMCA of the
Receivables under GAAP or cause the Issuer to become a member of MMCA's
consolidated group under GAAP.
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders. The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, also may, with prior notice to the Rating Agencies and with
the consent of the Holders of not less than a majority of the principal
amount of the Notes Outstanding, by Act of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that (i) such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder, (ii) the Rating Agency Condition shall have
been satisfied with respect to such action, (iii) such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
Federal or any then Applicable Tax State income tax purposes as an
association taxable as a corporation or otherwise have any material adverse
impact on the Federal or any then Applicable Tax State income taxation of
any Notes Outstanding or outstanding Certificates or any Noteholder or
Certificateholder, and (iv) (x) such action shall not materially adversely
affect the rights or obligations of any Swap Counterparty under the related
Interest Rate Swap Agreement or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under such
Interest Rate Swap Agreement or (y) each Swap Counterparty shall have
consented thereto (so long as a copy of the proposed amendment or supplement
has been delivered to each of the parties listed in Section 11.4(c) with
respect to the Swap Counterparty and makes clear that the Swap Counterparty
has no longer than ten Business Days to object to such amendment or
supplement, the Swap Counterparty's consent will be deemed to have been
given if the Swap Counterparty does not object in writing within ten
Business Days of receipt of a written request for such consent); and
provided, further, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change any Stated Maturity Date or the date of
payment of any installment of principal of or interest on any
Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the
provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust Estate
to payment of principal of or interest on the Notes, or change any
place of payment where, or the coin or currency in which, any Note
or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor,
as provided in Article V, to the payment of any such amount due on
the Notes on or after the respective due dates thereof (or, in the
case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the principal amount of
the Notes Outstanding, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to
the definition of the term "Outstanding";
(iv) reduce the percentage of the principal amount of
the Notes Outstanding required to direct the Indenture Trustee to
sell or liquidate the Trust Estate pursuant to Section 5.4 if the
proceeds of such sale would be insufficient to pay the principal
amount and accrued but unpaid interest on the Notes and the
Certificates;
(v) modify any provision of this Indenture specifying a
percentage of the aggregate principal amount of the Notes
necessary to amend this Indenture or the other Basic Documents
except to increase any percentage specified herein or to provide
that certain additional provisions of this Indenture or the Basic
Documents cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any Payment
Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to
or on a parity with the lien of this Indenture with respect to any
part of the Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
such collateral at any time subject hereto or deprive the Holder
of any Note of the security provided by the lien of this
Indenture.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in
good faith or on the basis of an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to each Swap Counterparty a copy of such
supplemental indenture and to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive and, subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer and
the Holders of the Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the Trust
Indenture Act as then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. (a) The Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer
pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on any
Payment Date on which the Servicer exercises its option to purchase the
assets of the Issuer pursuant to said Section 9.1(a), and the amount paid by
the Servicer shall be treated as collections of Receivables and applied to
pay the unpaid principal amount of the Notes plus accrued and unpaid
interest thereon and the Certificate Balance. The Servicer or the Issuer
shall furnish the Rating Agencies and the Noteholders notice of such
redemption. If the Notes are to be redeemed pursuant to this Section
10.1(a), the Servicer or the Issuer shall furnish notice of such election to
the Indenture Trustee not later than twenty (20) days prior to the
Redemption Date and the Issuer shall deposit by 10:00 A.M. (New York City
time) on the Redemption Date with the Indenture Trustee in the Note Payment
Account the Redemption Price of the Notes to be redeemed, whereupon all such
Notes shall be due and payable on the Redemption Date.
(b) In the event that on or prior to the Payment Date on
which the Pre-Funding Period ends (or, if the Pre-Funding Period does not
end on a Payment Date, the immediately succeeding Payment Date) the
Remaining Pre-Funded Amount has been withdrawn from the Pre-Funding Account
and deposited to the Collection Account by the Indenture Trustee at the
direction of the Servicer pursuant to Section 4.11(b) of the Sale and
Servicing Agreement, the Remaining Pre-Funded Amount shall be treated as a
part of the Available Funds and the Principal Distribution Amount for such
Payment Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1(a) shall be given by the Indenture Trustee by first-class
mail, postage prepaid, or by facsimile mailed or transmitted promptly
following receipt of notice from the Issuer or Servicer pursuant to Section
10.1(a), but not later than ten (10) days prior to the applicable Redemption
Date, to each Holder of Notes as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address or
facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered
for payment of the Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer; provided,
that in the case of a redemption pursuant to Section 10.1(b), no notice
shall be required to be given to Noteholders. Failure to give any required
notice of redemption, or any defect therein, to any Holder of any Note shall
not impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section
10.2 (in the case of redemption pursuant to Section 10.1(a)), on the
Redemption Date become due and payable at the Redemption Price and (unless
the Issuer shall default in the payment of the Redemption Price) no interest
shall accrue on the Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to
take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting
the applicable requirements of this Section 11.1, except that, in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express
an informed opinion as to whether or not such covenant or
condition has been complied with; and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety (90)
days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer of the property or securities to be so
deposited and of all other such property or securities made the
basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this
clause (ii), is ten percent (10%) or more of the principal amount
of the Notes Outstanding, but such a certificate need not be
furnished with respect to any property or securities so deposited,
if the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $25,000 or less than
one percent (1%) of the principal amount of the Notes Outstanding.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within ninety (90) days of such
