Exhibit 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2002-1,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of March 1, 2002
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$151,000,000 2.00875% Class A-1 Asset Backed Notes
$384,000,000 3.03% Class A-2 Asset Backed Notes
$369,000,000 4.15% Class A-3 Asset Backed Notes
$522,800,000 Floating Rate Class A-4 Asset Backed Notes
$144,500,000 5.37% Class B Asset Backed Notes
$65,600,000 6.20% Class C Asset Backed Notes
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CROSS REFERENCE TABLE1
TIA Indenture
Section Section
------- -------
310 (a)(1)..........................................................................................6.11
(a)(2)..........................................................................................6.11
(a)(3)..........................................................................................6.10
(a)(4).........................................................................................N.A.2
(a)(5)..........................................................................................6.11
(b)........................................................................................6.8; 6.11
(c).............................................................................................N.A.
311 (a).............................................................................................6.12
(b).............................................................................................6.12
(c).............................................................................................N.A.
312 (a)...............................................................................................7.1
(b).............................................................................................7.2
(c).............................................................................................7.2
313 (a).............................................................................................7.4
(b)(1)..........................................................................................7.4
(b)(2)....................................................................................7.4; 11.5
(c).............................................................................................7.4
(d).............................................................................................7.3
314 (a).............................................................................................7.3
(b)...........................................................................................11.15
(c)(1).........................................................................................11.1
(c)(2).........................................................................................11.1
(c)(3).........................................................................................11.1
(d)............................................................................................11.1
(e)............................................................................................11.1
(f)............................................................................................11.1
315 (a).............................................................................................6.1
(b).......................................................................................6.5; 11.5
(c).............................................................................................6.1
(d).............................................................................................6.1
(e).............................................................................................5.13
316 (a) (last sentence)..............................................................................1.1
(a)(1)(A).......................................................................................5.11
(a)(1)(B).......................................................................................5.12
(a)(2)..........................................................................................N.A.
(b).............................................................................................5.7
(c).............................................................................................N.A
317 (a)(1)..........................................................................................5.3
(a)(2)..........................................................................................5.3
(b).............................................................................................3.3
318 (a)............................................................................................11.7
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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............................................................3
Section 1.1 Definitions.........................................................................3
Section 1.2 Incorporated by Reference of Trust Indenture Act....................................3
ARTICLE II - THE NOTES............................................................................................4
Section 2.1 Form................................................................................4
Section 2.2 Execution, Authentication and Delivery..............................................4
Section 2.3 Temporary Notes.....................................................................5
Section 2.4 Tax Treatment.......................................................................5
Section 2.5 Registration; Registration of Transfer and Exchange.................................5
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes..........................................6
Section 2.7 Persons Deemed Owner................................................................7
Section 2.8 Payments............................................................................7
Section 2.9 Cancellation.......................................................................11
Section 2.10 Release of Collateral..............................................................11
Section 2.11 Book-Entry Notes...................................................................11
Section 2.12 Notices to Clearing Agency.........................................................12
Section 2.13 Definitive Notes...................................................................12
Section 2.14 Authenticating Agents..............................................................13
ARTICLE III - COVENANTS..........................................................................................13
Section 3.1 Payment Covenant...................................................................13
Section 3.2 Maintenance of Office or Agency....................................................13
Section 3.3 Money for Payments To Be Held in Trust.............................................14
Section 3.4 Existence..........................................................................15
Section 3.5 Protection of Trust Estate.........................................................15
Section 3.6 Opinions as to Trust Estate........................................................16
Section 3.7 Performance of Obligations; Servicing of Receivables...............................16
Section 3.8 Negative Covenants.................................................................17
Section 3.9 Annual Statement as to Compliance..................................................18
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Subtrust Assets.........18
Section 3.11 No Other Business..................................................................18
Section 3.12 No Borrowing.......................................................................19
Section 3.13 Servicer's Obligations.............................................................19
Section 3.14 Guarantees, Loans, Advances and Other Liabilities..................................19
Section 3.15 Capital Expenditures...............................................................19
Section 3.16 Further Instruments and Acts.......................................................19
Section 3.17 Restricted Payments................................................................19
Section 3.18 Notice of Events of Default........................................................19
Section 3.19 Removal of Administrator...........................................................19
Section 3.20 Calculation Agent..................................................................19
ARTICLE IV - SATISFACTION AND DISCHARGE..........................................................................20
Section 4.1 Satisfaction and Discharge of Indenture............................................20
Section 4.2 Satisfaction and Discharge of the Notes............................................21
Section 4.3 Application of Trust Money.........................................................22
Section 4.4 Repayment of Monies Held by Paying Agent...........................................22
ARTICLE V - REMEDIES.............................................................................................22
Section 5.1 Events of Default..................................................................22
Section 5.2 Acceleration of Maturity; Rescission and Annulment.................................23
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..........24
Section 5.4 Remedies; Priorities...............................................................26
Section 5.5 Optional Preservation of the Receivables...........................................27
Section 5.6 Limitation of Suits................................................................28
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..............28
Section 5.8 Restoration of Rights and Remedies.................................................28
Section 5.9 Rights and Remedies Cumulative.....................................................28
Section 5.10 Delay or Omission Not a Waiver.....................................................29
Section 5.11 Control by Noteholders.............................................................29
Section 5.12 Waiver of Past Default.............................................................29
Section 5.13 Undertaking for Costs..............................................................30
Section 5.14 Waiver of Stay or Extension Laws...................................................30
Section 5.15 Action on Notes....................................................................30
Section 5.16 Performance and Enforcement of Certain Obligations.................................30
ARTICLE VI - THE INDENTURE TRUSTEE...............................................................................31
Section 6.1 Duties of Indenture Trustee........................................................31
Section 6.2 Rights of Indenture Trustee........................................................32
Section 6.3 Individual Rights of Indenture Trustee.............................................33
Section 6.4 Indenture Trustee's Disclaimer.....................................................33
Section 6.5 Notice of Defaults.................................................................33
Section 6.6 Reports by Indenture Trustee to Holders............................................34
Section 6.7 Compensation and Indemnity.........................................................34
Section 6.8 Replacement of Indenture Trustee...................................................34
Section 6.9 Successor Indenture Trustee by Merger..............................................35
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................35
Section 6.11 Eligibility; Disqualification......................................................36
Section 6.12 Preferential Collection of Claims Against Issuer...................................37
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses..............................37
Section 6.14 Interest Rate Swap Provisions......................................................37
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING......................................................................39
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.............39
Section 7.2 Preservation of Information; Communications to Noteholders.........................39
Section 7.3 Reporting by Issuer................................................................40
Section 7.4 Reporting and Notices by Indenture Trustee.........................................40
ARTICLE VIII - ACCOUNTS, DISBURSEMENTS AND RELEASES..............................................................40
Section 8.1 Collection of Money................................................................40
Section 8.2 Trust Accounts.....................................................................41
Section 8.3 General Provisions Regarding Accounts..............................................41
Section 8.4 Release of Trust Estate............................................................42
Section 8.5 Opinion of Counsel.................................................................42
ARTICLE IX - SUPPLEMENTAL INDENTURES.............................................................................42
Section 9.1 Supplemental Indentures Without Consent of Noteholders.............................42
Section 9.2 Supplemental Indentures with Consent of Noteholders................................44
Section 9.3 Execution of Supplemental Indentures...............................................46
Section 9.4 Effect of Supplemental Indenture...................................................46
Section 9.5 Conformity with Trust Indenture Act................................................46
Section 9.6 Reference in Notes to Supplemental Indentures......................................46
ARTICLE X - REDEMPTION OF NOTES..................................................................................47
Section 10.1 Redemption. (a)...................................................................47
Section 10.2 Form of Redemption Notice..........................................................47
Section 10.3 Notes Payable on Redemption Date...................................................48
ARTICLE XI - MISCELLANEOUS.......................................................................................48
Section 11.1 Compliance Certificates and Opinions, etc..........................................48
Section 11.2 Form of Documents Delivered to Indenture Trustee...................................49
Section 11.3 Acts of Noteholders................................................................50
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies....................50
Section 11.5 Notices to Noteholders; Waiver.....................................................52
Section 11.6 Alternate Payment and Notice Provisions............................................53
Section 11.7 Conflict with Trust Indenture Act..................................................53
Section 11.8 Effect of Headings and Table of Contents...........................................53
Section 11.9 Successors and Assigns.............................................................53
Section 11.10 Separability.......................................................................53
Section 11.11 Benefits of Indenture..............................................................53
Section 11.12 Legal Holiday......................................................................53
Section 11.13 Governing Law......................................................................53
Section 11.14 Counterparts.......................................................................54
Section 11.15 Recording of Indenture.............................................................54
Section 11.16 Trust Obligation...................................................................54
Section 11.17 No Petition; Subordination; Claims Against Seller..................................54
Section 11.18 Inspection.........................................................................54
Section 11.19 Employee Benefit Plans.............................................................55
SCHEDULES
Schedule of Receivables...............................................................................Schedule A
List of Permitted Investments.........................................................................Schedule I
EXHIBITS
Form of Class A-1 Note ..............................................................................Exhibit A-1
Form of Class A-2 Note...............................................................................Exhibit A-2
Form of Class A-3 Note...............................................................................Exhibit A-3
Form of Class A-4 Note...............................................................................Exhibit A-4
Form of Class B Note Exhibit B
Form of Class C Note Exhibit C
Form of Opinion of Counsel Pursuant to Section 3.6(a)..................................................Exhibit D
APPENDICES
Definitions and Usage.................................................................................Appendix A
ANNEXES
Form of Retail Installment Sale Contract.................................................................Annex A
INDENTURE, dated as of March 1, 2002 (as amended, supplemented
or otherwise modified and in effect from time to time, this "Indenture"),
between MMCA AUTO OWNER TRUST 2002-1, 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 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
2.00875% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 3.03% Class
A-2 Asset Backed Notes (the "Class A-2 Notes"), 4.15% 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"), 5.37% Class
B Asset Backed Notes (the "Class B Notes") and 6.20% Class C Asset Backed
Notes (the "Class C Notes" and, together with the Class A Notes and the
Class B Notes, the "Notes"), and the Swap Counterparty:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes and the Swap Counterparty, all of the Issuer's right, title and
interest in, to and under, whether now owned or existing or hereafter
acquired or arising:
(a) the Initial Receivables;
(b) with respect to Initial Receivables that are Actuarial
Receivables, monies due thereunder after the Initial Cutoff Date (including
Payaheads) and, with respect to Simple Interest Receivables, monies
received thereunder after the Initial Cutoff Date;
(c) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any other interest of the
Issuer in the Financed Vehicles;
(d) all rights to receive proceeds with respect to the Initial
Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the Financed Vehicles or Obligors;
(e) all rights to receive proceeds with respect to the Initial
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements;
(f) all of the Issuer's rights to the Receivable Files that
relate to the Initial Receivables;
(g) the Trust Accounts and all amounts, securities, financial
assets, investments and other property deposited in or credited to any of
the foregoing and all proceeds thereof;
(h) all rights under the Sale and Servicing Agreement and the
Yield Supplement Agreement;
(i) all rights under the Purchase Agreement, including the
right of the Seller to cause MMCA to repurchase Receivables from the
Seller;
(j) all payments and proceeds with respect to the Initial
Receivables held by the Servicer;
(k) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Issuer pursuant to the terms of an Initial Receivable that
is a Final Payment Receivable), guarantees and other collateral securing an
Initial Receivable (other than an Initial Receivable purchased by the
Servicer or repurchased by the Seller);
(l) all rebates of premiums and other amounts relating to
insurance policies and other items financed under the Initial Receivables
in effect as of the Initial Cutoff Date;
(m) all of the Issuer's rights in the Interest Rate Swap
Agreement; and
(n) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "Collateral").
The 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 Counterparty, all of the Issuer's right,
title and interest in, to and under, whether now owned or existing or
hereafter acquired or arising:
(a) the Subsequent Receivables;
(b) with respect to Subsequent Receivables that are Actuarial
Receivables, monies due thereunder on or after the related Subsequent
Cutoff Date (including Payaheads) and, with respect to Subsequent
Receivables that are Simple Interest Receivables, monies received
thereunder on or after the related Subsequent Cutoff Date;
(c) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Subsequent Receivables and any other interest of
the Issuer in the Financed Vehicles;
(d) all rights to receive proceeds with respect to the
Subsequent Receivables from claims on any physical damage, theft, credit
life or disability insurance policies covering the Financed Vehicles or
Obligors;
(e) all rights to receive proceeds with respect to such
Subsequent Receivables from recourse to Dealers thereon pursuant to the
Dealer Agreements;
(f) all rights to the Receivable Files that relate to such
Subsequent Receivables;
(g) all payments and proceeds with respect to such Subsequent
Receivables held by the Servicer;
(h) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Issuer pursuant to the terms of a Subsequent Receivable
that is a Final Payment Receivable), guarantees and other collateral
securing a Subsequent Receivable (other than a Subsequent Receivable
purchased by the Servicer or repurchased by the Seller);
(i) all of the Seller's rights under the related First-Tier
Subsequent Assignment;
(j) all rebates of premiums and other amounts relating to
insurance policies and other items financed under such Subsequent
Receivables in effect as of the related Subsequent Cutoff Date; and
(k) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of
any of the foregoing.
The foregoing 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 Counterparty under the Interest Rate Swap Agreement.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes and the Swap Counterparty, acknowledges such Grant,
accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Holders of the Notes and the Swap Counterparty may be adequately and
effectively protected.
ARTICLE I - DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also
contains rules as to usage that shall be applicable herein.
Section 1.2 Incorporated by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in
the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
ARTICLE II - THE NOTES
Section 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes, together with the Indenture Trustee's Certificates of
Authentication, shall be in substantially the form set forth in Exhibit
X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit B and Exhibit C,
respectively, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their
execution thereof. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of
the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibits X-0, X-0, X-0, X-0, B and C
hereto are part of the terms of this Indenture and are incorporated herein
by reference.
Section 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the Issuer by any
of its Responsible Officers. The signature of any such Responsible Officer
on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Responsible Officers of the Issuer shall
bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $151,000,000, Class A-2 Notes for original issue in an
aggregate principal amount of $384,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $369,000,000, Class A-4 Notes for
original issue in an aggregate principal amount of $522,800,000, Class B
Notes for original issue in an aggregate principal amount of $144,500,000
and Class C Notes for original issue in an aggregate principal amount of
$65,600,000. The aggregate principal amounts of Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes
outstanding at any time may not exceed those respective amounts except as
provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication.
The Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears
on such Note a certificate of authentication substantially in the form
provided for herein executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes pursuant to
Section 2.13, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that
are printed, lithographed, typewritten, mimeographed or otherwise produced,
of the tenor of the Definitive Notes in lieu of which they are issued and
with such variations not inconsistent with the terms of this Indenture as
the officers executing such Notes may determine, as evidenced by their
execution of such Notes. (b) If temporary Notes are issued pursuant to
Section 2.3(a), the Issuer shall cause Definitive Notes to be prepared
without unreasonable delay. After the preparation of Definitive Notes, the
temporary Notes shall be exchangeable for Definitive Notes upon surrender
of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer
shall execute, and the Indenture Trustee shall authenticate and deliver in
exchange therefor, a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
Section 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The
Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note (and each Note Owner by its acceptance of an interest
in the applicable Book-Entry Note), agree to treat the Notes for federal,
state and local income and franchise tax purposes as indebtedness of the
Issuer.
Section 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall
be the "Note Registrar" for the purpose of registering Notes and transfers
of Notes as herein provided. Upon any resignation of any Note Registrar,
the Issuer shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed
by the Issuer as Note Registrar, (i) the Issuer shall give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and
of the location and any change in the location, of the Note Register, (ii)
the Indenture Trustee shall have the right to inspect the Note Register at
all reasonable times and to obtain copies thereof and (iii) the Indenture
Trustee shall have the right to rely upon a certificate executed on behalf
of the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number
of such Notes.
(c) Upon surrender for registration of transfer of any Note at
the office or agency of the Issuer to be maintained as provided in Section
3.2, if the requirements of Section 8-401 of the Relevant UCC are met, the
Issuer shall execute, and the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes of the same
Class in any authorized denomination, of a like aggregate principal amount.
The Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-401 of the Relevant
UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for
other Notes of the same Class in any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange,
if the requirements of Section 8-401 of the Relevant UCC are met, the
Issuer shall execute, the Indenture Trustee shall authenticate, and the
Noteholder shall obtain from the Indenture Trustee, the Notes which the
Noteholder making such exchange is entitled to receive. The Indenture
Trustee may rely upon the Administrator with respect to the determination
of whether the requirements of Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture as
the Notes surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
(h) The preceding provisions of this Section 2.5
notwithstanding, the Issuer shall not be required to make and the Note
Registrar need not register transfers or exchanges of Notes selected for
redemption or of any Note for a period of 15 days preceding the due date
for any payment with respect to such Note.
(i) Each Person to whom a Note is transferred will be required
to represent, in the case of a Definitive Note, or deemed to represent, in
the case of a Book-Entry Note, that (x) such Person is not an employee
benefit plan, as described in section 3(3) of ERISA, or a plan, as defined
in section 4975(E)(1) of the Code, that is subject to Title I of ERISA or
to section 4975 of the Code, a government plan subject to any state or
local law similar to Title I of ERISA or section 4975 of the Code, or a
Person investing on behalf of or with "plan assets" of such a plan, or (y)
the Person's acquisition, holding and disposition of the Note are and will
be eligible for relief under a prohibited transaction exemption.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by it
to hold the Issuer and the Indenture Trustee harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Indenture Trustee that
such Note has been acquired by a protected purchaser, and provided that the
requirements of Section 8-405 of the Relevant UCC are met, the Issuer shall
execute, and upon its request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of the same Class; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become or within seven days of the Indenture Trustee's receipt
of evidence to its satisfaction of such destruction, loss or theft shall be
due and payable, or shall have been called for redemption, instead of
issuing a replacement Note of the same Class, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. The Indenture Trustee may rely
upon the Administrator with respect to the determination of whether the
requirements of Section 8-405 of the Relevant UCC are met. If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a protected
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the
Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking
such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
Section 2.6, the Issuer may require the payment by the Holder of such Note
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6
in replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Notes
duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of
and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Issuer, the Indenture
Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
Section 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions
from the Servicer pursuant to Section 4.6(c) of the Sale and Servicing
Agreement, the Indenture Trustee shall withdraw the Total Available Funds
on deposit in the Collection Account for the related Collection Period and
make the following payments and deposits for such Payment Date in the
following order of priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net Swap
Payments then due under the Interest Rate Swap Agreement (exclusive
of any Swap Termination Payments);
(iii) with the same priority and ratably, in accordance with
the outstanding balance of the Class A Notes and the amount of any
Swap Termination Payments due and payable by the Issuer to the Swap
Counterparty in respect of the Interest Rate Swap,
(A) to the Note Payment Account, the Accrued Note
Interest for the Class A Notes, and
(B) to the Swap Counterparty, any Swap Termination
Payments in respect of the Interest Rate Swap;
provided, that, if any amounts allocable to the Class A Notes are not
needed to pay interest due on such Notes, such amounts shall be applied to
pay the portion, if any, of any Swap Termination Payments remaining unpaid,
pro rata based on the amount of the Swap Termination Payments, and
provided, further, that if there are not sufficient funds available to pay
the entire amount of the Accrued Note Interest for the Class A Notes, the
amounts available shall be applied to the payment of such interest on the
Class A Notes on a pro rata basis;
(iv) to the Note Payment Account, the Accrued Note Interest
for the Class B Notes;
(v) to the Note Payment Account, the Accrued Note Interest
for the Class C Notes;
(vi) to the Note Payment Account, the Principal Distribution
Amount;
(vii) to the Reserve Account, the amount, if any, necessary
to reinstate the balance in the Reserve Account up to the Specified
Reserve Balance; and
(viii) 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 Class A Noteholders
pro rata in proportion to the Accrued Note Interest for each Class of
Class A Notes);
(ii) to the Class B Noteholders, Accrued Note Interest;
(iii) to the Class C Noteholders, Accrued Note Interest;
(iv) to the Class A-1 Noteholders, 100% of the Principal
Distribution Amount in reduction of principal until the Class A-1
Notes are paid in full;
(v) following payment in full of the Class A-1 Notes, the
Class A Percentage of the Principal Distribution Amount in reduction
of principal to the Class A-2 Noteholders until the Class A-2 Notes
are paid in full, then to the Class A-3 Noteholders until the Class
A-3 Notes are paid in full, then to the Class A-4 Noteholders until
the Class A-4 Notes are paid in full;
(vi) following payment in full of the Class A-1 Notes, the
Class B Percentage of the Principal Distribution Amount in reduction
of principal to the Class B Noteholders until the Class B Notes are
paid in full; and
(vii) following payment in full of the Class A-1 Notes, the
Class C Percentage of the Principal Distribution Amount in reduction
of principal to the Class C Noteholders until the Class C Notes are
paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent
not previously paid, will be due on the Class A-1 Stated Maturity Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid,
will be due on the Class A-2 Stated Maturity Date, the principal amount of
the Class A-3 Notes, to the extent not previously paid, will be due on the
Class A-3 Stated Maturity Date, the principal amount of the Class A-4
Notes, to the extent not previously paid, will be due on the Class A-4
Stated Maturity Date, the principal amount of the Class B Notes, to the
extent not previously paid, will be due on the Class B Stated Maturity
Date, and the principal amount of the Class C Notes, to the extent not
previously paid, will be due on the Class C Stated Maturity Date. (d) The
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class B Notes and the Class C Notes shall accrue interest at the
Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate,
the Class B Rate and the Class C Rate, respectively, and such interest
shall be due and payable on each Payment Date. Interest on the Class A-1
Notes 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 A-2 Notes,
the Class A-3 Notes, the Class B Notes and the Class C Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months. Subject
to Section 3.1, any installment of interest or principal, if any, payable
on any Note that is punctually paid or duly provided for by the Issuer on
the applicable Payment Date shall be paid to the Person in whose name such
Note (or one or more Predecessor Notes) is registered on the Record Date by
check mailed first-class postage prepaid to such Person's address as it
appears on the Note Register on such Record Date; provided that, unless
Definitive Notes have been issued pursuant to Section 2.13, with respect to
Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment shall
be made by wire transfer in immediately available funds to the account
designated by such nominee, and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
related Stated Maturity Date (and except for the Redemption Price for any
Note called for redemption), which shall be payable as provided below. The
funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3. The Issuer shall pay all Accrued Note
Interest, including Interest Carryover Shortfalls, to the Persons who are
Noteholders on the Record Date for a particular Payment Date even if a
portion of such Accrued Note Interest relates to a different Payment Date.