release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release
will not impair the security under this Indenture in contravention
of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the
fair value of the property or securities and of all other
property, other than property as contemplated by clause (v) below
or securities released from the lien of this Indenture since the
commencement of the then-current calendar year, as set forth in
the certificates required by clause (iii) above and this clause
(iv), equals ten percent (10%) or more of the principal amount of
the Notes Outstanding, but such certificate need not be furnished
in the case of any release of property or securities if the fair
value thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent (1%) of the principal
amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions
of this Section 11.1, the Issuer may, without compliance with the
requirements of the other provisions of this Section 11.1, (A)
collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
SECTION 11.2 Form of Documents Delivered to Indenture
Trustee. (a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
(b) Any certificate or opinion of a Responsible Officer of
the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any such
certificate of a Responsible Officer or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Servicer, the Seller,
the Administrator or the Issuer, stating that the information with respect
to such factual matters is in the possession of the Servicer, the Seller,
the Administrator or the Issuer, unless such Responsible Officer or counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, comments, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it is
provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's compliance with
any term hereof, it is intended that the truth and accuracy, at the time of
the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions stated
in such document shall in such case be conditions precedent to the right of
the Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Noteholders in person or by agents duly appointed in writing; and
except as herein otherwise expressly provided such action shall become
effective when such instrument or instruments are delivered to the Indenture
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied herein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner
provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be provided by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the
Holder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is
to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer,
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust
Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder,
shall be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to:
MMCA Auto Owner Trust 2001-3,
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
with a copy to the Administrator at:
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
or at any other address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the Indenture
Trustee.
(c) Notices required to be given to the Rating Agencies by
the Issuer, the Indenture Trustee, the Owner Trustee or the initial Swap
Counterparty shall be in writing, personally delivered, sent by facsimile or
mailed by certified mail, return receipt requested, to
in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
in the case of S&P, at the following address:
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
in the case of Fitch, at the following address:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Fax: (000) 000-0000
in the case of the initial Swap Counterparty as of the
Closing Date, at the following address:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Fax: (000) 000-0000
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx (Derivatives Marketing)
Fax: (000) 000-0000
and with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department - Capital Markets Group
Fax: (000) 000-0000
SECTION 11.5 Notices to Noteholders; Waiver. (a) Where this
Indenture provides for notice to Noteholders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by such event, at his address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholder shall affect the sufficiency
of such notice with respect to other Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have
been duly given.
(b) Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
(c) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or similar activity, it shall
be impractical to mail notice of any event to Noteholders when such notice
is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for
in this Indenture for such payments or notices. The Issuer shall furnish to
the Indenture Trustee a copy of each such agreement and the Indenture
Trustee shall cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision
hereof that is required to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall
control.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents.
SECTION 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Noteholders, the Swap Counterparties, and any other party secured hereunder,
and any other Person with an ownership interest in any part of the Trust
Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture; provided, that no Swap Counterparty shall have any right to
institute any Proceeding, judicial or otherwise, with respect to enforcement
of remedies under Article V of this Indenture upon the occurrence of an
Event of Default.
SECTION 11.12 Legal Holiday. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes or this Indenture) payment need not be made
on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date on which nominally due, and no
interest shall accrued for the period from and after any such nominal date.
SECTION 11.13 Governing Law. This Indenture shall be
construed in accordance with the laws of the State of New York.
SECTION 11.14 Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to the Indenture Trustee) to the effect
that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of
any right or remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities), and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all
purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled
to the benefits of, the terms and provisions of Article VI, VII and VIII of
the Trust Agreement.
SECTION 11.17 No Petition; Subordination; Claims Against
Seller. The Indenture Trustee, by entering into this Indenture, and each
Noteholder or Note Owner, by accepting a Note or beneficial interest in a
Note, as the case may be, hereby covenant and agree that (a) they will not
at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, this Indenture
or any of the Basic Documents, (b) any claim that they may have at any time
against the Subtrust Assets of any Subtrust unrelated to the Notes, and any
claim they have at any time against the Seller that they may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect or otherwise subject to any
insolvency, reorganization, liquidation, rehabilitation or other similar
proceedings, of the claims of the holders of any Securities related to such
unrelated Subtrust and the holders of any other notes, bonds, contracts or
other obligations that are related to such unrelated Subtrust and (c) they
hereby irrevocably make the election afforded by Title 00 Xxxxxx Xxxxxx Code
Section 1111(b)(1)(A)(i) to secured creditors to receive the treatment
afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(2) with respect to
any secured claim that they may have at any time against the Seller. The
obligations of the Seller under this Indenture are limited to the related
Subtrust and the related Subtrust Assets.
SECTION 11.18 Inspection. The Issuer agrees that, with
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books
of account, records, reports and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as
may be reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
SECTION 11.19 Employee Benefit Plans. Each Plan that acquires
a Note, by its acceptance of the Note, shall be deemed to represent that its
acquisition, holding and disposition of the Note does not give rise to a
prohibited transaction for which no exemption is available.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
By: BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ X. Xxxxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx
Title: Trust Officer
SCHEDULE A
----------
Schedule of Receivables provided to Indenture Trustee
on Computer Tape, Compact Disk or Microfiche
SCHEDULE I
----------
List of Permitted Investments
Account(s) Permitted Investments
Collection Account Federated Government Obligations Fund
Negative Carry Account Federated Government Obligations Fund
Payahead Account Federated Government Obligations Fund
Pre-Funding Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
EXHIBIT A-1
-----------
[Form of Class A-1 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $222,000,000
No. R-1 CUSIP NO. 553083 BT 2
MMCA AUTO OWNER TRUST 2001-3
2.470% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of TWO HUNDRED TWENTY TWO MILLION
DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class
A-1 Notes pursuant to Section 2.8 of the Indenture, dated as of October 1,
2001 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that if not paid prior
to such date, the entire unpaid principal amount of this Class A-1 Note
shall be due and payable on the earlier of the October 2002 Payment Date
(the "Class A-1 Stated Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. In addition, the unpaid
principal amount of this Class A-1 Note may be redeemed pursuant to Section
10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the Pre-Funding
Period. Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall
be applicable herein.
The Issuer shall pay interest on this Class A-1 Note at the
rate per annum shown above on each Payment Date until the principal of this
Class A-1 Note is paid or made available for payment, on the principal
amount of this Class A-1 Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Class A-1 Note will accrue for each Payment
Date from and including the previous Payment Date (or, in the case of the
initial Payment Date, or if no interest has been paid, from and including
the Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of the actual number of days elapsed and a 360-day
year. Such principal of and interest on this Class A-1 Note shall be paid in
the manner specified on the reverse side hereof.
The principal of and interest on this Class A-1 Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-1 Note shall be
applied first to interest due and payable on this Class A-1 Note as provided
above and then to the unpaid principal of this Class A-1 Note.
Reference is made to the further provisions of this Class A-1
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-1 Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: __________________________________
Responsible Officer
This Class A-1 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its 2.470% Class A-1 Asset Backed Notes,
which, together with the Floating Rate Class A-2 Asset-Backed Notes, the
Floating Rate Class A-3 Asset-Backed Notes, the Floating Rate Class A-4
Asset-Backed Notes and the Floating Rate Class B Asset-Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-1
Notes are equal in right of payment to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-1 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means
the fifteenth day of each month or, if any such day is not a Business Day,
the next succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of
this Class A-1 Note shall be due and payable on the earlier of the Class A-1
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-1 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-1 Notes shall be made pro rata to the
Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-1 Note, shall be made by
check mailed to the Person whose name appears as the Registered Holder of
this Class A-1 Note (or one or more Predecessor Notes) on the Note Register
as of the close of business on each Record Date, except that with respect to
Class A-1 Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
A-1 Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A-1 Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding
upon all future Holders of this Class A-1 Note and of any Class A-1 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-1 Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile
prior to such Payment Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Class A-1 Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-1 Note may be
registered on the Note Register upon surrender of this Class A-1 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class A-1 Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class A-1 Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture Trustee
or the Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the Seller
that such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note
are limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-1
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-1 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class A-1 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-1 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of all of the Notes Outstanding, voting as a
group, and with the consent of the Swap Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties under
the related Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under such Interest Rate Swap Agreements. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-1
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-1 Note and of
any Class A-1 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-1 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-1 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-1 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Class A-1 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-2
-----------
[Form of Class A-2 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $244,000,000
No. R-1 CUSIP NO. 553083 BU 9
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of TWO HUNDRED FORTY FOUR MILLION
DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class
A-2 Notes pursuant to Section 2.8 of the Indenture, dated as of October 1,
2001 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee (in such
capacity, the "Indenture Trustee"); provided, however, that if not paid
prior to such date, the entire unpaid principal amount of this Class A-2
Note shall be due and payable on the earlier of the May 2004 Payment Date
(the "Class A-2 Stated Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. In addition, the unpaid
principal amount of this Class A-2 Note may be redeemed pursuant to Section
10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the Pre-Funding
Period. Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall
be applicable herein.
The Issuer shall pay interest on this Class A-2 Note at a per
annum rate equal to the London Interbank Offered Rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus
0.18% on the principal amount of this Class A-2 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to 2.53125% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class A-2 Note is paid or made available for payment. Interest on
this Class A-2 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date, or if no
interest has been paid, from and including the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of the
actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class A-2 Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Class A-2 Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-2 Note shall be
applied first to interest due and payable on this Class A-2 Note as provided
above and then to the unpaid principal of this Class A-2 Note.