(e) All principal payments on a Class of Notes shall be made
pro rata to the Noteholders entitled thereto. The Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such
Note shall be paid. Such notice shall be mailed or transmitted by facsimile
prior to such final Payment Date and shall specify that such final
installment shall be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemption of Notes shall be mailed to Noteholders as provided in Section
10.2.
(f) Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on
the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee or the Holders of Notes representing
not less than a majority of the principal amount of the Notes Outstanding
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2. On each Payment Date following acceleration of the
Notes, all amounts on deposit in the Note Payment Account shall be paid in
the following order of priority.
(i) first, to the Indenture Trustee for amounts due under
Section 6.7 and to the Owner Trustee for amounts due under Sections
8.1 and 8.2 of the Trust Agreement;
(ii) second, to the Servicer for amounts due and unpaid in
respect of Total Servicing Fees;
(iii) third, to the Swap Counterparty, the amount of the Net
Swap Payments then due under the Interest Rate Swap Agreement
(exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in
accordance with the outstanding principal amount of the Class A Notes
and the amount of any Swap Termination Payments due and payable by
the Issuer to the Swap Counterparty in respect of the Interest Rate
Swap, (1) to Noteholders of the Class A Notes, the Accrued Note
Interest ratably in proportion to Accrued Note Interest for each
Class of the Class A Notes, without preference or priority of any
kind, according to the amounts due and payable on the Class A Notes
for interest, and (2) to the Swap Counterparty, any Swap Termination
Payments;
(v) fifth, to Noteholders of the Class A Notes, the Accrued
Note Interest ratably in proportion to Accrued Note Interest for each
Class of the Class A Notes, without preference or priority of any
kind, according to the amounts due and payable on the Class A Notes
for interest;
(vi) sixth, to the Class A-1 Noteholders, the outstanding
principal amount of the Class A-1 Notes as of such Payment Date
(prior to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of the Class A-1
Notes has been paid in full;
(vii) seventh, to the Class A-2 Noteholders, the Class A-3
Noteholders and the Class A-4 Noteholders, the outstanding principal
amount of the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, respectively, pro rata in proportion to the respective
principal balances of each of such Classes as of such Payment Date
(prior to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of each of such
Classes has been paid in full;
(viii) eighth, to the Class B Noteholders, Accrued Note
Interest;
(ix) ninth, to the Class B Noteholders, the outstanding
principal amount of the Class B Notes as of such Payment Date (prior
to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of the Class B
Notes has been paid in full;
(x) tenth, to the Class C Noteholders, Accrued Note Interest;
(xi) eleventh, to the Class C Noteholders, the outstanding
principal amount of the Class C Notes as of such Payment Date (prior
to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of the Class C
Notes has been paid in full; and
(xii) twelfth, 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 Reinvestment 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 Reinvestment
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 Agreement, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture
Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section 3.3, that such Paying
Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons, or
otherwise disposed of as herein provided, and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code and any state
or local tax law with respect to the withholding from any payments
made by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in
connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order
direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which the sums were held by such Paying
Agent; and upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
(d) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two years after such amount has become due and payable shall
be discharged from such trust and be paid to the Issuer on Issuer Request;
and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the
extent of the amounts so paid to the Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall
at the expense and direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining shall be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense
and direction of the Issuer, any other reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such
repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a 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 (or, in the case of financing statements, authorize)
and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further
assurance and other instruments, and shall take such other action necessary
or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee, the Swap Counterparty and the
Noteholders in such Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to authorize any financing statement, continuation
statement or other instrument required to be authorized pursuant to this
Section 3.5.
Section 3.6 Opinions as to Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel substantially in the form attached hereto as Exhibit D.
(b) On or before March 31, in each calendar year, beginning in
2003, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and with respect to the authorization and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the authorization
and filing of any financing statements and continuation statements that
shall, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 31 in the following
calendar year.
Section 3.7 Performance of Obligations; Servicing of
Receivables. (a) The Issuer shall not take any action and shall use its
best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Trust Estate
or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of,
any such instrument or agreement, except as expressly provided in this
Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate,
including, but not limited to, filing or causing to be filed all financing
statements and continuation statements required to be filed under the
Relevant UCC by the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods provided for
herein and therein. Except as otherwise expressly provided therein, the
Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the Indenture
Trustee or the Holders of at least a majority of the principal amount of
the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an
Event of Servicing Termination under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the action, if any, the Issuer is
taking in respect of such default. If an Event of Servicing Termination
shall arise from the failure of the Servicer to perform any of its duties
or obligations under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall (subject
to the rights of the Indenture Trustee to direct such appointment pursuant
to Section 8.2 of the Sale and Servicing Agreement) appoint a successor
servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been
appointed or has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Indenture Trustee, without further action,
shall automatically be appointed the Successor Servicer. The Indenture
Trustee may resign as the Servicer by giving written notice of such
resignation to the Issuer and in such event shall be released from such
duties and obligations, such release not to be effective until the date a
new servicer enters into a servicing agreement with the Issuer as provided
below. Upon delivery of any such notice to the Issuer, the Issuer shall
obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer (other than the Indenture
Trustee) shall (i) be an established financial institution having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of automotive installment sale contracts and (ii) enter into a
servicing agreement with the Issuer having substantially the same
provisions as the provisions of the Sale and Servicing Agreement applicable
to the Servicer. If, within 30 days after the delivery of the notice
referred to above, the Issuer shall not have obtained such a new servicer,
the Indenture Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a Successor Servicer. In connection with any such
appointment, the Indenture Trustee may make such arrangements for the
compensation of such successor as it and such successor shall agree,
subject to the limitations set forth below and in the Sale and Servicing
Agreement, and in accordance with Section 8.2 of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with such successor for
the servicing of the Receivables (such agreement to be in form and
substance satisfactory to the Indenture Trustee). If the Indenture Trustee
shall succeed to the Servicer's duties as servicer of the Receivables as
provided herein, it shall do so in its individual capacity and not in its
capacity as Indenture Trustee and, accordingly, the provisions of Article
VI 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 2003), an Officer's Certificate
stating, as to the Responsible Officer signing such Officer's
Certificate, that:
(i) a review of the activities of the Issuer during such
year (or such shorter period, with respect to the first such
Officer's Certificate) and of its performance under this Indenture
has been made under such Responsible Officer's supervision; and
(ii) to the best of such Responsible Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year (or such shorter
period, with respect to the first such Officer's Certificate), or, if
there has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Responsible
Officer and the nature and status thereof.
Section 3.10 Consolidation, Merger, etc., of the Issuer;
Disposition of Subtrust Assets.
(a) The Issuer shall not consolidate or merge with or into any
other Person.
(b) Except as otherwise expressly permitted by this Indenture
or the other Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any material portion of the properties and
assets included in the Trust Estate to any Person.
Section 3.11 No Other Business. The Issuer shall not engage in
any business other than financing, acquiring, owning and pledging the
Receivables in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes.
Section 3.13 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including
Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII
thereof.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture and the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other
Person.
Section 3.15 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
Section 3.16 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
Section 3.17 Restricted Payments. The Issuer shall not,
directly or indirectly, (i) make any distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest
or security or (iii) set aside or otherwise segregate any amounts for any
such purpose; provided, however, that the Issuer may make, or cause to be
made, (x) payments to the Servicer, the Owner Trustee, the Swap
Counterparty and the Certificateholders as contemplated by, and to the
extent funds are available for such purpose under, the Sale and Servicing
Agreement or the Trust Agreement and (y) payments to the Indenture Trustee
pursuant to Section 1(a)(ii) of the Administration Agreement. The Issuer
shall not, directly or indirectly, make payments to or distributions from
the Collection Account except in accordance with this Indenture and the
other Basic Documents.
Section 3.18 Notice of Events of Default. The Issuer shall give
the Indenture Trustee, the Swap Counterparty and the Rating Agencies prompt
written notice of each Event of Default hereunder and of each default on
the part of any party to the Sale and Servicing Agreement, the Purchase
Agreement or the Interest Rate Swap Agreement with respect to any of the
provisions thereof.
Section 3.19 Removal of Administrator. For so long as any Notes
are Outstanding, the Issuer shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection therewith.
Section 3.20 Calculation Agent. (a) The Issuer agrees that for
so long as any of the Class A-4 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 Xxxxxx
Xxxxxxx Capital Services Inc. as Calculation Agent for purposes of
determining LIBOR for each Interest Accrual Period and Xxxxxx Xxxxxxx
Capital Services Inc. 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-4 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 the Swap Counterparty as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and
at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
the Notes, when either:
(A) all Notes of all Classes theretofore authenticated
and delivered (other than (i) Notes that have been destroyed, lost
or stolen and that have been replaced or paid as provided in
Section 2.6 and (ii) Notes for whose payment money has theretofore
been irrevocably deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(B) each of the following:
(1) all Notes not theretofore delivered to the
Indenture Trustee for cancellation have become
due and payable and the Issuer has irrevocably
deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the
United States of America (which will mature
prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient
to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to
the applicable Stated Maturity Date or
Redemption Date (if Notes shall have been called
for redemption pursuant to Section 10.1(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
Counterparty;
(ii) such deposit will not result in a breach or violation
of, or constitute an event of default under, any other agreement or
instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or on the
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 Counterparty of all
sums, if any, due or to become due to the Swap Counterparty under and in
accordance with this Indenture and the Interest Rate Swap Agreement, but
such monies need not be segregated from other funds except to the extent
required herein or in the Sale and Servicing Agreement or required by law.
Section 4.4 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to the Notes, all monies then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect
to such Notes shall, upon demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to
such monies.
ARTICLE V - REMEDIES
Section 5.1 Events of Default. "Event of Default," wherever
used herein, means the occurrence of any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for
a period of five days or more; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due
and payable, including with respect to each Class of Notes, the
Stated Maturity Date for such Class; or
(iii) default in the observance or performance of any
material covenant or agreement of the Issuer made in this Indenture
(other than a covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section 5.1 specifically
dealt with), or any representation or warranty of the Issuer made in
this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or
the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 60 days or in the case
of a materially incorrect representation and warranty 30 days, after
there shall have been given, by registered or certified mail, to the
Issuer by the Indenture Trustee or to the Issuer and the Indenture
Trustee by the Holders of not less than 25% of the principal amount
of the Notes Outstanding, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering
the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Issuer
to the entry of an order for relief in an involuntary case under any
such law, or the consent by the Issuer to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
any action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after
the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default which with the giving of notice and the lapse of
time would become an Event of Default under clause (iii), its status and
what action the Issuer is taking or proposes to take with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then and in
every such case the Indenture Trustee or the Holders of Notes representing
not less than a majority of the principal amount of the Notes Outstanding,
voting as a group, may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable. If an Event of Default specified in Section 5.1(iv) or (v) occurs,
all unpaid principal, together with all accrued and unpaid interest
thereon, of all the Notes, and all other amounts payable hereunder, shall
automatically become due and payable without any declaration or other act
on the part of the Indenture Trustee or any Holder of the Notes. In the
event of such declaration or automatic acceleration, the Indenture Trustee
shall give prompt written notice to the Swap Counterparty.
(b) At any time after a declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the amount due
has been obtained by the Indenture Trustee as hereinafter provided in this
Article V, the Holders of Notes representing a majority of the principal
amount of the Notes Outstanding, voting as a group, by written notice to
the Issuer and the Indenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder or
upon such Notes or under the Interest Rate Swap Agreement if the
Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel and other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Issuer covenants that if (i)
there is a default in the payment of any interest on any Note when the same
becomes due and payable, and such default continues for a period of five
days, or (ii) there is a default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, the Issuer shall, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Holders of the Notes, the whole
amount then due and payable on the Notes for principal and interest, with
interest upon the overdue principal at the applicable Note Interest Rate
and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest at the applicable Note
Interest Rate and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel and other amounts due and
owing to the Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of
an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon
the Notes and collect in the manner provided by law out of the property of
the Issuer or other obligor upon the Notes, wherever situated, the monies
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders and the Swap Counterparty by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right
vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or
its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor
upon the Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of
any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.3,
shall be entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and all other amounts due and owing to
the Indenture Trustee pursuant to Section 6.7), of the Swap
Counterparty and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes and the Swap Counterparty in
any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to pay all amounts
received with respect to the claims of the Noteholders, the Swap
Counterparty and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee, the Swap Counterparty or the Holders
of Notes allowed in any judicial proceedings relative to the Issuer,
its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to
make payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due and owing to the Indenture Trustee
pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder or of the Swap Counterparty any plan of
reorganization, arrangement, adjustment or composition affecting the Notes
or the Interest Rate Swap Agreement or the rights of any Noteholder or Swap
Counterparty to authorize the Indenture Trustee to vote in respect of the
claim of any Noteholder or Swap Counterparty in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production
thereof in any trial or other Proceedings relative thereto, and any such
action or Proceedings instituted by the Indenture Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable benefit
of the Holders of the Notes and the Swap Counterparty.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
Section 5.4 Remedies; Priorities. (a) If an Event of Default
shall have occurred and be continuing, the Indenture Trustee may, but shall
not be obligated to, do one or more of the following (subject to Section
5.5):
(i) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes the amounts
then payable and adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Trust Estate;
(iii) exercise any remedies of a secured party under the
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Noteholders and Swap Counterparty; and
(iv) sell or liquidate the Trust Estate or any portion
thereof or rights or interest therein at one or more public or
private sales called and conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or
otherwise liquidate the Trust Estate following an Event of Default,
other than an Event of Default described in Section 5.1(i) or (ii),
unless (A) the Holders of 100% of the principal amount of the Notes
Outstanding, voting as a group, consent thereto, (B) the proceeds of
such sale or liquidation are sufficient to pay in full the principal
of and the accrued interest on the outstanding Notes and all payments
due and payable (including any Swap Termination Payments) pursuant to
the Interest Rate Swap Agreement or (C) the Indenture Trustee
determines that the Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been
declared due and payable, and the Indenture Trustee obtains the
consent of Holders of 66 2/3% of the principal amount of the Notes
Outstanding, voting as a group. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C) above, the
Indenture Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Estate for such purpose.
(b) Notwithstanding the foregoing, if an Event of Default
specified in Section 5.1(i) shall have occurred and be continuing and the
Notes shall have been accelerated under Section 5.2(a),
(i) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would be
sufficient to discharge in full the principal of and accrued interest
on the Notes and to make all payments (including any Swap Termination
Payments) pursuant to the Interest Rate Swap Agreement, the Indenture
Trustee shall sell or liquidate the Trust Estate or any portion
thereof or rights or interest therein at one or more public or
private sales called and conducted in any manner permitted by law; or
(ii) if the Indenture Trustee determines that the net
proceeds of a sale or liquidation of the Trust Estate would not be
sufficient to discharge in full the principal of and accrued interest
on the Notes and to make all payments (including any Swap Termination
Payments) owing to the Swap Counterparty under the Interest Rate Swap
Agreement, the Indenture Trustee may sell or liquidate the Trust
Estate at one or more public or private sales called and conducted in
any manner permitted by law if the Indenture Trustee obtains the
consent of Holders of 66 2/3% of the principal amount of the Notes
Outstanding, voting as a group.
(c) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
order of priority set forth in Section 2.8(f).
(d) The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section 5.4. At least
15 days before such record date, the Issuer shall mail to each Noteholder
and the Indenture Trustee a notice that states the record date, the payment
date and the amount to be paid.
Section 5.5 Optional Preservation of the Receivables. Subject
to Section 5.4(b), if the Notes have been declared to be due and payable
under Section 5.2 following an Event of Default, and such declaration and
its consequences have not been rescinded and annulled, the Indenture
Trustee may, but need not, elect to maintain possession of the Trust Estate
and apply proceeds as if there had been no declaration of acceleration;
provided, however, that Total Available Funds shall be applied in
accordance with such declaration of acceleration in the manner specified in
Section 4.6(c) of the Sale and Servicing Agreement. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes and any
amounts owing to the Swap Counterparty, and the Indenture Trustee shall
take such desire into account when determining whether or not to maintain
possession of the Trust Estate. In determining whether to maintain
possession of the Trust Estate, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such
purpose.
Section 5.6 Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount of
the Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own
name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes or to obtain or to seek
to obtain priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the principal amount of
the Notes Outstanding, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute
and unconditional, to receive payment of the principal of and interest on,
if any, such Note on or after the respective due dates thereof expressed in
such Note or in this Indenture (or, in the case of redemption, on or after
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to the Indenture Trustee or to such Noteholder, then and in every
such case the Issuer, the Indenture Trustee and the Noteholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights
and remedies of the Indenture Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or
Event of Default or any acquiescence therein. Every right and remedy given
by this Article V or by law to the Indenture Trustee or to the Noteholders
may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may
be.