Reference is made to the further provisions of this Class A-2
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-2 Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________
Responsible Officer
This Class A-2 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-2 Asset Backed
Notes, which, together with the 2.470% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-3 Asset-Backed Notes, the Floating Rate Class A-4
Asset-Backed Notes and the Floating Rate Class B Asset-Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-2
Notes are equal in right of payment to the Class A-1 Notes, the Class A-3
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-2 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means
the fifteenth day of each month or, if any such day is not a Business Day,
the next succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of
this Class A-2 Note shall be due and payable on the earlier of the Class A-2
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-2 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-2 Notes shall be made pro rata to the
Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-2 Note, shall be made by
check mailed to the Person whose name appears as the Registered Holder of
this Class A-2 Note (or one or more Predecessor Notes) on the Note Register
as of the close of business on each Record Date, except that with respect to
Class A-2 Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
A-2 Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A-2 Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding
upon all future Holders of this Class A-2 Note and of any Class A-2 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-2 Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile
prior to such Payment Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Class A-2 Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-2 Note may be
registered on the Note Register upon surrender of this Class A-2 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class A-2 Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class A-2 Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture Trustee
or the Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the Seller
that such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note
are limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-2
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-2 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class A-2 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-2 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of all of the Notes Outstanding, voting as a
group, and with the consent of the Swap Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties under
the related Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under such Interest Rate Swap Agreements. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-2
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-2 Note and of
any Class A-2 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-2 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-2 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-2 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Class A-2 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
EXHIBIT A-3
-----------
[Form of Class A-3 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $437,000,000
No. R-1 CUSIP NO. 553083 BV 7
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of FOUR HUNDRED THIRTY SEVEN MILLION
DOLLARS payable on each Payment Date in the aggregate amount, if any,
payable from the Note Payment Account in respect of principal on the Class
A-3 Notes pursuant to Section 2.8 of the Indenture, dated as of October 1,
2001 (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, as Indenture Trustee (in such
capacity, the "Indenture Trustee"); provided, however, that if not paid
prior to such date, the entire unpaid principal amount of this Class A-3
Note shall be due and payable on the earlier of the February 2006 Payment
Date (the "Class A-3 Stated Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. In addition, the unpaid
principal amount of this Class A-3 Note may be redeemed pursuant to Section
10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the Pre-Funding
Period. Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall
be applicable herein.
The Issuer shall pay interest on this Class A-3 Note at a per
annum rate equal to the London Interbank Offered Rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus
0.25% on the principal amount of this Class A-3 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to 2.53125% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class A-3 Note is paid or made available for payment. Interest on
this Class A-3 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from and including the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of the
actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class A-3 Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Class A-3 Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-3 Note shall be
applied first to interest due and payable on this Class A-3 Note as provided
above and then to the unpaid principal of this Class A-3 Note.
Reference is made to the further provisions of this Class A-3
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-3 Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee under the
Trust Agreement
By: _________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By: _________________________
Responsible Officer
This Class A-3 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-3 Asset Backed
Notes, which, together with the 2.470% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-4
Asset-Backed Notes and the Floating Rate Class B Asset-Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-3
Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-3 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means
the fifteenth day of each month or, if any such day is not a Business Day,
the next succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of
this Class A-3 Note shall be due and payable on the earlier of the Class A-3
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-3 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-3 Notes shall be made pro rata to the
Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-3 Note, shall be made by
check mailed to the Person whose name appears as the Registered Holder of
this Class A-3 Note (or one or more Predecessor Notes) on the Note Register
as of the close of business on each Record Date, except that with respect to
Class A-3 Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
A-3 Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A-3 Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding
upon all future Holders of this Class A-3 Note and of any Class A-3 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-3 Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile
prior to such Payment Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Class A-3 Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-3 Note may be
registered on the Note Register upon surrender of this Class A-3 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class A-3 Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class A-3 Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture Trustee
or the Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the Seller
that such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note
are limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-3
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-3 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class A-3 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-3 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of all of the Notes Outstanding, voting as a
group and with the consent of the Swap Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties under
the related Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under such Interest Rate Swap Agreements. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-3
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-3 Note and of
any Class A-3 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-3 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-3 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-3 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Class A-3 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
EXHIBIT A-4
-----------
[Form of Class A-4 Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $399,400,000
No. R-1 CUSIP NO. 553083 BW5
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of THREE HUNDRED NINETY NINE MILLION
FOUR HUNDRED THOUSAND DOLLARS payable on each Payment Date in the aggregate
amount, if any, payable from the Note Payment Account in respect of
principal on the Class A-4 Notes pursuant to Section 2.8 of the Indenture,
dated as of October 1, 2001 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Indenture"), between the Issuer and
Bank of Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity, the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Class A-4 Note shall be due and payable on the earlier of the
April 2007 Payment Date (the "Class A-4 Stated Maturity Date") and the
Redemption Date, if any, pursuant to Section 10.1(a) of the Indenture. In
addition, the unpaid principal amount of this Class A-4 Note may be redeemed
pursuant to Section 10.1(b) of the Indenture to the extent of a pro rata
share of funds remaining in the Pre-Funding Account upon the termination of
the Pre-Funding Period. Capitalized terms used but not defined herein are
defined in Article I of the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-4 Note at a per
annum rate equal to the London Interbank Offered Rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus
0.30% on the principal amount of this Class A-4 Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to 2.53125% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class A-4 Note is paid or made available for payment. Interest on
this Class A-4 Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from and including the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of the
actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class A-4 Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Class A-4 Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-4 Note shall be
applied first to interest due and payable on this Class A-4 Note as provided
above and then to the unpaid principal of this Class A-4 Note.
Reference is made to the further provisions of this Class A-4
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class A-4 Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: _______________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: ______________________________
Responsible Officer
This Class A-4 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its Floating Rate Class A-4 Asset Backed
Notes, which, together with the 2.470% Class A-1 Asset-Backed Notes, the
Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-3
Asset-Backed Notes and the Floating Rate Class B Asset-Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-4
Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes and senior in right of payment to the Class B
Notes, and the Class A-4 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means
the fifteenth day of each month or, if any such day is not a Business Day,
the next succeeding Business Day, commencing on November 15, 2001.