Section 5.11 Control by Noteholders. The Holders of a majority
of the principal amount of the Notes Outstanding shall have the right to
direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided
that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Trust Estate shall be by
Holders of Notes representing not less than 100% of the principal amount of
the Notes Outstanding;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee by
Holders of Notes representing less than 100% of the principal amount of the
Notes Outstanding to sell or liquidate the Trust Estate shall be of no
force and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.1, the Indenture Trustee need not take any action that
it reasonably believes might involve it in costs, expenses and liabilities
for which it will not be adequately indemnified or might materially
adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12 Waiver of Past Default. Prior to the declaration
of the acceleration of the maturity of the Notes as provided in Section
5.2, the Holders of Notes representing not less than a majority of the
principal amount of the Notes Outstanding, voting as a group, may waive any
past Default or Event of Default and its consequences except a Default or
Event of Default (a) in the payment of principal of or interest on any of
the Notes or (b) in respect of a covenant or provision hereof that cannot
be amended, supplemented or modified without the consent of the Holder of
each Note. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Holders of the Notes shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Upon any such waiver, such Default or Event of Default shall
cease to exist and be deemed to have been cured and not to have occurred,
and any Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorney's fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
5.13 shall not apply to (a) any suit instituted by the Indenture Trustee,
(b) any suit instituted by any Noteholder or group of Noteholders, in each
case holding in the aggregate more than 10% of the principal amount of the
Notes Outstanding or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall not at
any time insist upon, or plead or in any manner whatsoever, claim or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture, and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under
or with respect to this Indenture. Neither the lien of this Indenture nor
any rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against
the Issuer or by the levy of any execution under such judgment upon any
portion of the Trust Estate or upon any of the assets of the Issuer. Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.4(c).
Section 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to
do so, and at the Administrator's expense, the Issuer shall take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the
Sale and Servicing Agreement or by the Seller of each of its obligations
under or in connection with the Purchase Agreement, and to exercise any and
all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Sale and Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the
Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting
as a group, shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Seller or the Servicer under or in
connection with the Sale and Servicing Agreement, or against the Seller
under or in connection with the Purchase Agreement, including the right or
power to take any action to compel or secure performance or observance by
the Seller or the Servicer, as the case may be, of each of their
obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension, or waiver under the Sale and
Servicing Agreement or the Purchase Agreement, as the case may be, and any
right of the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to
do so, and at the Administrator's expense, the Issuer agrees to take all
such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by MMCA of each of its obligations to the
Seller under or in connection with the Purchase Agreement in accordance
with the terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in
connection with the Purchase Agreement to the extent and in the manner
directed by the Indenture Trustee, including the transmission of notices of
default on the part of the Seller thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by
MMCA of each of its obligations under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting
as a group, shall exercise all rights, remedies, powers, privileges and
claims of the Seller against MMCA under or in connection with the Purchase
Agreement, including the right or power to take any action to compel or
secure performance or observance by MMCA of each of its obligations to the
Seller thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Purchase Agreement, and any rights
of the Seller to take such action shall be suspended.
(e) Promptly following a request from the Indenture Trustee to
do so, and at the Administrator's expense, the Issuer shall take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparty in accordance with the
Interest Rate Swap Agreement and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in
connection with the Interest Rate Swap Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of
notices of default thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by
the Swap Counterparty of its obligations under the Interest Rate Swap
Agreement.
(f) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Noteholders of Notes evidencing not less than 66 2/3% of the principal
amount of the Controlling Note Class shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Swap Counterparty
including the right or power to take any action to compel or secure
performance or observance by the Swap Counterparty of their obligations to
the Issuer under the Interest Rate Swap Agreement and to give any consent,
request, notice, direction, approval, extension, or waiver under the
Interest Rate Swap Agreement and any right of the Issuer to take such
action shall be suspended.
ARTICLE VI - THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and, if required by
the terms of this Indenture, conforming to the requirements of this
Indenture; however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, negligent failure to act, willful misconduct
or bad faith, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to paragraphs (a), (b), (c), (e) and
(g) of this Section 6.1.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the
terms of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section 6.1 and to the
provisions of the TIA.
(i) The Indenture Trustee shall not be charged with knowledge
of any Event of Default unless either (1) a Responsible Officer shall have
actual knowledge of such Event of Default or (2) written notice of such
Event of Default shall have been given to the Indenture Trustee in
accordance with the provisions of this Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Indenture Trustee need
not investigate any fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officer's Certificate or Opinion of
Counsel unless it is proved that the Indenture Trustee was negligent in
such reliance.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the
part of, or for the supervision of, any such agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or
omission by the Indenture Trustee does not constitute willful misconduct,
negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document, but
the Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney.
Section 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent
hereunder may do the same with like rights.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee (i) shall not be responsible for, and makes no representation, as
to the validity or adequacy of this Indenture or the Notes and (ii) shall
not be accountable for the Issuer's use of the proceeds from the Notes, or
responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes
other than the Indenture Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of such
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments
pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the
notice is in the interests of Noteholders.
Section 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not
later than the latest date permitted by law, in each case as determined by
the Servicer, the Indenture Trustee shall deliver to each Person who at any
time during the preceding calendar year was a Noteholder a statement
prepared by the Servicer pursuant to Section 3.9 of the Sale and Servicing
Agreement containing the information which is required to be expressed in
the Payment Date statements as a dollar amount per $1,000 of original
denomination of the Notes or Class of Notes, as applicable, aggregated for
such calendar year, for the purposes of such Noteholder's preparation of
Federal income tax returns.
Section 6.7 Compensation and Indemnity. (a) The Issuer shall, or shall
cause the Administrator to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall, or shall cause the Administrator to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall, or
shall cause the Administrator to, indemnify the Indenture Trustee against
any and all loss, liability or expense (including attorneys' fees) incurred
by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Administrator promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to,
defend any such claim, and the Indenture Trustee may have separate counsel
and the Issuer shall, or shall cause the Servicer to, pay the fees and
expenses of such counsel. Neither the Issuer nor the Administrator need
reimburse any expense or indemnity against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own
willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the resignation or removal of
the Indenture Trustee and the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v) with respect to the Issuer, the
expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Section 6.8 Replacement of Indenture Trustee. (a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section
6.8. Subject to the preceding sentence, the Indenture Trustee may resign at
any time by so notifying the Issuer. The Holders of a majority in principal
amount of the Notes Outstanding, voting as a group, may remove the
Indenture Trustee without cause by so notifying the Indenture Trustee and
the Issuer and the Issuer may appoint a successor Indenture Trustee. The
Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer, and shall concurrently deliver a copy of such acceptance to the
Swap Counterparty. Thereupon, the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders. The retiring Indenture Trustee
shall promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
(c) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the Holders of a majority in
principal amount of the Notes Outstanding may petition any court of
competent jurisdiction to appoint a successor Indenture Trustee. If the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction to remove the Indenture
Trustee and to appoint a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's and the Administrator's
obligations under Section 6.7 shall continue for the benefit of the
retiring Indenture Trustee.
Section 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11.
The Indenture Trustee shall provide the Rating Agencies with prior written
notice of any such transaction.
(b) If at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Notes so authenticated, and if at that time any
of the Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture
Trustee. In all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Indenture Trustee shall have the power and may execute and
deliver an instrument to appoint one or more Persons to act as a co-trustee
or co-trustees, or separate trustee or separate trustees, of all or any
part of the Trust Estate, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders and the Swap Counterparty,
such title to the Trust Estate, or any part hereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8 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 90 days after ascertaining the occurrence of an
Event of Default which shall not have been cured or waived, unless
authorized by the Commission, the Indenture Trustee shall resign with
respect to the Class A Notes, the Class B Notes and/or the Class C Notes in
accordance with Section 6.8 of this Indenture, and the Issuer shall appoint
a successor Indenture Trustee for one or both of such Classes, as
applicable, so that there will be separate Indenture Trustees for the Class
A Notes, the Class B Notes and the Class C Notes. In the event the
Indenture Trustee fails to comply with the terms of the preceding sentence,
the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA
Section 310(b).
(c) In the case of the appointment pursuant to this Section
6.11 of a successor Indenture Trustee with respect to any Class of Notes,
the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee with respect to such Class of Notes shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee
shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest
in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the
Class to which the appointment of such successor Indenture Trustee relates,
(ii) if the retiring Indenture Trustee is not retiring with respect to all
Classes of Notes, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of each
Class as to which the retiring Indenture Trustee is not retiring shall
continue to be vested in the Indenture Trustee and (iii) shall add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Indenture Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Indenture Trustees
co-trustees of the same trust and that each such Indenture Trustee shall be
a trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Indenture Trustee; and
upon the removal of the retiring Indenture Trustee shall become effective
to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated.
Section 6.13 Pennsylvania Motor Vehicle Sales Finance Act
Licenses. The Indenture Trustee shall use its best efforts to maintain the
effectiveness of all licenses required under the Pennsylvania Motor Vehicle
Sales Finance Act in connection with this Indenture and the transactions
contemplated hereby until the lien and security interest of this Indenture
shall no longer be in effect in accordance with the terms hereof.
Section 6.14 Interest Rate Swap Provisions.(a) The Issuer has
entered into an Interest Rate Swap Agreement, in a form satisfactory to the
Rating Agencies, to hedge the floating rate interest expense on the Class
A-4 Notes. The Issuer may, from time to time, enter into one or more
replacement Interest Rate Swap Agreement with one or more replacement Swap
Counterparties in the event that the Interest Rate Swap Agreement is
terminated prior to its scheduled expiration pursuant to an Event of
Default or Termination Event (each such term as defined in the Interest
Rate Swap Agreement). The notional amount of the Interest Rate Swap hedging
the interest expense on the Class A-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.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swap will rank senior
to interest payments on the Class A Notes and Class A Swap Termination
Payments will rank pari passu with interest payments on the Class A Notes,
as set forth in Section 8.2 hereof and Section 4.6 of the Sale and
Servicing Agreement.
(c) The Indenture Trustee will be responsible for remitting Net
Swap Payments and any Swap Termination Payments payable to the Swap
Counterparty and for collecting the Net Swap Receipts and any Swap
Termination Payments payable to the Issuer, as applicable, on each Payment
Date.
(d) In the event that the Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of
the Interest Rate Swap Agreement, the Indenture Trustee, upon written
request of the Administrator, shall establish individual collateral
accounts and will hold any securities deposited therein in trust and will
invest any cash amounts in accordance with the provisions of the Interest
Rate Swap Agreement.
(e) The Administrator shall calculate and provide written
notification to the Swap Counterparty and to the Indenture Trustee of the
notional amount of the Interest Rate Swap as of each Payment Date on or
before the twelfth day of the month of the related Payment Date. The
Administrator shall also obtain the calculation of LIBOR from the
Calculation Agent under this Agreement and shall calculate the amount, for
each Payment Date, of all Net Swap Payments, Net Swap Receipts, and Swap
Termination Payments payable on each Payment Date and shall provide written
notification of such amounts to the Swap Counterparty and to the Indenture
Trustee prior to such Payment Date. At least five days before the effective
date of any proposed amendment or supplement to the Interest Rate Swap
Agreement, the Administrator shall provide the Rating Agencies with a copy
of such amendment or supplement. Unless the amendment or supplement
clarifies any term or provision, corrects any inconsistency, cures any
ambiguity, or corrects any typographical error in the Interest Rate Swap
Agreement, an amendment or supplement to the Interest Rate Swap Agreement
will be effective only after satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of the Interest
Rate Swap Agreement due to an Event of Default or Termination Event (as
each such term is defined in such Interest Rate Swap Agreement), the Issuer
will use reasonable efforts to enter into a replacement interest rate swap
agreement on terms similar to those of the Interest Rate Swap Agreement
with an eligible swap counterparty unless the Indenture Trustee sells the
Indenture Trust Estate pursuant to Section 5.4(a)(iv). The Issuer shall
take action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparty of its obligations
under the Interest Rate Swap Agreement, as provided in Section 5.16(e) and
5.16(f).
(g) The Interest Rate Swap Agreement shall provide that a
termination event will occur thereunder if:
(i) the long-term rating of Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
is suspended, withdrawn or downgraded below a rating of "A2" by
Xxxxx'x and, within 30 days of such suspension, withdrawal or
downgrade the Swap Counterparty fails to (1) deliver or post
collateral reasonably acceptable to the Issuer and acceptable to
Xxxxx'x in amounts sufficient or in accordance with the standards of
Xxxxx'x (as such standards may be modified while any transaction is
still outstanding) to secure its obligations under the interest rate
swap agreement, (2) assign its rights and obligations under the
Interest Rate Swap Agreement to a replacement counterparty reasonably
acceptable to the Issuer and to Xxxxx'x or (3) establish other
arrangements necessary, if any, (including, without limitation,
causing an entity with ratings such that if the Swap Counterparty or
its credit support provider had such ratings, the suspension,
withdrawal or downgrade would not have occurred, to guarantee or
provide an indemnity in respect of the Swap Counterparty's or its
credit support provider's obligations under the Interest Rate Swap
Agreement in form and substance reasonably satisfactory to Xxxxx'x)
in each case so that Xxxxx'x confirms the ratings of the Class A-4
Notes that were in effect immediately prior to such suspension,
withdrawal or downgrade;
(ii) the short-term rating of Xxxxxx Xxxxxxx Xxxx Xxxxxx &
Co. is downgraded below a rating of "A-1" by S&P and the Swap
Counterparty fails to (1) use reasonable efforts to assign (at its
own cost or benefit) its rights and obligations under the Interest
Rate Swap Agreement to a replacement counterparty acceptable to the
Issuer and to S&P and (2) if such an assignment has not occurred
within 30 days of such downgrade, fail to deliver or post collateral
reasonably acceptable to the Issuer and sufficient to satisfy the
Rating Agency Condition with respect to S&P (as designated in an
approved credit support annex) to secure its obligations under the
Interest Rate Swap Agreement; provided, that notwithstanding the
posting of the collateral and the addition of the credit support
annex, the Swap Counterparty shall continue to use reasonable efforts
to assign its rights and obligations under the Interest Rate Swap
Agreement to a replacement counterparty; or
(iii) the long-term rating or the short-term rating of
Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co. is suspended, withdrawn or
downgraded below a rating of "A" or "F1," respectively, by Fitch
Ratings and, within 30 days of such suspension, withdrawal or
downgrade the Swap Counterparty fails to (1) deliver or post
collateral reasonably acceptable to the Issuer and acceptable to
Fitch Ratings in amounts sufficient or in accordance with the
standards of Fitch Ratings (as such standards may be modified while
any transaction is still outstanding) to secure its obligations under
the Interest Rate Swap Agreement, (2) assign its rights and
obligations under the Interest Rate Swap Agreement to a replacement
counterparty reasonably acceptable to the Issuer and to Fitch Ratings
or (3) establish other arrangements necessary, if any, (including,
without limitation, causing an entity with ratings such that if the
Swap Counterparty or its credit support provider had such ratings,
the suspension, withdrawal or downgrade would not have occurred, to
guarantee or provide an indemnity in respect of the Swap
Counterparty's or its credit support provider's obligations under the
Interest Rate Swap Agreement in form and substance reasonably
satisfactory to Fitch Ratings) in each case so that Fitch Ratings
confirms the ratings of the Class A-4 Notes that were in effect
immediately prior to such suspension, withdrawal or downgrade.
ARTICLE VII - NOTEHOLDERS' LISTS; REPORTING
Section 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished
to the Indenture Trustee (a) not more than five days after each Record
Date, a list, in such form as the Indenture Trustee may reasonably require,
of the names and addresses of the Holders of Notes as of such Record Date
and (b) at such other times as the Indenture Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than ten days prior
to the time such list is furnished; provided, however, that so long as (i)
the Indenture Trustee is the Note Registrar or (ii) the Notes are issued as
Book-Entry Notes, no such list shall be required to be furnished.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee
as provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
Section 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to
time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions
and covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.3(a) and by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall correspond to the calendar year.
Section 7.4 Reporting and Notices by Indenture Trustee. (a) If
required by TIA Section 313(a), within 60 days after each March 31,
beginning with March 31, 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(d) and 4.1(e) of the Sale and Servicing
Agreement.
(b) On or before each Payment Date, the Servicer shall deposit
in the Collection Account all amounts required to be deposited therein with
respect to the related Collection Period as provided in Sections 4.2 and
4.4 of the Sale and Servicing Agreement. On or before each Payment Date,
all amounts required to be deposited in the Note Payment Account with
respect to the related Collection Period pursuant to Sections 4.6 and 4.7
of the Sale and Servicing Agreement shall be withdrawn by the Indenture
Trustee from the Collection Account and/or the Reserve Account and
deposited to the Note Payment Account for payment to Noteholders in
accordance with Section 2.8 on such Payment Date. The Indenture Trustee
shall direct the Swap Counterparty to deposit, and shall otherwise cause to
be deposited on each Payment Date, any Net Swap Receipts then due and
payable in the Collection Account. In addition, the Indenture Trustee shall
direct the Swap Counterparty to deposit, and shall otherwise cause to be
deposited, all Swap Termination Payments paid by the Swap Counterparty to
the Trust into the Collection Account; provided, that, upon direction of
the Issuer, the Indenture Trustee may retain a part or all of such Swap
Termination Payments to be applied as an initial payment to a replacement
Swap Counterparty, and provided further that the Indenture Trustee shall
promptly deposit any retained amounts that are not so applied to the
Collection Account.
Section 8.3 General Provisions Regarding Accounts. (a) So long
as no Default or Event of Default shall have occurred and be continuing,
all or a portion of the funds in the Collection Account, the Pre-Funding
Account, the Reinvestment 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 Reinvestment 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
Reinvestment Account, the Reserve Account, the Negative Carry Account and
the Yield Supplement Account) as provided in Sections 4.1, 4.7, 4.11, 4.12
and 5.1 of the Sale and Servicing Agreement. The Servicer shall not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the
Indenture Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the
Trust Accounts resulting from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture Trustee's failure
to make payments on such Permitted Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
(c) If (i) the Servicer shall have failed to give investment
directions to the Indenture Trustee by 11:00 a.m., New York Time (or such
other time as may be agreed by the Issuer and Indenture Trustee), on the
Business Day preceding each Payment Date for any funds on deposit in the
Collection Account, the Pre-Funding Account, the Reinvestment 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 the Interest Rate Swap Agreement have
been paid in full, release any remaining portion of the Trust Estate that
secured the Notes and the Interest Rate Swap Agreement from the lien of
this Indenture and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Trust Accounts. The Indenture
Trustee shall release property from the lien of this Indenture pursuant to
this Section 8.4(b) only upon receipt of (i) an Issuer Request accompanied
by confirmation that all amounts owing by the Issuer under the Interest
Rate Swap Agreement have been paid, an Officer's Certificate and an Opinion
of Counsel, in each case stating that all conditions precedent, if any,
provided for in this Indenture relating to the release of the property from
the lien of this Indenture have been complied with, provided that counsel
rendering any such opinion may rely, without independent investigation, on
the accuracy and validity of any certificate or other instrument delivered
to the Indenture Trustee in connection with any such action and (ii) if
required by the TIA, Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
Section 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, except in
connection with any action contemplated by Section 8.4(b), as a condition
to such action, an Opinion of Counsel, in form and substance satisfactory
to the Indenture Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all
conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for
the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX - SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee,
when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture which will not be inconsistent
with other provisions of the Indenture; provided, that such action
shall not materially adversely affect the interests of the
Noteholders or adversely affect the rights or obligations of the Swap
Counterparty under the Interest Rate Swap Agreement, or modify or
impair the ability of the Issuer to fully perform any of its
obligations under the Interest Rate Swap Agreement (and, so long as a
copy of the proposed amendment or supplement has been delivered to
each of the parties listed in Section 11.4(c) with respect to the
Swap Counterparty and makes clear that the Swap Counterparty has no
longer than 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 the Swap
Counterparty under the Interest Rate Swap Agreement or modify the
obligations of, or impair the ability of the Issuer to fully perform any of
its obligations under the Interest Rate Swap Agreement or (y) the Swap
Counterparty shall have consented thereto (so long as a copy of the
proposed amendment or supplement has been delivered to each of the parties
listed in Section 11.4(c) with respect to the Swap Counterparty and makes
clear that the Swap Counterparty has no longer than 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 the Swap Counterparty a copy of such
supplemental indenture and to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive and, subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and
that all conditions precedent to the execution and delivery of such
supplemental indenture have been satisfied. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer
and the Holders of the Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the Trust
Indenture Act as then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
Section 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
ARTICLE X - REDEMPTION OF NOTES
Section 10.1 Redemption. (a) (a) The Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer
pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on any
Payment Date on which the Servicer exercises its option to purchase the
assets of the Issuer pursuant to said Section 9.1(a), and the amount paid
by the Servicer shall be treated as collections of Receivables and applied
to pay the unpaid principal amount of the Notes plus accrued and unpaid
interest thereon and the Certificate Balance. The Servicer or the Issuer
shall furnish the Rating Agencies and the Noteholders notice of such
redemption. If the Notes are to be redeemed pursuant to this Section
10.1(a), the Servicer or the Issuer shall furnish notice of such election
to the Indenture Trustee not later than 20 days prior to the Redemption
Date and the Issuer shall deposit by 10:00 A.M. (New York City time) on the
Redemption Date with the Indenture Trustee in the Note Payment Account the
Redemption Price of the Notes to be redeemed, whereupon all such Notes
shall be due and payable on the Redemption Date.
(b) In the event that on or prior to the Payment Date on which
the Pre-Funding Period ends (or, if the Pre-Funding Period does not end on
a Payment Date, the immediately succeeding Payment Date) the Remaining
Pre-Funded Amount has been withdrawn from the Pre-Funding Account and
deposited to the Collection Account by the Indenture Trustee at the
direction of the Servicer pursuant to Section 4.11(b) of the Sale and
Servicing Agreement, the Remaining Pre-Funded Amount shall be treated as a
part of the Available Funds and the Principal Distribution Amount for such
Payment Date.
(c) In the event that on or prior to the Payment Date on which
the Reinvestment Period ends (or, if the Reinvestment Period does not end
on a Payment Date, the immediately succeeding Payment Date) the Excess
Reinvestment Amount has been withdrawn from the Reinvestment Account and
deposited to the Collection Account by the Indenture Trustee at the
direction of the Servicer pursuant to Section 4.13(c) of the Sale and
Servicing Agreement, the Excess Reinvestment 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 days prior to the applicable
Redemption Date, to each Holder of Notes as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's
address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer; provided,
that in the case of a redemption pursuant to Section 10.1(b) or Section
10.1(c), no notice shall be required to be given to Noteholders. Failure to
give any required notice of redemption, or any defect therein, to any
Holder of any Note shall not impair or affect the validity of the
redemption of any other Note.
Section 10.3 Notes Payable on Redemption Date. The Notes to be
redeemed shall, following notice of redemption as required by Section 10.2
(in the case of redemption pursuant to Section 10.1(a)), on the Redemption
Date become due and payable at the Redemption Price and (unless the Issuer
shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to
take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting
the applicable requirements of this Section 11.1, except that, in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express
an informed opinion as to whether or not such covenant or
condition has been complied with; and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the property or securities to be so deposited and of
all other such property or securities made the basis of any such
withdrawal or release since the commencement of the then-current
fiscal year of the Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is 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 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 2002-1,
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
with a copy to the Administrator at:
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
or at any other address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the Indenture
Trustee.
(c) Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee, the Owner Trustee or the initial Swap
Counterparty shall be in writing, personally delivered, sent by facsimile
or mailed by certified mail, return receipt requested, to
in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
in the case of S&P, at the following address:
Standard & Poor's Ratings Service
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X'Xxxx
Fax: (000) 000-0000
in the case of Fitch Ratings, at the following address:
Fitch Ratings
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Fax: (000) 000-0000
in the case of the initial Swap Counterparty as of the
Closing Date, at the following address:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Fixed Income Derivatives -
Transaction Management Manager
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
1221 Avenue of the Americas, 00xx Xxxxx
Xxxxx Xxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx (Fixed Income Derivatives)
Fax: (000) 000-0000
and with a copy to:
Xxxxxx Xxxxxxx Capital Services
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income Derivatives - Corporate Derivatives
Group Manager
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 Counterparty and any other party secured hereunder, and any other
Person with an ownership interest in any part of the Trust Estate, any
benefit or any legal or equitable right, remedy or claim under this
Indenture; provided, that the Swap Counterparty shall have no right to
institute any Proceeding, judicial or otherwise, with respect to
enforcement of remedies under Article V of this Indenture upon the
occurrence of an Event of Default.
Section 11.12 Legal Holiday. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes or this Indenture) payment need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date on which nominally due,
and no interest shall accrued for the period from and after any such
nominal date.
Section 11.13 Governing Law. This Indenture shall be construed
in accordance with the laws of the State of New York without reference to
its conflict of laws provisions (other than section 5-1401 OF the general
obligations law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 11.14 Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 11.15 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to the Indenture Trustee) to the effect
that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of
any right or remedy granted to the Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities), and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all
purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Article VI, VII
and VIII of the Trust Agreement.
Section 11.17 No Petition; Subordination; Claims Against
Seller. The Indenture Trustee, by entering into this Indenture, and each
Noteholder or Note Owner, by accepting a Note or beneficial interest in a
Note, as the case may be, hereby covenant and agree that (a) they will not
at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents, (b) any claim that they may have
at any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, and any claim they have at any time against the Seller that they may
seek to enforce against the Subtrust Assets of any Subtrust unrelated to
the Notes, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders
of any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust and (c) they hereby irrevocably make the election
afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i) to secured
creditors to receive the treatment afforded by Title 00 Xxxxxx Xxxxxx Code
Section 1111(b)(2) with respect to any secured claim that they may have at
any time against the Seller. The obligations of the Seller under this
Indenture are limited to the related Subtrust and the related Subtrust
Assets.
Section 11.18 Inspection. The Issuer agrees that, with
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the
books of account, records, reports and other papers of the Issuer, to make
copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
Independent certified public accountants, all at such reasonable times and
as often as may be reasonably requested. The Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
Section 11.19 Employee Benefit Plans. Each Plan that acquires a
Note, by its acceptance of the Note, shall be deemed to represent that its
acquisition, holding and disposition of the Note does not give rise to a
prohibited transaction for which no exemption is available.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2002-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
--------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
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
Reinvestment 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 $151,000,000
No. R-1 CUSIP NO. 553083 CD 6
MMCA AUTO OWNER TRUST 2002-1
2.00875% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 ONE HUNDRED FIFTY ONE 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 March 1,
2002 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the March
2003 Payment Date (the "Class A-1 Stated Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture. In addition,
the unpaid principal amount of this Note may be redeemed pursuant to
Section 10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the
Pre-Funding Period and of funds remaining in the Reinvestment Account upon
the termination of the Reinvestment Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the previous
Payment Date (or, in the case of the initial Payment Date, or if no
interest has been paid, from and including the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of the
actual number of days elapsed and a 360-day year. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: __________________________________
Responsible Officer
This Class A-1 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 2.00875% Class A-1 Asset Backed Notes,
which, together with the Class A-2 Asset-Backed Notes, the Class A-3
Asset-Backed Notes, the Class A-4 Asset-Backed Notes, the Class B
Asset-Backed Notes and the Class C Asset-Backed Notes (collectively, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to
all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-1
Notes are equal in right of payment to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, senior in right of payment to the Class B
Notes and the Class C Notes and subordinate to the rights of the Swap
Counterparty to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement, to the extent provided in the
Indenture.
Principal of the Class A-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 April 15, 2002.
As described above, the entire unpaid principal amount of this
Class A-1 Note shall be due and payable on the earlier of the Class A-1
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-1 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period and funds remaining
in the Reinvestment Account upon termination of the Reinvestment 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 Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-1
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-1 Note and of
any Class A-1 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-1 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 $384,000,000
No. R-1 CUSIP NO. 553083 CE 4
MMCA AUTO OWNER TRUST 2002-1
3.03% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 EIGHTY 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 March 1,
2002 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the January
2005 Payment Date (the "Class A-2 Stated Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture. In addition,
the unpaid principal amount of this Note may be redeemed pursuant to
Section 10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the
Pre-Funding Period and of funds remaining in the Reinvestment Account upon
the termination of the Reinvestment Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 15th of
the previous month (or, in the case of the initial Payment Date, or if no
interest has been paid, from the Closing Date) to the 14th of the month of
such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
This Class A-2 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 3.03% Class A-2 Asset Backed Notes, which,
together with the Class A-1 Asset-Backed Notes, the Class A-3 Asset-Backed
Notes, the Class A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and
the Class C Asset-Backed Notes (collectively, the "Notes"), are issued
under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-2
Notes are equal in right of payment to the Class A-1 Notes, the Class A-3
Notes and the Class A-4 Notes, senior in right of payment to the Class B
Notes and the Class C Notes and subordinate to the rights of the Swap
Counterparty to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement, to the extent provided in the
Indenture..
Principal of the Class A-2 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date"
means the fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing April 15, 2002.
As described above, the entire unpaid principal amount of this
Class A-2 Note shall be due and payable on the earlier of the Class A-2
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-2 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period and funds remaining
in the Reinvestment Account upon termination of the Reinvestment 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 Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-2
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-2 Note and of
any Class A-2 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-2 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 $369,000,000
CUSIP NO. 553083 CF 1
MMCA AUTO OWNER TRUST 2002-1
4.15% CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 SIXTY NINE 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 March 1,
2002 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the May 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 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 and of funds remaining in the Reinvestment Account upon
the termination of the Reinvestment Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 15th of
the previous month (or, in the case of the initial Payment Date, or if no
interest has been paid, from the Closing Date) to the 14th of the month of
such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
This Class A-3 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 4.15% Class A-3 Asset Backed Notes, which,
together with the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed
Notes, the Class A-4 Asset-Backed Notes, the Class B Asset-Backed Notes and
the Class C Asset-Backed Notes (collectively, the "Notes"), are issued
under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-3
Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-4 Notes, senior in right of payment to the Class B
Notes and the Class C Notes and subordinate to the rights of the Swap
Counterparty to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement, to the extent provided in the
Indenture..
Principal of the Class A-3 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date"
means the fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing April 15, 2002.
As described above, the entire unpaid principal amount of this
Class A-3 Note shall be due and payable on the earlier of the Class A-3
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-3 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period and funds remaining
in the Reinvestment Account upon termination of the Reinvestment 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 Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-3
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-3 Note and of
any Class A-3 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-3 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 $522,800,000
No. R-1 CUSIP NO. 553083 CG 9
MMCA AUTO OWNER TRUST 2002-1
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 FIVE HUNDRED TWENTY-TWO MILLION
EIGHT 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 March 1, 2002 (as amended, supplemented or otherwise
modified and in effect from time to time, the "Indenture"), between the
Issuer and Bank of Tokyo-Mitsubishi Trust Company, a New York banking
corporation, as Indenture Trustee (in such capacity the "Indenture
Trustee"); provided, however, that if not paid prior to such date, the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the January 2010 Payment Date (the "Class A-4 Stated Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. In addition, the unpaid principal amount of this Note may be
redeemed pursuant to Section 10.1(b) of the Indenture to the extent of a
pro rata share of funds remaining in the Pre-Funding Account upon the
termination of the Pre-Funding Period and of funds remaining in the
Reinvestment Account upon the termination of the Reinvestment Period.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at a rate per annum
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 0.28% on the
principal amount of this 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 2.18% 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 Note is paid
or made available for payment. Interest on this Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case
of the initial Payment Date, or if no interest has been paid, from and
including the Closing Date) to but excluding such Payment Date. Interest
will be computed on the basis of the actual number of days elapsed and a
360-day year. Such principal of and interest on this Note shall be paid in
the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
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 Class A-1 Asset-Backed Notes, the Class A-2
Asset-Backed Notes, the Class A-3 Asset-Backed Notes, the Class B
Asset-Backed Notes and the Class C Asset-Backed Notes (collectively, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to
all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class A-4
Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, senior in right of payment to the Class B
Notes and the Class C Notes and subordinate to the rights of the Swap
Counterparty to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreement, to the extent provided in the
Indenture..
Principal of the Class A-4 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date"
means the fifteenth day of each month or, if any such day is not a Business
Day, the next succeeding Business Day, commencing on April 15, 2002.
As described above, the entire unpaid principal amount of this
Class A-4 Note shall be due and payable on the earlier of the Class A-4
Stated Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. In addition, the unpaid principal amount of this
Class A-4 Note may be redeemed pursuant to Section 10.1(b) of the Indenture
to the extent of a pro rata share of funds remaining in the Pre-Funding
Account upon the termination of the Pre-Funding Period and funds remaining
in the Reinvestment Account upon termination of the Reinvestment 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 Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-4
Note (or any one or more Predecessor Notes) shall be conclusive and binding
upon such Holder and upon all future Holders of this Class A-4 Note and of
any Class A-4 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-4 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued
thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 $144,500,000
No. R-1 CUSIP NO. 553083 CH 7
MMCA AUTO OWNER TRUST 2002-1
5.37% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 ONE HUNDRED FORTY-FOUR MILLION
FIVE HUNDRED THOUSAND DOLLARS payable on each Payment Date in the aggregate
amount, if any, payable from the Note Payment Account in respect of
principal on the Class B Notes pursuant to Section 2.8 of the Indenture,
dated as of March 1, 2002 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Indenture"), between the Issuer and
Bank of Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the January
2010 Payment Date (the "Class B Stated Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture. In addition,
the unpaid principal amount of this Note may be redeemed pursuant to
Section 10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the
Pre-Funding Period and of funds remaining in the Reinvestment Account upon
the termination of the Reinvestment Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 15th of
the previous month (or, in the case of the initial Payment Date, or if no
interest has been paid, from the Closing Date) to the 14th of the month of
such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
This Class B Note is one of a duly authorized issue of Notes of
the Issuer, designated as its 5.37% Class B Asset Backed Notes, which,
together with the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed
Notes, the Class A-3 Asset-Backed Notes, the Class A-4 Asset-Backed Notes
and the Class C Asset-Backed Notes (collectively, the "Notes"), are issued
under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class B
Notes are subordinated in right of payment to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, equal in
right of payment to the Class C Notes and subordinate to the rights of the
Swap Counterparty to receive payments (other than Swap Termination
Payments) pursuant to the Interest Rate Swap Agreement, to the extent
provided in the Indenture..
Principal of the Class B Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the
next succeeding Business Day, commencing April 15, 2002.
As described above, the entire unpaid principal amount of this
Class B Note shall be due and payable on the earlier of the Class B Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this Class B
Note may be redeemed pursuant to Section 10.1(b) of the Indenture to the
extent of a pro rata share of funds remaining in the Pre-Funding Account
upon the termination of the Pre-Funding Period and funds remaining in the
Reinvestment Account upon termination of the Reinvestment 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 all of the Notes Outstanding, voting as a
group, and with the consent of the Swap Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class B Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class B Note and of any
Class B Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof whether or not notation of such consent or waiver
is made upon this Class B Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 Class C Asset Backed Note]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $65,600,000
No. R-1 CUSIP NO. 553083 CJ 3
MMCA AUTO OWNER TRUST 2002-1
6.20% CLASS C ASSET BACKED NOTES
MMCA Auto Owner Trust 2002-1, 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 SIXTY FIVE MILLION SIX 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 C Notes pursuant to Section 2.8 of the Indenture, dated as of March
1, 2002 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Indenture"), between the Issuer and Bank of
Tokyo-Mitsubishi Trust Company, a New York banking corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the January
2010 Payment Date (the "Class C Stated Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture. In addition,
the unpaid principal amount of this Note may be redeemed pursuant to
Section 10.1(b) of the Indenture to the extent of a pro rata share of funds
remaining in the Pre-Funding Account upon the termination of the
Pre-Funding Period and of funds remaining in the Reinvestment Account upon
the termination of the Reinvestment Period. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 15th of
the previous month (or, in the case of the initial Payment Date, or if no
interest has been paid, from the Closing Date) to the 14th of the month of
such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse side hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer, as of the
date set forth below.
MMCA AUTO OWNER TRUST 2002-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By: __________________________________
Responsible Officer
Date: March 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: __________________________________
Responsible Officer
This Class C Note is one of a duly authorized issue of Notes of
the Issuer, designated as its 6.20% Class C Asset Backed Notes, which,
together with the Class A-1 Asset-Backed Notes, the Class A-2 Asset-Backed
Notes, the Class A-3 Asset-Backed Notes, the Class A-4 Asset-Backed Notes
and the Class B Asset-Backed Notes (collectively, the "Notes"), are issued
under the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Class C Notes are and will be equally and ratably secured
by the collateral pledged as security therefor as provided in the
Indenture. Except as otherwise set forth in the Indenture, the Class C
Notes are subordinated in right of payment to the Class A-1 Notes , the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, equal in
right of payment to the Class B Notes and subordinate to the rights of the
Swap Counterparty to receive payments (other than Swap Termination
Payments) pursuant to the Interest Rate Swap Agreement, to the extent
provided in the Indenture..
Principal of the Class C Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month or, if any such day is not a Business Day, the
next succeeding Business Day, commencing April 15, 2002.
As described above, the entire unpaid principal amount of this
Class C Note shall be due and payable on the earlier of the Class C Stated
Maturity Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. In addition, the unpaid principal amount of this Class C
Note may be redeemed pursuant to Section 10.1(b) of the Indenture to the
extent of a pro rata share of funds remaining in the Pre-Funding Account
upon the termination of the Pre-Funding Period and funds remaining in the
Reinvestment Account upon termination of the Reinvestment Period.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the
Holders of the Notes representing not less than a majority of all the Notes
Outstanding of all Classes, voting as a group, have declared the Notes to
be immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class C Notes shall be made pro
rata to the Holders entitled thereto.
Payments of interest on this Class C Note due and payable on
each Payment Date, together with the installment of principal, if any, to
the extent not in full payment of this Class C Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this
Class C Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date, except that with respect to
Class C Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Class
C Note be submitted for notation of payment. Any reduction in the principal
amount of this Class C Note (or any one or more Predecessor Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Class C Note and of any Class C Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class C Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Class C Note at the Indenture
Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of
interest at the Class C Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the
manner and to the extent described in the Indenture and the Sale and
Servicing Agreement.
As provided in the Indenture, and subject to certain
limitations set forth therein, the transfer of this Class C Note may be
registered on the Note Register upon surrender of this Class C Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon
one or more new Class C Notes of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Class C Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee, each in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution
for stock, unpaid capital contribution or failure to pay any installment or
call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that (a) such Noteholder
or Note Owner will not at any time institute against the Seller, or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents and (b) any claim that such Noteholder or Note Owner
may have at any time against the Subtrust Assets of any Subtrust unrelated
to the Notes, and any claim that such Noteholder may have against the
Seller that such Noteholder may seek to enforce against the Subtrust Assets
of any Subtrust unrelated to the Notes, shall be subordinate to the payment
in full, including post-petition interest, in the event that the Seller
becomes a debtor or debtor in possession in a case under any applicable
federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of
the holders of any Securities related to such unrelated Subtrust and the
holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust. The obligations of the Seller
represented by this Note are limited to the related Subtrust and the
related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance
of a Note or, in the case of a Note Owner, a beneficial interest in a Note,
shall be deemed to represent that its acquisition, holding and disposition
of the Note or beneficial interest in the Note, as applicable, does not
give rise to a prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN
THE CASE OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY
IRREVOCABLY MAKES THE ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE
SECTION 1111(b)(1)(A)(i) TO SECURED CREDITORS TO RECEIVE THE TREATMENT
AFFORDED BY XXXXX 00 XXXXXX XXXXXX CODE SECTION 1111(b)(2) WITH RESPECT TO
ANY SECURED CLAIM THAT SUCH NOTEHOLDER OR NOTE OWNER MAY HAVE AT ANY TIME
AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class C Note
is issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Trust Estate. Each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income,
single business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Class C Note, the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name this
Class C Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the owner hereof for
all purposes, whether or not this Class C Note be overdue, and none of the
Issuer, the Indenture Trustee or any such agent shall be affected by notice
to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Issuer with the consent of the Holders of
Notes representing a majority of all of the Notes Outstanding, voting as a
group, and with the consent of the Swap Counterparty if such amendment
adversely affects the rights or obligations of the Swap Counterparty under
the related Interest Rate Swap Agreement or modifies the obligations of, or
impairs the ability of, the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement. The Indenture also contains
provisions permitting the Holders of Notes representing specified
percentages of the Class A Notes Outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Class C Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class C Note and of any
Class C Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof whether or not notation of such consent or waiver
is made upon this Class C Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor
to the Issuer under the Indenture.