As described above, the entire unpaid principal amount of
this Class A-4 Note shall be due and payable on the earlier of the Class A-4
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-4 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of all the Notes Outstanding of all
Classes, voting as a group, have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-4 Notes shall be made pro rata to the
Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable
on each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class A-4 Note, shall be made by
check mailed to the Person whose name appears as the Registered Holder of
this Class A-4 Note (or one or more Predecessor Notes) on the Note Register
as of the close of business on each Record Date, except that with respect to
Class A-4 Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
A-4 Note be submitted for notation of payment. Any reduction in the
principal amount of this Class A-4 Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding
upon all future Holders of this Class A-4 Note and of any Class A-4 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-4 Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed or transmitted by facsimile
prior to such Payment Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Class A-4 Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class A-4 Note may be
registered on the Note Register upon surrender of this Class A-4 Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class A-4 Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class A-4 Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture Trustee
or the Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the Seller
that such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note
are limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-4
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class A-4 Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class A-4 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class A-4 Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of all of the Notes Outstanding, voting as a
group, and with the consent of the Swap Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties under
the related Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under such Interest Rate Swap Agreements. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-4
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-4 Note and of
any Class A-4 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-4 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-4 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-4 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Class A-4 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
EXHIBIT B
---------
[Form of Class B Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $98,440,000
No. R-1 CUSIP NO. 553083 BX 3
MMCA AUTO OWNER TRUST 2001-3
FLOATING RATE CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of NINETY EIGHT MILLION FOUR HUNDRED
FORTY THOUSAND DOLLARS payable on each Payment Date in the aggregate amount,
if any, payable from the Note Payment Account in respect of principal on the
Class B Notes pursuant to Section 2.8 of the Indenture, dated as of October
1, 2001 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as Indenture
Trustee (in such capacity, the "Indenture Trustee"); provided, however, that
if not paid prior to such date, the entire unpaid principal amount of this
Class B Note shall be due and payable on the earlier of the November 2008
Payment Date (the "Class B Stated Maturity Date") and the Redemption Date,
if any, pursuant to Section 10.1(a) of the Indenture. In addition, the
unpaid principal amount of this Class B Note may be redeemed pursuant to
Section 10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the Pre-Funding
Period. Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall
be applicable herein.
The Issuer shall pay interest on this Class B Note at a per
annum rate equal to the London Interbank Offered Rate ("LIBOR") for
one-month U.S. Dollar deposits in Europe (determined as set forth in the
Indenture) on the applicable LIBOR Determination Date, in each case plus
0.95% on the principal amount of this Class B Note outstanding on the
preceding Payment Date (provided, however, that interest shall accrue from
the Closing Date to the initial Payment Date, and shall be payable on the
initial Payment Date, at a per annum rate equal to 2.53125% on the original
principal amount outstanding on the Closing Date), subject to certain
limitations contained in Section 3.1 of the Indenture, until the principal
of this Class B Note is paid or made available for payment. Interest on this
Class B Note will accrue for each Payment Date from and including the
previous Payment Date (or, in the case of the initial Payment Date or if no
interest has been paid, from and including the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of the
actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class B Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Class B Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class B Note shall be
applied first to interest due and payable on this Class B Note as provided
above and then to the unpaid principal of this Class B Note.
Reference is made to the further provisions of this Class B
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Class B Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
Date: October 12, 2001
MMCA AUTO OWNER TRUST 2001-3,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: __________________________
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: __________________________
Responsible Officer
This Class B Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Floating Rate Class B Asset Backed Notes,
which, together with the 2.470% Class A-1 Asset-Backed Notes, the Floating
Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed
Notes and the Floating Rate Class A-4 Asset-Backed Notes (collectively, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture.
The Class B Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the Indenture.
Except as otherwise set forth in the Indenture, the Class B Notes are
subordinated in right of payment to the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, and to amounts payable
to the Swap Counterparties pursuant to the Interest Rate Swap Agreements, as
and to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means
the fifteenth day of each month or, if any such day is not a Business Day,
the next succeeding Business Day, commencing November 15, 2001.
As described above, the entire unpaid principal amount of
this Class B Note shall be due and payable on the earlier of the Class B
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a). In addition, the unpaid principal amount of this Class B Note may
be redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a
pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Holders of the Notes representing not less than
a majority of all the Notes Outstanding of all Classes, voting as a group,
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the
Class B Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class B Note due and payable on
each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class B Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this
Class B Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date, except that with respect to Class
B Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
B Note be submitted for notation of payment. Any reduction in the principal
amount of this Class B Note (or any one or more Predecessor Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Class B Note and of any Class B Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class B Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Class B Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class B Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in
the manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class B Note may be
registered on the Note Register upon surrender of this Class B Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class B Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class B Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note, covenants
and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture Trustee
or the Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the Seller
that such Noteholder may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note
are limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, shall be deemed to represent that its acquisition, holding and
disposition of the Note or beneficial interest in the Note, as applicable,
does not give rise to a prohibited transaction for which no exemption is
available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class B
Note is issued with the intention that, for federal, state and local income,
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class B Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class B Note (as of the day of determination or as of such other date as may
be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Class B Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of the all of the Notes Outstanding, voting as
a group, and with the consent of the Swap Counterparties if such amendment
adversely affects the rights or obligations of the Swap Counterparties under
the related Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under such Interest Rate Swap Agreements. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Notes Outstanding on behalf of the Holders of all the
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class B Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class B Note and of any
Class B Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof whether or not notation of such consent or waiver
is made upon this Class B Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class B Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class B Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Class B Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
EXHIBIT C
---------
FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)
October 12, 2001
Re: MMCA Auto Owner Trust 2001-3 - Security Interest Matters
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit
of America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto Receivables
Trust, a Delaware business trust ("MART"), in connection with the
transactions contemplated by (i) the Purchase Agreement, dated as of October
1, 2001 (the "Purchase Agreement"), between MMCA and MART, (ii) the Sale and
Servicing Agreement, dated as of October 1, 2001 (the "Sale and Servicing
Agreement"), by and among MART, as seller, MMCA, as servicer, and MMCA Auto
Owner Trust 2001-3, a Delaware business trust (the "Trust"), as issuer,
(iii) the Indenture, dated as of October 1, 2001 (the "Indenture"), between
the Trust and Bank of Tokyo-Mitsubishi Trust Company, as indenture trustee
for the benefit of the Holders of the Notes (the "Indenture Trustee"), and
(iv) the Amended and Restated Trust Agreement, dated as of October 1, 2001
(the "Trust Agreement"), between MART and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"). Capitalized terms not otherwise defined
herein have the meanings assigned to such terms in the Sale and Servicing
Agreement.