The 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 C Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this
Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class C Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and
all liabilities, obligations and undertakings contained in the Indenture or
in this Class C Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
----------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT D
---------
FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)
[Date]
To the Addressees Listed
on Schedule A hereto
Re: MMCA Auto Owner Trust 2002-1
Security Interest Matters
----------------------------
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit of
America, Inc., a Delaware corporation ("MMCA"), MMCA Auto Receivables
Trust, a Delaware business trust ("MART") and MMCA Auto Owner Trust 2002-1,
a Delaware business trust (the "Trust") in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of March 1, 2002 (the
"Purchase Agreement"), between MMCA and MART, (ii) the Sale and Servicing
Agreement, dated as of March 1, 2002 (the "Sale and Servicing Agreement"),
by and among MART, as seller, MMCA, as servicer, and the Trust, as issuer,
(iii) the Indenture, dated as of March 1, 2002 (the "Indenture"), between
the Trust and Bank of Tokyo-Mitsubishi Trust Company, as indenture trustee
for the benefit of the Holders of the Notes and the Swap Counterparty (the
"Indenture Trustee") and (iv) the Amended and Restated Trust Agreement,
dated as of March 1, 2002 (the "Trust Agreement"), between MART and
Wilmington Trust Company, as owner trustee. Capitalized terms not otherwise
defined herein have the meanings assigned to them in, or incorporated by
reference into, the Indenture.
Pursuant to the Purchase Agreement and the First-Tier Initial
Assignment 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
Initial Receivables attached as Exhibit B to the Purchase Agreement on the
date hereof which are intended to be secured by new and used automobiles
and sport-utility vehicles (collectively, the "Financed Vehicles"), certain
monies due or received thereunder 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 after the Cutoff
Date, certain other property relating to the Receivables and all proceeds
thereof. The Trust will issue $151,000,000 principal amount of 2.00875%
Class A-1 Asset Backed Notes, $384,000,000 principal amount of 3.03% Class
A-2 Asset Backed Notes, $369,000,000 principal amount of 4.15% Class A-3
Asset Backed Notes, $522,800,000 principal amount of Floating Rate Class
A-4 Asset Backed Notes, $144,500,000 principal amount of 5.37% Class B
Asset Backed Notes and $65,600,000 principal amount of 6.20% Class C Asset
Backed Notes (collectively, the "Notes"), pursuant to the provisions of an
Underwriting Agreement, dated March 8, 2002 (the "Underwriting Agreement"),
between MART and Xxxxxx Xxxxxxx & Co. Incorporated, as representative of
the several underwriters named therein (in such capacity, the
"Representative"). The Trust also will issue $113,738,720.97 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, MART and the Trust 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, the First-Tier Initial Assignment and
the Securities Account Control Agreement, dated as of March 1, 2002 (the
"Control Agreement") among MMCA, MART, the Trust, the Indenture Trustee and
the Securities Intermediary (as hereinafter defined) (collectively, the
"Agreements");
(b) a Certificate of MART with respect to prior financing
statements, dated the date hereof, a copy of which is attached as Exhibit A
hereto (the "MART Certificate");
(c) a Certificate of the Trust with respect to prior financing
statements, dated the date hereof, a copy of which is attached as Exhibit B
hereto (the "Trust Certificate");
(d) a certified copy of the certificate of trust of MART, dated
February 5, 2002, from the Secretary of State of the State of Delaware as
to MART's existence in such state (the "MART Secretary of State
Certificate");
(e) a certified copy of the certificate of trust of the Trust,
dated February 5, 2002, from the Secretary of State of the State of
Delaware as to the Trust's existence in such state (the "Trust Secretary of
State Certificate");
(f) a certificate of the Secretary of State of the State of
Delaware dated February 5, 2002 and a bringdown certificate dated the date
hereof as to the existence and good standing of MART (the "MART Good
Standing Certificate");
(g) a certificate of the Secretary of State of the State of
Delaware dated February 5, 2002 and a bringdown certificate dated the date
hereof as to the existence and good standing of the Trust (the "Trust Good
Standing Certificate");
(h) an unfiled copy of a financing statement naming "MMCA Auto
Receivables Trust" as debtor, "MMCA Auto Owner Trust 2002-1" as assignor
and "Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee" as
secured party/assignee, which we understand will be filed within ten 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");
(i) an unfiled copy of a financing statement naming "MMCA Auto
Owner Trust 2002-1" as debtor and "Bank of Tokyo-Mitsubishi Trust Company,
as Indenture Trustee" as secured party which we understand will be filed
within ten days of the Closing Date in the Delaware Filing Office (such
financing statement, the "Issuer/Indenture Trustee Financing Statement");
(j) the reports of LEXIS Document Services as to financing
statements naming "MMCA Auto Receivables Trust" as debtor and on file in
the Delaware Filing Office, as of an effective date of January 9, 2002 (the
"MART Search Report");
(k) the reports of LEXIS Document Services as to financing
statements naming "MMCA Auto Owner Trust 2002-1" as debtor and on file in
the Delaware Filing Office, as of an effective date of January 9, 2002 (the
"Trust Search Report"); and
(l) such other agreements, certificates or documents as we have
deemed necessary or appropriate as a basis for the opinion set forth below.
In making our examination of the Agreements, we have assumed
that the parties thereto had the power, corporate or otherwise, to enter
into and perform all of their respective obligations thereunder and have
also assumed the due authorization by all requisite action, corporate or
other, and the execution and delivery by such parties of the Agreements and
the validity and binding effect thereof on such parties, enforceable
against such parties in accordance with the terms of the Agreements.
As used herein, (i) "New York UCC" means the Uniform Commercial
Code as in effect on the date hereof in the State of New York (without
regard to laws referenced in Section 9-201 thereof); (ii) "Delaware UCC"
means the Uniform Commercial Code as in effect on the date hereof in the
State of Delaware (without regard to laws referenced in Section 9-201
thereof); (iii) "UCC" means the New York UCC and the Delaware UCC, as
applicable; (iv) "Federal Book-Entry Regulations" means the United States
Department of the Treasury's regulations governing the transfer and pledge
of marketable securities issued by the U.S. Treasury and maintained in the
form of entries in the TRADES book-entry system in the records of the
federal reserve banks and set forth in 61 Fed. Reg. 43626 (1996) (codified
at 31 C.F.R. Part 357), and the United States Department of Housing and
Urban Development's regulations governing the transfer and pledge of
securities issued by the Federal National Mortgage Association ("FNMA") or
the Federal Home Loan Mortgage Corporation ("FHLMC") in each case
maintained in the form of entries in the records of federal reserve banks
and set forth in 62 Fed. Reg. 28975 (1996) (codified at 24 C.F.R. Part 81);
(v) "Securities Intermediary" means Bank of Tokyo-Mitsubishi Trust Company,
solely in its capacity as a "securities intermediary" as defined in the
UCC; and (vi) "Securities Accounts" means account numbers 00000000,
00000000, 26024594, 26024608, 26024616, 26024624, 26024632 and 26024640
established at the Securities Intermediary which we have been informed are,
respectively, the Collection Account, the Note Payment Account, the
Payahead Account, the Reserve Account, the Yield Supplement Account, the
Pre-Funding Account, the Reinvestment Account and the Negative Carry
Account established pursuant to the Sale and Servicing Agreement, to the
extent such accounts are subject to Article 8 or 9 of the UCC or the
Federal Book-Entry Regulations.
We express no opinion as to the laws of any jurisdiction other
than (i) the UCC, (ii) for purposes of opinion paragraphs 9 and 10, the
Delaware Business Trust Act, and (iii) with respect to opinion paragraphs
13 and 14, the Federal Book-Entry Regulations.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. We note that the Sale and Servicing Agreement purports to
sell the Receivables and we express no opinion herein as to the proper
characterization of the transfer. However, irrespective of the
characterization of the transfer, the provisions of the Sale and Servicing
Agreement are effective under the New York UCC to create, in favor of the
Trust, a valid security interest in MART's rights in the Receivables and
proceeds thereof. If the transfer is characterized as a lien, the security
interest will secure payment of the Notes.
2. Pursuant to the provisions of the Sale and Servicing
Agreement, MART has authorized the filing of the MART/Trust Financing
Statement identifying the Receivables for purposes of Section 9-509 of the
Delaware UCC.
3. The MART/Trust Financing Statement includes not only all of
the types of information required by Section 9-502(a) of the Delaware UCC
but also the types of information without which the Delaware Filing Office
may refuse to accept the MART/Trust Financing Statement pursuant to Section
9-516 of the Delaware UCC.
4. Under the Delaware UCC, irrespective of the characterization
of the transfer, the security interest of the Trust will be perfected in
MART's rights in the Receivables and the proceeds thereof upon the later of
the attachment of the security interest and the filing of the MART/Trust
Financing Statement in the Delaware Filing Office. We hereby confirm that
Schedule B hereto identifies all persons who (i) are identified in the MART
Search Report as having filed in the Delaware Filing Office a financing
statement naming "MMCA Auto Receivables Trust" as debtor and containing a
description of collateral sufficient to include the Receivables as original
collateral as of the effective date of the MART Search Report, and (ii)
have not consensually released or subordinated their interest in the
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 Counterparty, a valid security interest under the New York UCC
in the Trust's rights in the Receivables and proceeds thereof to secure
payment of the Notes and payments of amounts payable to the Swap
Counterparty under the Interest Rate Swap Agreement.
6. Pursuant to the provisions of the Indenture, the Trust has
authorized the filing of the Issuer/Indenture Trustee Financing Statement
identifying the Receivables for purposes of Section 9-509 of the Delaware
UCC.
7. The Issuer/Indenture Trustee Financing Statement includes
not only all of the types of information required by Section 9-502(a) of
the Delaware UCC but also the types of information without which the
Delaware Filing Office may refuse to accept the Trust/Indenture Trustee
Financing Statement pursuant to Section 9-516 of the Delaware UCC.
8. Under the Delaware UCC, the security interest of the
Indenture Trustee will be perfected in the Trust's rights in the
Receivables and the proceeds thereof 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. We hereby confirm that
Schedule C hereto identifies all persons who (i) are identified in the
Trust Search Report as having filed in the Delaware Filing Office a
financing statement naming "MMCA Auto Owner Trust 2002-1" as debtor and
containing a description of collateral sufficient to include the
Receivables as original collateral as of the effective date of the Trust
Search Report, and (ii) have not consensually released or subordinated
their interest in the 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 the MART Secretary of State Certificate and the MART Good
Standing Certificate, we are of the opinion that under the Delaware UCC and
the Delaware Business Trust Act, 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 the Trust Secretary of State Certificate and the Trust Good
Standing Certificate, we are of the opinion that under the Delaware UCC and
the Delaware Business Trust Act, the Trust is a "registered organization."
11. Assuming that the Receivables are secured by the Financed
Vehicles (as to which we express no opinion), then (i) pursuant to Section
9-203(g) of the New York UCC, attachment of the security interest of the
Trust in the Receivables results in attachment in any underlying security
interest in the Financed Vehicles securing the Receivables and (ii)
pursuant to Section 9-308(e) of the Delaware UCC, perfection of the
security interest of the Trust in the Receivables results in perfection in
such underlying security interest in the Financed Vehicles. We call to your
attention that any such underlying collateral will continue to secure the
obligations for which such underlying collateral was pledged and will not
directly secure the obligations of MART to the Trust.
12. Assuming that the Receivables are secured by the Financed
Vehicles (as to which we express no opinion), then (i) pursuant to Section
9-203(g) of the New York UCC, attachment of the security interest of the
Indenture Trustee in the Receivables results in attachment in any
underlying security interest in the Financed Vehicles securing the
Receivables and (ii) pursuant to Section 9-308(e) of the Delaware UCC,
perfection of the security interest of the Indenture Trustee in the
Receivables results in perfection in such underlying security interest in
the Financed Vehicles. We call to your attention that any such underlying
collateral will continue to secure the obligations for which such
underlying collateral was pledged and will not directly secure the
obligations of the Trust to the Indenture Trustee.
Our opinions in paragraphs 1-12 above are subject to the
following qualifications:
(a) For purposes of opinion paragraphs 1 and 4, we have assumed
that the Receivables exist and that MART owns the Receivables and we
express no opinion as to the nature or extent of MART's rights in, or title
to, any of the Receivables, and for purposes of our opinions in paragraphs
5 and 8, we have assumed that the Receivables exist and that the Trust owns
the Receivables and we express no opinion as to the nature or extent of the
Trust's rights in, or title to, any of the 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 the principal obligation of the
account debtor or obligator under each Receivable is a monetary obligation,
does not evidence an order to pay, and does not contain an acknowledgment
by a bank that the bank has received for deposit a sum of money or funds,
and is not a letter of credit or a deposit account;
(d) We have assumed that there are no agreements prohibiting,
restricting or conditioning the assignment of any portion of the
Receivables;
(e) We call to your attention that even though the UCC may
render anti-assignment provisions ineffective for purposes of creation,
attachment or perfection of the security interest, nonetheless, in many
cases, assignee of such a security interest may obtain limited rights
thereunder (including restrictions on rights of use, assignment and
enforcement);
(f) We have assumed that "value" as defined in Section
1-201(44) of the UCC was given;
(g) We have assumed that each of MART and the Trust has all
necessary authorization under its organizational documents and applicable
law (other than the UCC) for the filing of the MART/Trust Financing
Statement and the Issuer/Indenture Trustee Financing Statement,
respectively;
(h) Pursuant to Section 9-311(a) of the UCC, we express no
opinion with respect to any property subject to a statute, regulation or
treaty of the United States whose requirements for a security interest's
obtaining priority over the rights of a lien creditor with respect to the
property preempt Section 9-310(a) of the UCC;
(i) 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;
(j) Our opinion in paragraph 9 is based solely upon our review
of the MART Good Standing Certificate and the MART Secretary of State
Certificate;
(k) Our opinion in paragraph 10 is based solely upon our review
of the Trust Good Standing Certificate and Trust Secretary of State
Certificate;
(l) 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 that this determination is an element
of your choice of law analysis, we express no opinions as to the law
governing perfection, the effect of perfection and non-perfection or
priority of the security interest;
(m) We express no opinion regarding the security interest of
the Trust or the Indenture Trustee in any 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); and
(n) 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.
(o) 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 after the date hereof.
13. 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 Counterparty, a valid security interest under the New York UCC
in the Trust's rights in the Securities Accounts.
14. Under the UCC, the provisions of the Control Agreement are
effective to perfect the security interest of the Indenture Trustee, for
the benefit of the Holders of the Notes and the Swap Counterparty, in the
Trust's rights in the Securities Accounts.
Our opinions in paragraphs 13 and 14, with respect to the
security interest of the Indenture Trustee in the Securities Accounts, are
subject to the following additional assumptions and qualifications:
(a) we have assumed that the Trust has sufficient rights in the
Securities Accounts for the security interest of the Indenture Trustee for
the benefit of the Holders of the Notes and the Swap Counterparty to
attach, and we express no opinion as to the nature or extent of the Trust's
rights in, or title to, any of the Securities Accounts. In addition, we
express no opinion as to the nature or extent of the Securities
Intermediary's rights in, or title to, any securities or other financial
assets underlying any "security entitlements" now or hereafter credited to
any Securities Account. We note that to the extent that the Securities
Intermediary maintains any financial asset in a "clearing corporation" (as
defined in Section 8-102(a)(5) of the UCC), pursuant to Section 8-111 of
the UCC, the rules of such clearing corporation may affect the rights of
the Securities Intermediary or the Indenture Trustee and, to the extent any
of the financial assets are issued by the U.S. Treasury or certain other
federally sponsored issuers, certain federal officials, including the
Secretary of the Treasury and the Secretary of the Department of Housing
and Urban Development, may waive the Federal Book-Entry Regulations and we
express no opinion on the effect of any such waiver on the opinions
expressed herein;
(b) insofar as our opinions relate to the Federal Book-Entry
Regulations, such opinions are limited to regulations published in the Code
of Federal Regulations or the Federal Register, without regard to any
interpretations, operating circulars or other communications from the
Department of the Treasury, the Board of Governors of the Federal Reserve
System, any Federal Reserve Bank, the Department of Housing and Urban
Development or any other federal agency or instrumentality. Further, to the
extent any of the financial assets are issued by the U.S. Treasury or
certain other federally sponsored issuers, certain federal officials,
including the Secretary of the Treasury and the Secretary of the Department
of Housing and Urban Development, may waive the Federal Book-Entry
Regulations and we express no opinion with respect to the effect of any
such waiver on the opinions expressed herein;
(c) 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 security interest of the Indenture Trustee for
the benefit of the Holders of the Notes and the Swap Counterparty;
(d) we have assumed that "value" as defined in Section
1-201(44) of the UCC was given;
(e) we call to your attention that under the UCC, actions taken
by the Securities Intermediary or the Indenture Trustee (including amending
the Indenture or the Control Agreement in a manner in which either (a)
eliminates the Indenture Trustee's "control" over any of the Securities
Accounts, (b) changes the law governing any of the Securities Accounts or
(c) changes the identity of the entitlement holder) may adversely affect
the security interest of the Indenture Trustee for the benefit of the
Holders of the Notes and the Swap Counterparty. In addition, actions taken
by a secured party (e.g., releasing or assigning the security interest,
delivering possession of the collateral to the debtor or another person and
voluntarily subordinating a security interest) may affect any security
interest subject to the UCC;
(f) we have assumed that each of the Control Agreement and the
Indenture is the legal, binding and enforceable obligation of all parties
thereto;
(g) we have assumed that each Securities Account is a
"securities account" (as defined in the UCC) and the Securities
Intermediary in the ordinary course of its business maintains Securities
Accounts for customers and is acting in that capacity;
(h) we call to your attention that the law of a securities
intermediaries' jurisdiction governs, among other things, the rights and
duties of a securities intermediary and the entitlement holder arising out
of a "security entitlement" and whether an adverse claim can be asserted
against a person who acquires a "security entitlement" from a securities
intermediary;
(i) we express no opinion with respect to any security or other
financial asset credited to any securities account which has not been (i)
registered in the name of, or indorsed to, the Securities Intermediary or
indorsed in blank or (ii) credited to a securities account in the name of
the Securities Intermediary;
(j) we express no opinion with respect to any property or
assets now or hereafter credited to any Securities Account that is not a
"financial asset" and we express no opinion whether or to what extent any
particular item of property credited to such securities account is a
"financial asset." Without limiting the foregoing, we express no opinion
with respect to any property or asset now or hereafter credited to such
securities account which is excluded from Article 9 of the UCC pursuant to
Section 9-109 thereof;
(k) we express no opinion with respect to the security interest
of the Indenture Trustee for the benefit of the Holders of the Notes and
the Swap Counterparty in any of the following types of property: (a) any
option or similar obligation issued by a clearing corporation to its
participants; (b) any commodity contract; (c) an ownership interest
evidenced by certificates of stock or other instruments and a leasehold
evidenced by a proprietary lease, or either of the foregoing, from a
corporation or partnership formed for the purpose of cooperative ownership
of real estate; (d) any interest in a trust, partnership or limited
liability company; or (e) property of a type constituting financial assets
not subject to Article 9 of the UCC;
(l) we express no opinion as to the law governing perfection,
the effect of perfection and non-perfection or priority of the security
interest; and
(m) 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 after the date hereof.
Very truly yours,
Annex A
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FORM OF RETAIL INSTALLMENT SALE CONTRACT
Appendix A
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DEFINITIONS AND USAGE
Usage
The following rules of construction and usage shall be
applicable to any agreement or instrument that is governed by this
Appendix:
(a) All terms defined in this Appendix shall have the defined
meanings when used in any agreement or instrument governed
hereby and in any certificate or other document made or
delivered pursuant thereto unless otherwise defined therein.
(b) As used herein, in any agreement or instrument governed
hereby and in any certificate or other document made or
delivered pursuant thereto, accounting terms not defined in
this Appendix or in any such agreement, instrument,
certificate or other document, and accounting terms partly
defined in this Appendix or in any such agreement,
instrument, certificate or other document, to the extent not
defined, shall have the respective meanings given to them
under generally accepted accounting principles as in effect
on the date of such agreement or instrument. To the extent
that the definitions of accounting terms in this Appendix or
in any such agreement, instrument, certificate or other
document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the
definitions contained in this Appendix or in any such
instrument, certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in an agreement or instrument refer
to such agreement or instrument as a whole and not to any
particular provision or subdivision thereof; references in
an agreement or instrument to "Article," "Section" or
another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or
subdivision of or an attachment to such agreement or
instrument; the word "or" is not exclusive; and the term
"including" means "including without limitation."
(d) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such
terms and to the masculine as well as to the feminine and
neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
below or in any agreement or instrument that is governed by
this Appendix means such agreement or instrument or statute
as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and includes (in
the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors
and assigns.
Definitions
"Accrued Note Interest" shall mean, with respect to any Payment
Date and each Class of Notes, the sum of the Monthly Accrued Note Interest
and the Interest Carryover Shortfall for such Class for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of
the Indenture.
"Actuarial Advance" shall mean, with respect to an Actuarial
Receivable, the amount, as of the last day of a Collection Period, which is
required to be advanced with respect to such Actuarial Receivable by the
Servicer pursuant to Section 4.4(a) of the Sale and Servicing Agreement.
"Actuarial Method" shall mean the method of allocating a fixed
level payment on a Receivable between principal and interest, pursuant to
which the portion of such payment that is allocated to interest is the
product of one-twelfth (1/12) of the APR of the Receivable multiplied by
the scheduled principal balance of the Receivable, and the remainder of
such payment is allocable to principal.
"Actuarial Receivable" shall mean any Receivable under which
the portion of a payment with respect thereto allocable to interest and the
portion of a payment with respect thereto allocable to principal is
determined in accordance with the Actuarial Method.
"Adjusted Pool Balance" shall mean, as of any date of
determination, an amount equal to the sum of (i) the aggregate Adjusted
Principal Balance (including the aggregate Adjusted Principal Balance of
Last Scheduled Payments) of the Receivables as of the Initial Cutoff Date
plus (ii) the aggregate Adjusted Principal Balance (including the aggregate
Adjusted Principal Balance of Last Scheduled Payments) of all Subsequent
Receivables transferred to the Trust on or prior to such date as of their
respective Subsequent Cutoff Dates.
"Adjusted Principal Balance" shall mean, with respect to any
Receivable as of any date of determination, the Principal Balance of such
Receivable minus the Yield Supplement Overcollateralization Amount for such
Receivable, as of such date.
"Administration Agreement" shall mean the Administration
Agreement, dated as of March 1, 2002, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of America,
Inc., a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Advance" shall mean an Actuarial Advance or a Last Scheduled
Payment Advance, as the context may require.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person shall
mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Amount Financed" shall mean, with respect to a Receivable, the
aggregate amount advanced under such Receivable toward the purchase price
of the Financed Vehicle and any related costs.
"Applicable Tax State" shall mean, as of any date of
determination, each state as to which any of the following is then
applicable: (a) a state in which the Owner Trustee maintains the Corporate
Trust Office, (b) a state in which the Owner Trustee maintains its
principal executive offices and (c) a state in which the Servicer regularly
conducts servicing and collection operations other than purely ministerial
activities and which relate to a material portion of the Receivables.
"APR" of a Receivable shall mean the annual percentage rate of
interest stated in the Contract related to such Receivable.
"Assignment" shall mean the First-Tier Initial Assignment or
any First-Tier Subsequent Assignment, as the context may require.
"Authenticating Agent" shall have the meaning specified in
Section 2.14 of the Indenture.
"Available Funds" shall mean, for any Payment Date, an amount
equal to (a) the sum of the following amounts with respect to the related
Collection Period: (i) all collections on Receivables, including Payaheads
withdrawn from the Payahead Account (but excluding Payaheads deposited into
the Payahead Account), (ii) the proceeds of sale by the Trust of any
Financed Vehicle sold to the Trust upon termination, including a
prepayment, of a Final Payment Receivable, (iii) all Liquidation Proceeds
on Defaulted Receivables and any Recoveries, (iv) all extension and
deferral fees paid with respect to the Receivables, (v) the Purchase Amount
of each Receivable that became a Purchased Receivable during the related
Collection Period (net of applicable expenses), (vi) any Net Swap Receipts
on the Interest Rate Swap Agreement, (vii) any Swap Termination Payments
paid by the Swap Counterparty to the extent that such amounts are not used
to enter into a replacement interest rate swap, (viii) all Actuarial
Advances and Last Scheduled Payment Advances deposited to the Collection
Account on such Payment Date by the Servicer, (ix) amounts paid pursuant to
the Yield Supplement Agreement (including amounts, if any, withdrawn from
the Yield Supplement Account or the Reserve Account pursuant to Section
5.1(a) of the Sale and Servicing Agreement) with respect to the related
Collection Period, (x) the Negative Carry Amount for such Payment Date,
(xi) partial prepayments attributable to any refunded item included in the
Amount Financed, such as extended warranty protection plan costs or
physical damage, credit life or disability insurance premiums, or any
partial prepayment which causes a reduction in the Obligor's periodic
payment to be below the Scheduled Payment as of the related Cutoff Date,
(xii) the Pre-Funding Account Investment Earnings and Reinvestment Account
Investment Earnings, if any, for the related Collection Period, (xiii) the
Remaining Pre-Funded Amount and (xiv) the Remaining Reinvestment Amount,
minus (b) the aggregate amount of funds described in clause (a) above that
are used in the related Collection Period to reimburse the Servicer for the
aggregate amount of Advances previously made by the Servicer that are due
and payable to the Servicer on such Payment Date, minus (c) if the Payment
Date occurs during the Reinvestment Period, the sum of (x) Reinvested
Amount for such Payment Date and (y) the Excess Reinvestment Amount, if
any, deposited to the Reinvestment Account on the Business Day preceding
the Payment Date; provided, however, that in calculating the Available
Funds, all payments and proceeds (including Liquidation Proceeds) of any
Purchased Receivables the Purchase Amount of which has been included in the
Available Funds in a prior Collection Period (which shall be paid to MART
or the Servicer, as applicable) will be excluded.
"Balloon Payment" means, as to a Balloon Payment Receivable,
the final payment which is due at the end of the term of the receivable.
"Balloon Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables
which provides for equal monthly installments and one substantially larger
final balloon payment. At maturity of the Balloon Payment Receivable, the
Obligor may either (i) pay the remaining Principal Balance of the
Receivable, all accrued and unpaid interest, plus any fees, charges, and
other amounts then owing or (ii) refinance the amount then due, subject to
certain conditions, and satisfy all other conditions stated under the terms
of the Contract. For avoidance of doubt, the Obligor on a Balloon Payment
Receivable may not satisfy its obligation to pay the Balloon Payment at
maturity of the Balloon Payment Receivable by returning the Financed
Vehicle to MMCA.
"Basic Documents" shall mean the Indenture, the Certificate of
Trust, the Trust Agreement, the Assignments, the Sale and Servicing
Agreement, the Purchase Agreement, the Administration Agreement, the Note
Depository Agreement, the Interest Rate Swap Agreement, the Yield
Supplement Agreement, the Control Agreement and other documents and
certificates delivered in connection therewith as the same may from time to
time be amended, supplemented or otherwise modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 2.11 of the Indenture.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New
York, New York, Wilmington, Delaware or Los Angeles, California are
authorized or obligated by law, regulation or executive order to be closed.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code ' 3801 et seq., as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Calculation Agent" shall initially mean Xxxxxx Xxxxxxx Capital
Services Inc., as the agent of the Issuer for purposes of determining LIBOR
for each Interest Accrual Period, and any successor that may be appointed
by the Issuer from time to time pursuant to Section 3.20(a) of the
Indenture.
"Capped Receivable" shall mean a Simple Interest Receivable
that is subject to a cap on the aggregate amount of interest to be paid by
the related Obligor during the term of such Receivable.
"Certificate" shall mean a physical certificate evidencing the
beneficial interest of a Certificateholder in the property of the Trust,
substantially in the form of Exhibit A to the Trust Agreement. Such
certificate shall entitle the Holder thereof to distributions pursuant to
the Trust Agreement from collections and other proceeds in respect of the
Owner Trust Estate; provided, however, that the Owner Trust Estate has been
pledged to the Indenture Trustee to secure payment of the Notes and that
the rights of Certificateholders to receive distributions on the
Certificates are subordinated to the rights of the Noteholders as described
in the Sale and Servicing Agreement and the Indenture.
"Certificate Balance" shall mean, as the context may require,
(i) with respect to all of the Certificates, an amount equal to, initially,
the Initial Certificate Balance and, thereafter, an amount equal to the
Initial Certificate Balance, as reduced from time to time by all amounts
allocable to principal previously distributed to Certificateholders or (ii)
with respect to any Certificate, an amount equal to, initially, the initial
denomination of such Certificate and, thereafter, an amount equal to such
initial denomination, as reduced from time to time by all amounts allocable
to principal previously distributed in respect of such Certificate;
provided, that in determining whether the Holders of the requisite portion
or percentage of the Certificate Balance of all of the Certificates have
given any request, demand, authorization, direction, notice, consent, or
waiver hereunder or under any other Basic Document, Certificates owned by
the Trust, any other obligor upon the Certificates, MART, the Servicer or
any Affiliate of any of the foregoing Persons shall be disregarded and
deemed to be excluded from the Certificate Balance (unless such Persons own
100% of the Certificate Balance of the Certificates); provided, further,
that where such Persons own 100% of the Certificate Balance of the
Certificates, any request, demand, authorization, direction, notice,
consent or waiver hereunder or under any other Basic Document is deemed to
have been given by the Holders of the Certificates if also given by the
Holders of the Notes, except that, in determining whether the Indenture
Trustee and Owner Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent, or waiver, only
Certificates that a Responsible Officer of the Indenture Trustee, if
applicable, and a Responsible Officer of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement, if
applicable, knows to be so owned shall be so disregarded. Certificates so
owned that have been pledged in good faith may be regarded as included in
the Certificate Balance if the pledgee establishes to the satisfaction of
the Indenture Trustee or the Owner Trustee, as applicable, the pledgee's
right so to act with respect to such Certificates and that the pledgee is
not the Trust, any other obligor upon the Certificates, MART, the Servicer
or any Affiliate of any of the foregoing Persons.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 4.1(f) of the Sale and Servicing
Agreement.
"Certificate of Trust" shall mean (i) with respect to the
Trust, the Certificate of Trust in the form of Exhibit B to the Trust
Agreement filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute and (ii) with respect to the Issuer, the certificate of trust
of the Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Certificate Pool Factor" shall mean, as of the close of
business on the last day of a Collection Period, a seven-digit decimal
figure equal to the Certificate Balance (after giving effect to any
reductions therein to be made on the immediately following Payment Date)
divided by the Initial Certificate Balance. The Certificate Pool Factor
will be 1.0000000 as of the Closing Date; thereafter, the Certificate Pool
Factor will decline to reflect reductions in the Certificate Balance.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4
of the Trust Agreement.
"Certificateholder" shall mean a Person in whose name a
Certificate is registered in the Certificate Register.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean, collectively, the Class A-1 Notes,
the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Percentage" shall mean approximately 85.86%,
calculated as the percentage equivalent of a fraction the numerator of
which is the sum of the principal amount on the date of issuance of the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes.
"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 $151,000,000 aggregate initial
principal amount of 2.00875% Class A-1 Asset Backed Notes issued by the
Issuer pursuant to the Indenture, substantially in the form of Exhibit A-1
thereto.
"Class A-1 Rate" shall mean 2.00875% per annum.
"Class A-1 Stated Maturity Date" shall mean the March 2003
Payment Date.
"Class A-2 Noteholder" shall mean the Person in whose name a
Class A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $384,000,000 aggregate initial
principal amount of 3.03% Class A-2 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-2
thereto.
"Class A-2 Rate" shall mean 3.03% per annum.
"Class A-2 Stated Maturity Date" shall mean the January 2005
Payment Date.
"Class A-3 Noteholder" shall mean the Person in whose name a
Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $369,000,000 aggregate initial
principal amount of 4.15% Class A-3 Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-3
thereto.
"Class A-3 Rate" shall mean 4.15% per annum.
"Class A-3 Stated Maturity Date" shall mean the May 2006
Payment Date.
"Class A-4 Noteholder" shall mean the Person in whose name a
Class A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $522,800,000 aggregate initial
principal amount of Floating Rate Class A-4 Asset Backed Notes issued by
the Issuer pursuant to the Indenture, substantially in the form of Exhibit
A-4 thereto.
"Class A-4 Rate" shall mean one-month LIBOR plus 0.28%.
"Class A-4 Stated Maturity Date" shall mean the January 2010
Payment Date.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered on the Note Register.
"Class B Notes" shall mean the $144,500,000 aggregate initial
principal amount of 5.37% Class B Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit B thereto.
"Class B Percentage" shall mean approximately 9.72%, calculated
as the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class B Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes.
"Class B Rate" shall mean 5.37% per annum.
"Class B Stated Maturity Date" shall mean the January 2010
Payment Date.
"Class C Noteholder" shall mean the Person in whose name a
Class C Note is registered on the Note Register.
"Class C Notes" shall mean the $65,600,000 aggregate initial
principal amount of 6.20% Class C Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit C thereto.
"Class C Percentage" shall mean approximately 4.42%, calculated
as the percentage equivalent of a fraction the numerator of which is the
principal amount on the date of issuance of the Class C Notes, and the
denominator of which is the sum of the principal amount on the date of
issuance of the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes.
"Class C Rate" shall mean 6.20% per annum.
"Class C Stated Maturity Date" shall mean the January 2010
Payment Date.
"Class" shall mean a class of Notes, which may be the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes or the Class C Notes.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing" shall have the meaning specified in Section 2.3 of
the Purchase Agreement.
"Closing Date" shall mean March 13, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations, including proposed or
temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting
Clause of the Indenture.
"Collection Account" shall mean the account or accounts
established and maintained as such pursuant to Section 4.1(a) of the Sale
and Servicing Agreement.
"Collection Period" shall mean each calendar month during the
term of the Sale and Servicing Agreement or, in the case of the initial
Collection Period, the period from the Initial Cutoff Date to March 31,
2002. As used herein, the Collection Period "related to" a Payment Date or
"preceding" a Payment Date refers to the Collection Period that ends on the
last day of the calendar month preceding the calendar month in which such
Payment Date occurs.
"Commission" shall mean the Securities and Exchange Commission.
"Computer Tape" shall mean each computer tape or compact disk
generated by MART which provides information relating to the Receivables
and which was used by MART in selecting the Receivables conveyed to the
Trust hereunder on the Closing Date or any Subsequent Transfer Date.
"Contract" shall mean a motor vehicle retail installment sale
contract, including a retail installment contract relating to the sale of
an automobile or a sports-utility vehicle for commercial use.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of March 1, 2002, by and among MART, the Issuer, the
Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust Company
in its capacity as a securities intermediary, as the same may from time to
time be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean (i) with respect to the
Owner Trustee, the principal office of the Owner Trustee at which at any
particular time its corporate trust business shall be administered, which
office at the date of the execution of this Agreement is located at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000,
Attention: Corporate Trust Administration or at such other address as the
Owner Trustee may designate from time to time by notice to the
Certificateholders, the Indenture Trustee and MART, or the principal
corporate trust office of any successor Owner Trustee (of which address
such successor Owner Trustee will notify the Certificateholders, the
Indenture Trustee and MART) and (ii) with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular
time its corporate trust business shall be administered, which office at
the date of the execution of this Agreement is located at 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Corporate Trust
Department, or at such other address as the Indenture Trustee may designate
from time to time by notice to the Noteholders, the Owner Trustee and MART,
or the principal corporate trust office of any successor Indenture Trustee
(of which address such successor Indenture Trustee will notify the
Noteholders, the Owner Trustee and MART).
"Cutoff Date" shall mean the Initial Cutoff Date or any
Subsequent Cutoff Date, as the context may require.
"Dealer" shall mean, with respect to any Receivable, the seller
of the related Financed Vehicle who originated and assigned the Receivable
relating to such Financed Vehicle to MMCA under a Dealer Agreement.
"Dealer Agreement" shall mean an agreement between MMCA and a
Dealer relating to the assignment of Receivables to MMCA and all documents
and instruments relating thereto, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Default" shall mean any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable (other than a
Purchased Receivable) as to which (i) the related Financed Vehicle has been
repossessed and liquidated, (ii) more than 10% of a Scheduled Payment
(including, in the case of a Final Payment Receivable, the amount owed by
an Obligor with respect to a Last Scheduled Payment but excluding in each
case any Excess Wear and Tear or Excess Mileage) is 120 or more days past
due and the Servicer has not repossessed the related Financed Vehicle or
(iii) the Servicer has determined, in accordance with its customary
servicing standards, policies and procedures, that eventual payment in full
(including, in the case of a Final Payment Receivable, the amount owed by
an Obligor with respect to a Last Scheduled Payment but excluding in each
case any Excess Wear and Tear or Excess Mileage) on the Receivable is
unlikely and the Servicer has either (x) repossessed and liquidated the
related Financed Vehicle or (y) repossessed and held the related Financed
Vehicle in its repossession inventory for more than 90 days, which 90 days
shall not be more than 180 days after the date on which a Scheduled Payment
was due but not paid.
"Deferred Balloon Payment Receivable" shall mean any Deferred
Payment Receivable for which no Scheduled Payment is due for either 90 or
180 days from the date of the Contract and which provides for a Balloon
Payment.
"Deferred Payment Receivable" shall mean any Receivable which
is not a Deferred Balloon Payment Receivable for which the related Contract
specifies that no Scheduled Payment under such Contract shall be due until
a date more than 50 days but less than 450 days from the date of inception
of the such Contract. A Receivable shall cease to be a Deferred Payment
Receivable commencing on the last day of the Collection Period preceding
the Collection Period in which the first Scheduled Payment is due under the
related Contract.
"Definitive Notes" shall have the meaning specified in Section
2.11 of the Indenture. "Depositor" shall mean MART, in its capacity as
Depositor under the Trust Agreement.
"Determination Date" shall mean, with respect to any Collection
Period, the seventh Business Day of the next succeeding calendar month (but
not later than the tenth calendar day of such month).
"Eligible Receivable" shall mean each Initial Receivable and
each Subsequent Receivable as to which the representations and warranties
of (i) MMCA, in Section 3.2 of the Purchase Agreement, and (ii) MART, in
Section 2.2 of the Sale and Servicing Agreement, shall be true and correct
in all material respects as of the Closing Date and as of each Subsequent
Transfer Date, respectively.