Pursuant to the Purchase Agreement and the Assignments (as
such term is defined in the Purchase Agreement) related thereto, MMCA
proposes to sell to MART on the Closing Date and from time to time
thereafter during the Pre-Funding Period, and MART proposes to purchase from
MMCA, among other things, those motor vehicle retail installment sale
contracts identified on the Schedule of Receivables attached as Exhibit B to
the Purchase Agreement on the date hereof (collectively, the "Receivables")
secured by new and used automobiles and sport-utility vehicles
(collectively, the "Financed Vehicles"), certain monies due or received
thereunder on or after the related Cutoff Dates, MMCA's security interests
in the Financed Vehicles, MMCA's rights under certain insurance policies,
certain rights under dealer agreements relating to the Receivables and
certain other property related to the Receivables and all the proceeds
thereof.
Pursuant to the Sale and Servicing Agreement, MART will sell
to the Trust all of its right, title and interest in, to and under the
Receivables, certain monies due or received thereunder on or after the
related Cutoff Dates, certain other property relating to the Receivables and
all proceeds thereof. The Trust will issue $222,000,000 principal amount of
2.470% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), $244,000,000
principal amount of Floating Rate Class A-2 Asset Backed Notes (the "Class
A-2 Notes"), $437,000,000 principal amount of Floating Rate Class A-3 Asset
Backed Notes (the "Class A-3 Notes"), $399,400,000 principal amount of
Floating Rate Class A-4 Asset Backed Notes (the "Class A-4 Notes" and,
together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, the "Class A Notes"), and $98,440,000 principal amount of Floating
Rate Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"), pursuant to the provisions of an Underwriting
Agreement, dated October 3, 2001 (the "Underwriting Agreement"), between
MART and X.X. Xxxxxx Securities Inc., as representative of the several
underwriters named therein (in such capacity, the "Representative"). The
Trust also will issue $113,618,915.95 aggregate principal amount of Asset
Backed Certificates (the "Certificates") pursuant to the Trust Agreement.
In our examination, we have assumed the genuineness of all
signatures (including endorsements), the legal capacity of natural persons,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of
such copies. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon statements and
representations of MMCA and MART and their officers and other
representatives and of public officials.
In rendering the opinions set forth herein, we have examined
and relied on originals or copies, certified or otherwise identified to our
satisfaction, of the following:
(a) the Purchase Agreement, the Sale and Servicing Agreement,
the Indenture, the Trust Agreement and the First-Tier Initial Assignment (as
such term is defined in the Purchase Agreement);
(b) a Certificate of MART with respect to prior financing
statements, dated the date hereof, a copy of which is attached as Exhibit A
hereto (the "MART Certificate");
(c) a Certificate of the Trust with respect to prior
financing statements, dated the date hereof, a copy of which is attached as
Exhibit B hereto (the
"MART Certificate");
(d) a certificate of the Secretary of State of the State of
Delaware dated October 4, 2001 and a bringdown certificate dated as of
October 12, 2001 as to the existence and good standing of the MART (the
"MART Good Standing Certificate");
(e) a certificate of the Secretary of State of the State of
Delaware dated October 4, 2001 and a bringdown certificate dated as of
October 12, 2001 as to the existence and good standing of the Trust (the
"Trust Good Standing Certificate");
(f) an unfiled but signed copy of a financing statement
naming "MMCA Auto Receivables Trust" as debtor, "MMCA Auto Owner Trust
2001-3" as assignor and "Bank of Tokyo-Mitsubishi Trust Company, as
Indenture Trustee" as secured party/assignee, which we understand will be
filed within ten (10) days of the Closing Date in the office of the
Secretary of State of the State of Delaware (such filing office, the
"Delaware Filing Office" and such financing statement, the "MART/Trust
Financing Statement");
(g) an unfiled copy of a financing statement (such financing
statement, the "Issuer/Indenture Trustee Financing Statement") naming "MMCA
Auto Owner Trust 2001-3" as debtor and "Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee" as secured party which we understand will be
filed within (10) ten days of the Closing Date in the Delaware Filing
Office;
(h) the reports of Lexis Document Services as to financing
statements naming "MMCA Auto Receivables Trust" as debtor and on file in the
office of the Secretary of State of the State of Delaware, as of an
effective date of August 31, 2001 (the "MART Search Report");
(i) the reports of Lexis Document Services as to financing
statements naming "MMCA Auto Owner Trust 2001-3" as debtor and on file in
the office of the Secretary of State of the State of Delaware, as of an
effective date of August 30, 2001 (the "Trust Search Report"); and
(j) such other agreements, certificates or documents as we
have deemed necessary or appropriate as a basis for the opinion set forth
below.