"Eligible Servicer" shall mean a Person which, at the time of
its appointment as Servicer or as a subservicer, (i) has a net worth of not
less than $50,000,000, (ii) is servicing a portfolio of motor vehicle
retail installment sale contracts and/or motor vehicle loans, (iii) is
legally qualified, and has the capacity, to service the Receivables, (iv)
has demonstrated the ability professionally and competently to service a
portfolio of motor vehicle retail installment sale contracts and/or motor
vehicle loans similar to the Receivables in accordance with standards of
skill and care that are consistent with prudent industry standards, and (v)
is qualified and entitled to use pursuant to a license or other written
agreement, and agrees to maintain the confidentiality of, the software
which the Servicer or any subservicer uses in connection with performing
its duties and responsibilities under the Sale and Servicing Agreement or
the related subservicing agreement or obtains rights to use, or develops at
its own expense, software which is adequate to perform its duties and
responsibilities under the Sale and Servicing Agreement or the related
subservicing agreement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Event of Default" shall have the meaning specified in Section
5.1 of the Indenture.
"Event of Servicing Termination" shall mean an event specified
in Section 8.1 of the Sale and Servicing Agreement.
"Excess Mileage" shall mean, with respect to any Financed
Vehicle securing a Final Payment Receivable, the amounts payable by the
related Obligor relating to the excess of the number of miles by which such
Financed Vehicle has been driven over the number of miles such Financed
Vehicle may be driven during the term of the related Final Payment
Receivable (as specified in the Contract related to such Final Payment
Receivable) without incurring an excess mileage charge pursuant to the
related Contract, net of the amount, if any, payable to a third party
collection agency as payment of its fees and expenses in connection with
collecting such amounts from the related Obligor.
"Excess Reinvestment Amount" shall mean, for any Payment Date,
the excess, if any, of the Required Reinvestment Amount for that Payment
Date over the total Adjusted Principal Balance of Eligible Receivables that
are available to be transferred to the Trust on that Payment Date.
"Excess Wear and Tear" shall mean, with respect to any Financed
Vehicle securing a Final Payment Receivable, all amounts payable by the
related Obligor relating to damages to such Financed Vehicle that are not
the result of normal wear and tear, as more specifically described in the
Contract related to such Final Payment Receivable, net of the amount, if
any, payable to a third party collection agency as payment of its fees and
expenses in connection with collecting such amounts from the related
Obligor.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Executive Officer" shall mean, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President,
the Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Expenses" shall have the meaning assigned to such term in
Section 8.2 of the Trust Agreement.
"Final Payment Receivable" shall mean all rights and
obligations arising under a Contract listed on the Schedule of Receivables
which provides for a series of scheduled payments which, if each is made on
its scheduled due date, will amortize the initial Level Pay Balance by the
due date immediately preceding the maturity date of the Receivable. At
maturity of the Final Payment Receivable, the Obligor thereunder will owe
(assuming that all payments have been made on their scheduled due dates) an
amount consisting of interest for the period from the preceding due date
through the maturity date and the remaining Principal Balance of the
Receivable. At maturity of the Final Payment Receivable, the Obligor may
either (i) pay the remaining Principal Balance of the Receivable, all
accrued and unpaid interest, plus any fees, charges, and other amounts then
owing, (ii) refinance the amount then due, subject to certain conditions or
(iii) sell the Financed Vehicle to MMCA on behalf of the Trust for an
amount equal to the Sale Price, and pay any excess of the total amount owed
by the Obligor (calculated as in clause (i)) over the Sale Price, and
satisfy all other conditions stated under the terms of the Contract.
"Final Scheduled Maturity Date" shall mean, with respect to any
Receivable, December 31, 2008.
"Financed Vehicle" shall mean a new or used automobile or
sport-utility vehicle, together with all accessions thereto, securing an
Obligor's indebtedness under the respective Receivable.
"First-Tier Initial Assignment" shall mean the document of
assignment in substantially the form attached as Exhibit A-1 to the
Purchase Agreement.
"First-Tier Subsequent Assignment" shall mean the document of
assignment in substantially the form attached as Exhibit A-2 to the
Purchase Agreement.
"Fitch Ratings" shall mean Fitch, Inc., doing business as Fitch
Ratings.
"GAAP" shall mean generally accepted accounting principles.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to xxxxx x
xxxx upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all
rights, powers and options (but none of the obligations) of the granting
party thereunder, including the immediate and continuing right to claim
for, collect, receive and give receipt for principal and interest payments
in respect of the Collateral and all other monies payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the granting party or otherwise, and generally to do and receive
anything that the granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" shall mean a Noteholder or a Certificateholder, as the
case may be.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of March 1,
2002, between the Trust and the Indenture Trustee, as the same may be
amended, supplemented or otherwise modified and in effect from time to
time.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"Independent" shall mean, when used with respect to any
specified Person, that such Person (a) is in fact independent of the
Issuer, any other obligor on the Notes, MART and any Affiliate of any of
the foregoing Persons, (b) does not have any direct financial interest or
any material indirect financial interest in the Issuer, any such other
obligor, MART or any Affiliate of any of the foregoing Persons and (c) is
not connected with the Issuer, any such other obligor, MART or any
Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" shall mean a certificate or opinion
to be delivered to the Indenture Trustee under the circumstances described
in, and otherwise complying with, the applicable requirements of Section
11.1 of the Indenture, made by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state
that the signer has read the definition of "Independent" in the Indenture
and that the signer is Independent within the meaning thereof.
"Index Maturity" shall mean one month.
"Initial Certificate Balance" shall mean, as the context may
require, (i) with respect to all of the Certificates, $113,738,720.97, or
(ii) with respect to any Certificate, an amount equal to the initial
denomination of such Certificate.
"Initial Cutoff Date" shall mean February 28, 2002.
"Initial Payahead Account Deposit" shall mean $328,075.69.
"Initial Pool Balance" shall mean the aggregate Principal
Balance (including the aggregate principal balance of Last Scheduled
Payments) of the Initial Receivables as of the close of business on the
Initial Cutoff Date, which is $1,341,416,530.93.
"Initial Receivable" shall mean each motor vehicle retail
installment sale contract described in the Schedule of Initial Receivables,
and all rights and obligations thereunder and any amendments, modifications
or supplements to such motor vehicle retail installment sale contract.
"Initial Receivables Purchase Price" shall mean
$1,337,780,544.23.
"Initial Weighted Average Rate" shall mean 8.881%.
"Initial Yield Supplement Amount" shall mean $21,613,006.43.
"Insolvency Event" shall mean, with respect to any Person, (i)
the making of a general assignment for the benefit of creditors, (ii) the
filing of a voluntary petition in bankruptcy, (iii) being adjudged a
bankrupt or insolvent, or having had entered against such Person an order
for relief in any bankruptcy or insolvency proceeding, (iv) the filing by
such Person of a petition or answer seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, (v) the filing by such Person of an answer
or other pleading admitting or failing to contest the material allegations
of a petition filed against such Person in any proceeding specified in
(vii) below, (vi) seeking, consenting to or acquiescing in the appointment
of a trustee, receiver or liquidator of such Person or of all or any
substantial part of the assets of such Person or (vii) the failure to
obtain dismissal within 60 days of the commencement of any proceeding
against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, or the entry of any order appointing a trustee,
liquidator or receiver of such Person or of such Person's assets or any
substantial portion thereof.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, and with respect to the Class A-2 Notes, the Class A-3 Notes,
the Class B Notes and the Class C Notes, the period from and including the
15th day of the calendar month immediately preceding such Payment Date to
but excluding the 15th day of the calendar month in which such Payment Date
occurs and, with respect to the Class A-1 Notes and the Class A-4 Notes,
the period from and including the preceding Payment Date through the day
preceding the Payment Date; provided, that if the 15th day of a month is
not a Business Day, the payment will be made on the next following Business
Day; provided, further, that for the first Payment Date, the "Interest
Accrual Period" shall mean the period from and including the Closing Date.
"Interest Carryover Shortfall" shall mean, with respect to any
Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually
deposited in the Note Payment Account on such preceding Payment Date with
respect to such Class, plus interest on such excess to the extent permitted
by law, at the applicable Note Interest Rate for the related Interest
Accrual Period.
"Interest Rate Swap Agreement" shall mean the interest rate
swap as to the Class A-4 Notes with Xxxxxx Xxxxxxx Capital Services Inc.,
as Swap Counterparty, dated as of the Closing Date, to hedge the floating
interest Class A-4 Rate, including all schedules and confirmations thereto,
as the same may be amended, supplemented, renewed, extended or replaced
from time to time.
"Interest Reset Date" means, with respect to the floating rate
Class A-4 Notes, the first day of the Interest Accrual Period.
"Issuer" shall mean the Trust, unless a successor replaces it
and, thereafter, means the successor and for purposes of any provision
contained herein and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order
or request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"Last Scheduled Payment" shall mean, with respect to each Final
Payment Receivable, the amount referred to in the Contract related to such
Final Payment Receivable as the "last scheduled payment."
"Last Scheduled Payment Advance" shall mean, with respect to a
Final Payment Receivable, the amount, as of the close of business on the
last day of a Collection Period, which is required to be advanced by the
Servicer with respect to such Final Payment Receivable pursuant to Section
4.4(b) of the Sale and Servicing Agreement.
"Last Scheduled Payment Pool Balance" shall mean, for any
Payment Date, the aggregate principal balance of Last Scheduled Payments of
Final Payment Receivables as of the close of business on the last day of
the preceding Collection Period.
"Last Scheduled Payment Principal Collections" shall mean (a)
collections of principal on a Final Payment Receivable that are
attributable to Last Scheduled Payments, which includes any collection
attributable to principal on a Final Payment Receivable in excess of the
initial Level Pay Balance of that Receivable, whether or not such payment
is made on the due date of the related Last Scheduled Payment, and
including the proceeds of sale (net of expenses) of any Financed Vehicle
purchased by MMCA on behalf of the Trust pursuant to the terms of the
Receivable and subsequently sold on behalf of the Trust, minus (b) with
respect to any Final Payment Receivable with respect to which the Obligor
exercises its right to have MMCA, on behalf of the Trust, purchase the
related Financed Vehicle, the excess of the purchase price from the Obligor
of such Financed Vehicle over the remaining amount owed by the Obligor.
"Letter of Credit Bank" shall mean any Person having the
Required Rating that has provided a Yield Supplement Letter of Credit in
accordance with Section 5.1 of the Sale and Servicing Agreement.
"Level Pay Balance" shall mean, with respect to each Final
Payment Receivable, (i) initially the Amount Financed under such Final
Payment Receivable minus the principal portion of the Last Scheduled
Payment thereon and (ii) thereafter, shall be the amount set forth in
clause (i) minus all collections on or with respect to principal on such
Receivable other than amounts on deposit in the Payahead Account with
respect to future due dates; provided that such Level Pay Balance for any
Final Payment Receivable shall not be less than zero.
"Level Pay Pool Balance" shall mean, for any Payment Date, the
sum of (i) the aggregate Level Pay Balance of Final Payment Receivables and
(ii) the aggregate Principal Balance of the Receivables other than Final
Payment Receivables, as of the close of business on the last day of the
preceding Collection Period.
"LIBOR" shall mean the London Interbank Offered Rate for U.S.
dollar deposits for each Interest Accrual Period as determined by the
Calculation Agent, as follows:
(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 2.18%.
"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-4 Note.
"Lien" shall mean a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens, mechanics' or
materialmen's liens, judicial liens and any liens that may attach to a
Financed Vehicle by operation of law.
"Liquidation Proceeds" shall mean, with respect to a Defaulted
Receivable, the monies collected from whatever source during the Collection
Period in which such Receivable became a Defaulted Receivable, net of the
sum of (i) any expenses incurred by the Servicer in connection with
collection of such Receivable and the disposition of the Financed Vehicle
and (ii) any amounts required by law to be remitted to the Obligor.
"London and New York Banking Day" shall mean any business day
on which dealings in deposits in United States dollars are transacted in
the London and New York interbank markets.
"Long Deferment Period Receivable" shall mean any Deferred
Payment Receivable for which the period from the inception of the
Receivable to the date on which the first Scheduled Payment is due is
between 360 and 450 days.
"MART" shall mean MMCA Auto Receivables Trust, a Delaware
business trust, and its successors and assigns.
"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 MART, as
from time to time amended, supplemented or otherwise modified and in
effect.
"Maximum Negative Carry Amount" shall mean, as of any Payment
Date, the product of (i) (1) the Weighted Average Rate as of such Payment
Date multiplied by (2) the Note Percentage as of such Payment Date, minus
(3) 1.25%, multiplied by (ii) the sum of (1) product of (x) the Remaining
Pre-Funded Amount on that Payment Date and (y) the percentage equivalent of
a fraction, the numerator of which is the actual number of days until the
last day of the Pre-Funding Period and the denominator of which is 360,
plus (2) the product of (x) the Excess Reinvestment Amount on that Payment
Date and (y) the percentage equivalent of a fraction, the numerator of
which is the actual number of days until the last day of the Reinvestment
Period and the denominator of which is 360. The Maximum Negative Carry
Amount as of any Payment Date shall be calculated in the manner described
in the preceding sentence as an approximation of the maximum aggregate
amount of the Negative Carry Amounts for all subsequent Payment Dates.
"Minimum Adjusted Principal Balance of Long Deferment Period
Receivables" shall mean, with respect to the Initial Receivables, the
amount set forth in the table below for each of the following Payment
Dates:
Date Amount
------------------------------------------------------------------------------
March 2002 $444,033,163.25
April 2002 $438,260,732.13
May 2002 $432,488,301.01
June 2002 $426,715,869.88
July 2002 $420,943,438.75
August 2002 $415,171,007.63
September 2002 $409,398,576.52
October 2002 $403,626,145.40
November 2002 $397,853,714.28
December 2002 $392,081,283.15
January 2003 $386,307,903.93
February 2003 $380,528,647.02
March 2003 $369,901,685.77
April 2003 $359,384,720.10
May 2003 $348,979,283.99
June 2003 $338,686,929.27
The Minimum Adjusted Principal Balance of Long Deferment Period Receivables
will be recalculated to give effect to the acquisition by the Issuer of
Subsequent Receivables during the Pre-Funding Period.
"Minimum Adjusted Principal Balance of Receivables" shall mean
the amount set forth in the table below for each of the following Payment
Dates:
Date Amount
------------------------------------------------------------------------------
March 2002 $1,313,085,622.80
April 2002 $1,288,463,945.56
May 2002 $1,263,954,690.57
June 2002 $1,239,534,022.59
July 2002 $1,215,235,299.35
August 2002 $1,191,083,221.82
September 2002 $1,166,537,181.05
October 2002 $1,141,457,637.43
November 2002 $1,115,896,775.73
December 2002 $1,090,175,132.40
January 2003 $1,064,657,837.59
February 2003 $1,039,342,728.21
March 2003 $1,009,390,775.05
April 2003 $979,762,516.16
May 2003 $950,462,355.26
June 2003 $921,494,749.19
The Minimum Adjusted Principal Balance of Receivables will be recalculated
to give effect to the acquisition by the Issuer of Subsequent Receivables
during the Pre-Funding Period.
"Mitsubishi Motors" shall mean Mitsubishi Motors Corporation, a
Japanese corporation, and its successors and assigns, and any Affiliates
thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"MMSA" shall mean Mitsubishi Motors Sales of America, Inc., a
Delaware corporation, and its successors and assigns.
"Modified Receivable" shall have the meaning assigned thereto
in Section 3.2(a) of the Sale and Servicing Agreement.
"Monthly Accrued Note Interest" shall mean, with respect to any
Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class
on the aggregate principal balance of the Notes of such Class as of the
immediately preceding Payment Date, after giving effect to all payments of
principal to Noteholders of such Class on or prior to such preceding
Payment Date (or, in the case of the first Payment Date, the initial
principal amount of such Class of Notes); and (ii) with respect to the
Notes collectively, the sum of Monthly Accrued Note Interest for each
Class.
"Monthly Remittance Condition" shall have the meaning assigned
thereto in Section 4.1(e) of the Sale and Servicing Agreement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Negative Carry Account" shall mean the account established and
maintained pursuant to Section 4.1(d) of the Sale and Servicing Agreement.
"Negative Carry Account Initial Deposit" shall mean
$6,055,358.70.
"Negative Carry Account Shortfall" shall mean, as of any
Payment Date, the excess, if any, of the Required Negative Carry Account
Balance over the amount on deposit in the Negative Carry Account (after
giving effect to all deposits to and withdrawals from the Negative Carry
Account required to be made on such Payment Date and after giving effect to
any Excess Reinvestment Amount to the Reinvestment Account on such Payment
Date).
"Negative Carry Amount" shall mean, with respect to any Payment
Date, the difference (if positive) between (1) the product of (a) the
Monthly Accrued Note Interest for such Payment Date, multiplied by (b) the
Pre-Funded and Excess Reinvestment Percentage as of the immediately
preceding Payment Date or, in the case of the first Payment Date, the
Closing Date, minus (2) the sum of the Pre-Funding Account Investment
Earnings and Reinvestment Account Investment Earnings for the related
Collection Period (or, in the case of the first Payment Date, from the
Closing Date until the close of business on March 31, 2002).
"Net Swap Payment" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
the Issuer to the Swap Counterparty, excluding any Swap Termination
Payments.
"Net Swap Receipt" shall mean, with respect to the Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
the Swap Counterparty to the Issuer, excluding any Swap Termination
Payments.
"Note Depository Agreement" shall mean the agreement, dated as
of the Closing Date, among the Issuer, the Indenture Trustee, the
Administrator and The Depository Trust Company, as the initial Clearing
Agency, relating to the Notes.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class
A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate and the
Class C Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note,
the Person who is the beneficial owner of such Book-Entry Note, as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Note Payment Account" shall mean the account established and
maintained as such pursuant to Section 4.1(e) of the Sale and Servicing
Agreement.
"Note Percentage" shall mean, as of any Payment Date, the
percentage equivalent of a fraction, the numerator of which is the
aggregate principal amount of the Notes as of such Payment Date (after
giving effect to any payments of principal on such Payment Date), and the
denominator of which is an amount equal to the sum of the aggregate
principal amount of the Notes and the Certificate Balance, in each case as
of such Payment Date (after giving effect to any payment of principal on
such Payment Date).
"Note Pool Factor" shall mean, with respect to any Class of
Notes, as of the close of business on the last day of a Collection Period,
a seven-digit decimal figure equal to the outstanding principal balance of
such Class of Notes (after giving effect to any reductions thereof to be
made on the immediately following Payment Date) divided by the original
outstanding principal balance of such Class of Notes. Each Note Pool Factor
will be 1.0000000 as of the Closing Date; thereafter, the Note Pool Factor
will decline to reflect reductions in the outstanding principal amount of
such Class of Notes.
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a) of the Indenture.
"Noteholder" shall mean a Person in whose name a Note is
registered on the Note Register.
"Noteholders" shall mean the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders, the
Class B Noteholders and the Class C Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or
co-purchasers of the related Financed Vehicle purchased in part or in whole
by the execution and delivery of such Receivable, or any other Person who
owes or may be liable for payments under such Receivable.
"Officer's Certificate" shall mean (i) with respect to the
Trust, a certificate signed by any Responsible Officer of the Trust and
(ii) with respect to MART or the Servicer, a certificate signed by the
chairman, the president, any executive vice president, vice president or
the treasurer of MART or the Servicer, as applicable.
"Opinion of Counsel" shall mean (i) in the case of the Sale and
Servicing Agreement, a written opinion of counsel (who, in the case of
counsel to MART or the Servicer, may be an employee of, or outside counsel
to, MART or the Servicer), which counsel shall be acceptable to the
Indenture Trustee, the Owner Trustee or the Rating Agencies, as applicable,
and (ii) in the case of the Indenture, one or more written opinions of
counsel who may, except as otherwise expressly provided in the Indenture,
be employees of or counsel to the Issuer, MMCA or the Servicer and who
shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee as Indenture Trustee,
shall comply with the applicable requirements of Section 11.1 of the
Indenture, and shall be in form and substance satisfactory to the Indenture
Trustee.