As used herein, "New York UCC" means the Uniform Commercial
Code as in effect on the date hereof in the State of New York, "Delaware
UCC" means the Uniform Commercial Code as in effect on the date hereof in
the State of Delaware, "UCC" means the New York UCC or the Delaware UCC, as
applicable (without regard to laws referenced in Section 9-201 thereof) and
(iv) "Initial Receivables" means that portion of the Receivables identified
on the Schedule of Receivables attached as Exhibit B to the Purchase
Agreement on the date hereof.
We express no opinion as to the laws of any jurisdiction
other than the UCC.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. The provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Trust, a valid security interest (as
such term is defined in Section 1-201 of the New York UCC) in MART's rights
in the Initial Receivables and proceeds thereof, which security interest if
characterized as a transfer for security will secure payment of the Notes.
2. The provisions of the Sale and Servicing Agreement are
sufficient to constitute authorization by MART of the filing of the
MART/Trust Financing Statement for purposes of Section 9-509 of the Delaware
UCC.
3. The MART/Trust Financing Statement includes all of the
types of information required by Sections 9-502(a) and 9-516 of the Delaware
UCC in order for such MART/Trust Financing Statement to be in appropriate
form for filing in the Delaware Filing Office.
4. Under the Delaware UCC, upon the later of the attachment
of the security
interest and the filing of the MART/Trust Financing Statement in the
Delaware Filing Office, the security interest in favor of the Trust will be
perfected in MART's rights in the Initial Receivables and proceeds thereof.
We hereby confirm that Schedule C hereto identifies all persons who (i) are
identified in the MART Search Report as having filed in the office of the
Secretary of State of the State of Delaware a financing statement naming
"MMCA Auto Receivables Trust" as debtor and containing a description of
collateral sufficient to include the Initial Receivables as of the
effective date of the MART Search Report, and (ii) have not consensually
released or subordinated their interest in the Initial Receivables.
5. The provisions of the Indenture are effective to create in
favor of the Indenture Trustee for the benefit of the Holders of the Notes
and the Swap Counterparties (as defined in the Indenture), a valid security
interest under the New York UCC in the Trust's rights in the Initial
Receivables and proceeds thereof to secure payment of the Notes and payment
of amounts payable to the Swap Counterparties under the Interest Rate Swap
Agreements.
6. The provisions of the Indenture are sufficient to
constitute authorization by the Trust of the filing of the Issuer/Indenture
Trustee Financing Statement for purposes of Section 9-509 of the Delaware
UCC.
7. The Issuer/Indenture Trustee Financing Statement includes
all of the types of information required by Sections 9-502(a) and 9-516 of
the Delaware UCC in order for such Issuer/Indenture Trustee Financing
Statement to be in appropriate form for filing in the Delaware Filing
Office.
8. Under the Delaware UCC, upon the later of the attachment
of the security interest and the filing of the Issuer/Indenture Trustee
Financing Statement in the Delaware Filing Office, the security interest of
the Indenture Trustee for the benefit of the Holders of the Notes and the
Swap Counterparties (as defined in the Indenture) will be perfected in the
Trust's rights in the Initial Receivables and proceeds thereof. We hereby
confirm that Schedule D hereto identifies all persons who (i) are identified
in the Trust Search Report as having filed in the office of the Secretary of
State of the State of Delaware a financing statement naming "MMCA Auto Owner
Trust 2001-3" as debtor and containing a description of collateral
sufficient to include the Initial Receivables as of the effective date of
the Trust Search Report, and (ii) have not consensually released or
subordinated their interest in the Initial Receivables.
9. You have asked us whether MART is a "registered
organization" as defined in the Delaware UCC. Pursuant to 12 Del. C. ss.
3812(a), the Secretary of State of the State of Delaware is required to
maintain a public record showing MART to have been organized. Based on our
review of a certified copy of the certificate of trust of MART and the MART
Good Standing Certificate, we are of the opinion that under the Delaware
UCC, MART is a "registered organization".
10. You have asked us whether the Trust is a "registered
organization" as defined in the Delaware UCC. Pursuant to 12 Del.C.
ss.3812(a), the Secretary of State of the State of Delaware is required to
maintain a public record showing the Trust to have been organized. Based on
our review of a certified copy of the certificate of trust of the Trust and
the Trust Good Standing Certificate, we are of the opinion that under the
Delaware UCC, the Trust is a "registered organization."
Our opinions in paragraphs 1-10 above are subject to the
following qualifications:
(a) For purposes of opinion paragraphs 1 and 4, we have
assumed that the Initial Receivables exist and that MART owns the Initial
Receivables and we express no opinion as to the nature or extent of MART's
rights in, or title to, any of the Initial Receivables, and for purposes of
our opinions in paragraphs 5 and 8, we have assumed that the Initial
Receivables exist and that the Trust owns the Initial Receivables and we
express no opinion as to the nature or extent of the Trust's rights in, or
title to, any of the Initial Receivables;
(b) Our opinion with respect to proceeds is subject to the
limitations set forth in Section 9-315 of the UCC and, in addition, we call
to your attention that in the case of certain types of proceeds, other
parties such as holders in due course, protected purchasers of securities,
persons who obtain control over securities entitlements and buyers in the
ordinary course of business may acquire a superior interest or may take
their interest free of the respective security interest;
(c) We have assumed that there are no agreements between MART
or the Trust and any account debtor or person prohibiting, restricting or
conditioning the assignment of any portion of the Initial Receivables,
except to the extent that such anti-assignment provisions are rendered
ineffective pursuant to 9-406, 9-407, 9-408 or 9-409 of the UCC. We call to
your attention that in many cases where the UCC renders anti-assignment
provisions ineffective for purposes of creation, attachment or perfection of
the security interest, the security interest is not enforceable against the
account debtor;
(d) We have assumed that the principal obligation of the
account debtor or obligor under each Initial Receivable is a monetary
obligation;
(e) For purposes of our opinion paragraphs 9 and 10, we have
assumed that each of MART and the Trust is not organized under the laws of
any jurisdiction other than the State of Delaware and that the internal
affairs of MART and the Trust are not otherwise subject to the laws of any
jurisdiction other than Delaware. We call to your attention that to the
extent that the internal affairs of MART or the Trust are subject to
regulation under the laws of another State, the State of Delaware may
recognize such authority. See, e.g., XxXxxxxxx Inc. x. Xxxxx, 531 A.2d 206
(Del. 1987). Further, we have assumed that each of MART and the Trust has
not and will not file (A) any certificates of transfer or continuance
pursuant to Delaware General Corporation Law ("DGCL") ss. 390(a), Delaware
Revised Uniform Limited Partnership Act ("DRULPA") ss. 17-216(a) or Delaware
Limited Liability Company Act ("DLLC") ss. 18-213(a), (B) any certificates
of domestication pursuant to DGCL ss. 388(b)(1), DRULPA ss.17-215(i) or DLLC
ss. 18-212(b) or (C) any similar certificates in any jurisdiction other than
the State of Delaware;
(f) Our opinion in paragraph (9) is based solely upon our
review of the MART Good Standing Certificate and the certificate of trust of
MART;
(g) Our opinion in paragraph (10) is based solely upon our
review of the Trust Good Standing Certificate and the certificate of trust
of the Trust;
(h) We note that we have delivered to you our opinion with
respect to the status of each of MART and the Trust as a "registered
organization." Except to the extent set forth in paragraphs (9) and (10)
above, we express no opinions as to the law governing perfection, the effect
of perfection and non-perfection or priority of the security interest;
(i) We express no opinion regarding the security interest of
the Trust or the Indenture Trustee in any Initial Receivables consisting of
claims against any government or governmental agency (including, without
limitation, the United States of America or any state thereof or any agency
or department of the United States of America or any state thereof);
(j) We express no opinion whether or to what extent the
transfer to the Trust pursuant to the Sale and Servicing Agreement will be
characterized as a sale or a transfer for security;
(k) We have assumed that (i) the Sale and Servicing Agreement
constitutes the legal, valid and binding obligation of all parties thereto,
enforceable against all parties thereto in accordance with its terms and
(ii) the Indenture constitutes the legal, valid and binding obligation of
all parties thereto, enforceable against all parties thereto, in accordance
with its terms; and
(l) We express no opinion with respect to the security
interest granted to the Indenture Trustee for the benefit of any Person who
becomes a Swap Counterparty (as defined in the Indenture) after the date
hereof.
This opinion is being furnished only to you and is solely for
your benefit in connection with the closing today under the Sale and
Servicing Agreement and is not to be used, circulated, quoted, relied upon
or otherwise referred to for any purpose without prior written consent in
each instance.
Very truly yours,
Schedule B (to Opinion)
[SCHEDULE OF PRIOR FILERS]
Exhibit A (to Opinion)
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
Dated: __________
The undersigned, a duly authorized officer of MMCA AUTO
RECEIVABLES TRUST ("MART"), does hereby certify as follows:
(1) No financing statements or other filings have been filed
naming MART as debtor or seller in any State of the United States of America
to perfect a sale, transfer or assignment of or lien, encumbrance, security
interest or other interest in, or which otherwise pertains to, the
Receivables.
(2) At all times since the establishment of MART, MART has
had one place of business and it is and has been located in Cypress,
California.
(3) At all times since the establishment of MART and on the
date hereof, MART has had a mailing address of X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000-0000.
(4) Attached hereto as Annex A are forms of motor vehicle
retail installment sales contracts used to create the Receivables (the "Form
Contracts"), and each Receivable is substantially in the form of a Form
Contract.
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Sale and Servicing
Agreement, dated as of October 1, 2001, by and among MART, Mitsubishi Motors
Credit of America, Inc., as Servicer, and MMCA Auto Owner Trust 2001-3, as
Trust, and accepted and agreed to by Bank of Tokyo-Mitsubishi Trust Company,
as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand to this Certificate as
of the day hereinabove set forth.
MMCA AUTO RECEIVABLES TRUST
By: ________________________________
Name:
Title:
Annex A (to Opinion)
[FORMS OF RETAIL INSTALLMENT SALES CONTRACT]
Annex B (to Opinion)
[CERTIFIED REPORT OF FILING OFFICE ON PRIOR FINANCING STATEMENTS]
Annex A
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[FORM OF RETAIL INSTALLMENT SALE CONTRACT]