"Optional Purchase Percentage" shall mean 10%.
"Outstanding" shall mean, as of the date of determination, all
Notes theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Notes (provided, however, that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to the
Indenture or provision for such notice has been made, satisfactory to
the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture
unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a protected purchaser;
provided, that in determining whether the Holders of the requisite
principal amount of the Notes Outstanding have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, MART, the Servicer or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, MART, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount
of all Notes Outstanding at the date of determination.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in, to and under the property and rights assigned to the Trust
pursuant to Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, its successors in interest and any
successor trustee under the Trust Agreement.
"Payahead" shall mean, with respect to an Actuarial Receivable,
the amount, as of the close of business on the last day of a Collection
Period, so designated in accordance with Section 4.3(a) of the Sale and
Servicing Agreement with respect to such Receivable.
"Payahead Account" shall mean the account established and
maintained as such pursuant to Section 4.1(g) of the Sale and Servicing
Agreement.
"Payahead Balance", with respect to an Actuarial Receivable,
shall mean the sum, as of the close of business on the last day of a
Collection Period, of all Payaheads made by or on behalf of the Obligor
with respect to such Actuarial Receivable (including any amount paid by or
on behalf of the Obligor prior to the related Cutoff Date that is due on or
after the related Cutoff Date and was not used to reduce the principal
balance of such Actuarial Receivable), as reduced by applications of
previous Payaheads with respect to such Actuarial Receivable, pursuant to
Sections 4.3(a) and 4.4 of the Sale and Servicing Agreement.
"Paying Agent" shall mean (i) with respect to the Trust
Agreement, any paying agent or co-paying agent appointed pursuant to
Section 3.9 thereto, and shall initially be Wilmington Trust Company, and
(ii) with respect to the Indenture, the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 thereto and is authorized by the Issuer to make
payments to and distributions from the Collection Account and the Note
Payment Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Payment Date" shall mean the fifteenth day of each month, or
if any such day is not a Business Day, the immediately following Business
Day, commencing April 15, 2002.
"Permitted Investments" shall mean, on any date of
determination, book-entry securities, negotiable instruments or securities
represented by instruments in bearer or registered form with maturities not
exceeding the Business Day preceding the next Payment Date which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the laws
of the United States of America or any state thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or State banking or depository institution authorities; provided,
however, that at the time of the investment or contractual commitment to
invest therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted thereby
(including funds for which the Indenture Trustee or the Owner Trustee or
any of their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of which
are backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b); and
(g) any other investment with respect to which the Trust or the
Servicer has received written notification from the Rating Agencies that
the acquisition of such investment as a Permitted Investment will not
result in a withdrawal or downgrading of the ratings on any Class of Notes
or the Certificates.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust,
unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Plan" shall mean an employee benefit plan subject to Title I
of ERISA, a plan or arrangement subject to Section 4975 of the Code, and
any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity or otherwise.
"Pool Balance" shall mean, as of any date of determination, the
aggregate Principal Balance of the Receivables (including the aggregate
Principal Balance of Last Scheduled Payments) as of the close of business
on the last day of the preceding Collection Period or, with respect to any
date of determination during the first Collection Period, as of the Initial
Cutoff Date, after giving effect to, with respect to such Collection
Period, (i) all payments received from Obligors (other than Payaheads),
(ii) all Advances to be made by the Servicer and (iii) all Purchase Amounts
to be remitted by MART or the Servicer, in each case for such Collection
Period, and reduced by the aggregate Principal Balance of Receivables that
became Defaulted Receivables during such Collection Period.
"Pre-Funded and Excess Reinvestment Percentage" shall mean, as
of any date of determination, the percentage equivalent of a fraction, the
numerator of which is the sum of the Excess Reinvestment Amount and the
Remaining Pre-Funded Amount (after giving effect to any deposits to and
withdrawals from the Pre-Funding Account on or prior to such date of
determination) as of such date of determination, and the denominator of
which is the sum of (1) the Pool Balance (after giving effect to all
conveyances of Subsequent Receivables to the Trust on or prior to such date
of determination), (2) the Excess Reinvestment Amount, and (3) the
Remaining Pre-Funded Amount (after giving effect to any deposits to and
withdrawals from the Pre-Funding Account on or prior to such date of
determination).
"Pre-Funding Account" shall mean the account established
pursuant to Section 4.1(b) of the Sale and Servicing Agreement.
"Pre-Funding Account Investment Earnings" shall mean, with
respect to any Collection Period, the interest and other income (net of
losses and expenses) earned on amounts on deposit in the Pre-Funding
Account during such Collection Period (after giving effect to any deposits
to and withdrawals from the Pre-Funding Account during or prior to such
Collection Period) and deposited to the Pre-Funding Account on or prior to
the related Payment Date.
"Pre-Funding Period" shall mean the period from and including
the Closing Date and ending on the earliest of (i) the last day of the
Collection Period on which the amount in the Pre-Funding Account (after
giving effect to any transfers of Receivables to the Trust after the
Closing Date and on or before such date) is less than $100,000, (ii) the
date on which an Event of Default or an Event of Servicing Termination
occurs, (iii) the date on which an Insolvency Event occurs with respect to
MART or the Servicer and (iv) the close of business on September 16, 2002.
"Predecessor Note" shall mean, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note and, for purposes of this
definition, any Note authenticated and delivered under Section 2.6 of the
Indenture in lieu of a mutilated, lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or
stolen Note.
"Prepayment Date" shall mean the Payment Date specified by the
Servicer pursuant to Section 9.2(a) of the Trust Agreement.
"Prepayment Price" shall mean an amount equal to the
Certificate Balance as of the applicable Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable
as of any date of determination, the Amount Financed minus the sum of the
following amounts: (i) in the case of an Actuarial Receivable, that portion
of all Scheduled Payments due on or prior to such date allocable to
principal computed in accordance with the Actuarial Method (to the extent
collected or advanced), (ii) in the case of a Simple Interest Receivable,
that portion of all Scheduled Payments actually received on or prior to
such date allocable to principal using the Simple Interest Method (to the
extent collected or advanced), (iii) any refunded portion of extended
warranty protection plan costs, or of physical damage, credit life, or
disability insurance premiums included in the Amount Financed and (iv) any
prepayment in full or partial prepayment applied to reduce the unpaid
principal balance of such Receivable. The Principal Balance of a Defaulted
Receivable shall be zero as of the beginning of the Collection Period
following the Collection Period in which it became a Defaulted Receivable.
"Principal Distribution Amount" shall mean, with respect to any
Payment Date, (i) the sum of the outstanding principal balance of the Notes
plus the Certificate Balance on such Payment Date (prior to any payments on
such Payment Date), minus (ii) the Adjusted Pool Balance as of the last day
of the preceding Collection Period, minus (iii) the Remaining Pre-Funded
Amount on such Payment Date, minus (iv) the Excess Reinvestment Amount on
such Payment Date; provided, however, that on the Stated Maturity Date for
each Class of Notes, the principal required to be deposited in the Note
Payment Account shall include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Payment Account on such
Payment Date and allocable to principal) to reduce the outstanding
principal amount of the Notes of such Class to zero.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Program" shall have the meaning assigned thereto in Section
3.11 of the Sale and Servicing Agreement.
"Prospectus" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of March 1, 2002, between MART and MMCA, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Purchase Amount" shall mean, with respect to a Payment Date
and a Receivable to be repurchased by MART or purchased by the Servicer on
such Payment Date, an amount equal to the sum of (a) the Principal Balance
of such Receivable as of the first day of the Collection Period preceding
the Collection Period in which such Payment Date occurs and (b) an amount
equal to the amount of accrued and unpaid interest on such Principal
Balance at the related APR from the date a payment was last made by or on
behalf of the Obligor through the due date for payment of such Receivable
in the Collection Period preceding the Collection Period in which such
Payment Date occurs and, in the case of clauses (a) and (b), after giving
effect to the receipt of monies collected on such Receivable in such
preceding Collection Period.
"Purchased Receivable" shall mean, on any date of
determination, a Receivable as to which payment of the Purchase Amount has
been made by MART pursuant to Section 2.3 of the Sale and Servicing
Agreement or by the Servicer pursuant to Section 3.7 or 9.1 of the Sale and
Servicing Agreement.
"Qualified Institution" shall mean Bank of Tokyo-Mitsubishi
Trust Company, a New York banking corporation, or any depository
institution organized under the laws of the United States of America or any
one of the states thereof or incorporated under the laws of a foreign
jurisdiction with a branch or agency located in the United States of
America or one of the states thereof qualified to take deposits and subject
to supervision and examination by federal or state banking authorities
which at all times has a short-term deposit rating of "Prime-1" by Xxxxx'x,
"A-1" by S&P and "F1" by Fitch Ratings and, in the case of any such
institution organized under the laws of the United States of America, whose
deposits are insured by the Federal Deposit Insurance Corporation or any
successor thereto.
"Qualified Institutional Buyer" has the meaning specified in
Rule 144A.
"Qualified Trust Institution" shall mean the corporate trust
department of Bank of Tokyo-Mitsubishi Trust Company or any other
institution organized under the laws of the United States of America or any
one of the states thereof or incorporated under the laws of a foreign
jurisdiction with a branch or agency located in the United States of
America or one of the states thereof qualified to take deposits and subject
to supervision and examination by federal or state banking authorities
which at all times (i) is authorized under such laws to act as a trustee or
in any other fiduciary capacity, (ii) has not less than one billion dollars
in assets under fiduciary management and (iii) has a long-term deposit
rating that satisfies the Rating Agency Condition.
"Rating Agency" shall mean Xxxxx'x, S&P or Fitch Ratings, and
together, the "Rating Agencies." If no such organization or successor is
any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by
the Issuer, notice of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have been given prior written notice
thereof and that each of the Rating Agencies shall have notified MART, the
Servicer, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the then current
rating of the Notes or the Certificates.
"Realized Losses" shall mean, with respect to each Payment Date
and each Receivable that became a Defaulted Receivable during the related
Collection Period, the excess of the Principal Balance of such Defaulted
Receivable (including the principal of a Last Scheduled Payment) over the
Liquidation Proceeds attributable to such Defaulted Receivable.
"Receivable" shall mean any Initial Receivable or Subsequent
Receivable, as the context may require.
"Receivable File" shall have the meaning assigned thereto in
Section 2.4 of the Sale and Servicing Agreement.
"Receivable Yield Supplement Amount" shall mean, with respect
to each Payment Date and each Receivable that was a Deferred Payment
Receivable as of the last day of the preceding Collection Period (other
than a Receivable which became a Defaulted Receivable or a Purchased
Receivable or any Receivable sold by the Indenture Trustee following an
Event of Default pursuant to Section 5.4 of the Indenture), an amount equal
to the product of (x) the Adjusted Principal Balance of such Receivable on
the first day of the preceding Collection Period, (y) the Initial Weighted
Average Rate plus 0.25%, and (z) 1/12.
"Receivables Purchase Price" shall mean $1,633,592,089.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or
(ii) for any Definitive Notes and for the Certificates, the fifteenth day
of the preceding month, unless such fifteenth day is not a Business Day, in
which case the immediately preceding Business Day.
"Recoveries" shall mean, with respect to any Collection Period
following the Collection Period in which such Receivable became a Defaulted
Receivable, all monies received by the Servicer with respect to such
Defaulted Receivable during any Collection Period, net of the sum of (i)
any expenses incurred by the Servicer in connection with the collection of
such Receivable and the disposition of the Financed Vehicle (to the extent
not previously reimbursed) and (ii) any payments on such Receivable
required by law to be remitted to the Obligor.
"Redemption Date" shall mean (a) in the case of a redemption of
Notes pursuant to Section 10.1(a) of the Indenture, the Payment Date
specified by the Servicer on which date the Indenture Trustee shall
withdraw any amount remaining in the Reserve Account and deposit the
applicable amount thereof payable to the Notes in the Note Payment Account
from any amount remaining in the Reserve Account and (b) in the case of a
redemption of Notes pursuant to Section 10.1(b) of the Indenture, the
Payment Date specified by the Servicer pursuant to Section 4.11(b) of the
Sale and Servicing Agreement.
"Redemption Price" shall mean (a) in the case of a redemption
of Notes pursuant to Section 10.1(a) of the Indenture, an amount equal to
the unpaid principal amount of the Notes redeemed plus accrued and unpaid
interest thereon as of the applicable Redemption Date and (b) in the case
of a redemption of Notes pursuant to Section 10.1(b) of the Indenture, an
amount equal to the lesser of (x) the Remaining Pre-Funded Amount withdrawn
from the Pre-Funding Account and deposited to the Collection Account on or
prior to the Redemption Date pursuant to Section 4.11(b) of the Sale and
Servicing Agreement and (y) the amount specified in clause (a) above.
"Registered Holder" shall mean the Person in whose name a Note
is registered on the Note Register on the applicable Record Date.
"Reinvested Amount" shall have the meaning assigned thereto in
Section 4.13(b) of the Sale and Servicing Agreement.
"Reinvestment Account" shall mean the account established
pursuant to Section 4.1(c) of the Sale and Servicing Agreement.
"Reinvestment Account Investment Earnings" shall mean, with
respect to any Collection Period, the interest and other income (net of
losses and expenses) earned on amounts on deposit in the Reinvestment
Account during such Collection Period and deposited to the Reinvestment
Account on or prior to the related Payment Date.
"Reinvestment Period" shall mean a period beginning on the
Closing Date and ending on June 16, 2003.
"Reinvestment Receivable" shall mean, with respect to any date,
any Subsequent Receivable acquired by MART from MMCA and transferred by
MART to the Trust prior to such date with the proceeds of prepayments on
Long Deferment Period Receivables.
"Relevant UCC" shall mean the Uniform Commercial Code as in
effect in any relevant jurisdiction. In the event that the Uniform
Commercial Code as in effect on the date hereof in any relevant
jurisdiction is revised subsequent to the date hereof, all references to
specific sections of the Uniform Commercial Code shall be deemed to be
references to the successor provisions of the Uniform Commercial Code.
"Remaining Pre-Funded Amount" shall have the meaning assigned
thereto in Section 4.11(b) of the Sale and Servicing Agreement.
"Repurchase Event" shall have the meaning specified in Section
6.2 of the Purchase Agreement.
"Required Negative Carry Account Balance" shall mean, as of any
Payment Date, the lesser of (i) the Negative Carry Account Initial Deposit
minus all previous withdrawals of the Negative Carry Amount from the
Negative Carry Account, including any withdrawals of the Negative Carry
Amount therefrom on such Payment Date, and (ii) the Maximum Negative Carry
Amount as of such Payment Date.
"Required Rating" shall mean a rating on short-term unsecured
debt obligations of "Prime-1" by Xxxxx'x, "A-1" by S&P and "F1+" by Fitch
Ratings, and any requirement that short-term unsecured debt obligations
have the "Required Rating" shall mean that such short-term unsecured debt
obligations have the foregoing required ratings from each of such Rating
Agencies.
"Required Reinvestment Amount" shall mean, with respect to any
Payment Date, an amount equal to the lesser of (i) the excess, if any, of
(a) the Minimum Adjusted Principal Balance of Long Deferment Period
Receivables, as of such Payment Date, over (b) the sum of (x) the total
Adjusted Principal Balance of Long Deferment Period Receivables, as of the
last day of the preceding Collection Period, (y) the aggregate Adjusted
Principal Balance of Reinvested Receivables as of the last day of the
preceding Collection Period and (z) the Excess Reinvestment Amount as of
the last day of the preceding Collection Period, and (ii) the excess, if
any, of the Minimum Adjusted Receivables Principal Balance over the
Adjusted Principal Balance of all Receivables, in each case, as of such
Payment Date.
"Reserve Account" shall mean the account established and
maintained as such pursuant to Section 4.7(a) of the Sale and Servicing
Agreement.
"Reserve Account Advance Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Reserve Account Amount" shall mean, with respect to any
Payment Date, the amount on deposit in the Reserve Account. Unless
specifically stated to the contrary, the Reserve Account Amount shall be
calculated after giving effect to all deposits and withdrawals therefrom on
the prior Payment Date (or, in the case of the first Payment Date, the
Closing Date) and all interest and other income (net of losses and
investment expenses) on such amounts during the related Collection Period.
"Reserve Account Initial Deposit" shall mean $13,130,856.23.
"Reserve Account Property" shall have the meaning assigned
thereto in Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account TRP Draw Amount" shall have the meaning
assigned thereto in Section 4.6(b) of the Sale and Servicing Agreement.
"Responsible Officer" shall mean (a) with respect to the
Indenture Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee with direct responsibility for the administration of the
Indenture and the other Basic Documents on behalf of the Indenture Trustee
and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, (b) with respect to the Owner
Trustee, any officer within the Corporate Trust Office of the Owner Trustee
with direct responsibility for administration of the Trust, including any
vice president, assistant vice president, secretary, assistant secretary,
financial services officer or any other officer of the Owner Trustee,
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject and shall also
mean any officer of the Administrator and (c) with respect to the Issuer,
any officer of the Owner Trustee who is authorized to act for or on behalf
of the Owner Trustee in matters relating to the Issuer and who is
identified on the list of Responsible Officers delivered by the Owner
Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and, for so long as
the Administration Agreement is in full force and effect, any officer of
the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant
to the Administration Agreement.
"Rule 144A" shall have the meaning assigned to such term in
Section 3.4(d)(i) of the Trust Agreement.
"Rule 144A Information" shall have the meaning assigned to such
term in Section 3.4(e) of the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies, Inc.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of March 1, 2002, by and among the Issuer,
MART and the Servicer, as from time to time amended, supplemented or
otherwise modified and in effect.
"Sale Price" shall mean, with respect to any Final Payment
Receivable, an amount equal to the Last Scheduled Payment, minus the sum of
any charges for Excess Wear and Tear and Excess Mileage and the amount of
any disposition fee payable to the Servicer.
"Schedule of Initial Receivables" shall mean the list of
Initial Receivables attached as Exhibit B to the Purchase Agreement.
"Schedule of Receivables" shall mean the Schedule of Initial
Receivables or any Schedule of Subsequent Receivables, as the context may
require.
"Schedule of Subsequent Receivables" shall mean any list of
Subsequent Receivables attached as Schedule A to the related First-Tier
Subsequent Assignment.
"Scheduled Payment" shall mean, for any Collection Period for
any Receivable, the amount indicated in such Receivable as required to be
paid by the Obligor in such Collection Period (without giving effect to
modifications of payment terms pursuant to Section 3.2 of the Sale and
Servicing Agreement or any rescheduling in any insolvency or similar
proceedings).
"Second-Tier Subsequent Assignment" shall have the meaning
assigned thereto in Section 2.1(d)(ii) of the Sale and Servicing Agreement.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities" shall have the meaning specified in the MART Trust
Agreement.
"Seller" shall mean MART, in its capacity as seller of the
Receivables under the Sale and Servicing Agreement, and each successor
thereto (in the same capacity) pursuant to Section 6.3 of the Sale and
Servicing Agreement.
"Servicer" shall mean MMCA, in its capacity as servicer under
the Sale and Servicing Agreement, and any successor Servicer thereunder.
"Servicer's Certificate" shall have the meaning assigned
thereto in Section 3.9 of the Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to any Payment Date,
the fee payable to the Servicer for services rendered during the related
Collection Period, determined pursuant to and defined in Section 3.8 of the
Sale and Servicing Agreement.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Receivables, whose name appears on a list of servicing officers attached to
an Officer's Certificate furnished on the Closing Date to the Owner Trustee
and the Indenture Trustee by the Servicer, as such list may be amended from
time to time by the Servicer in writing.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities.
"Simple Interest Method" shall mean the method of allocating a
fixed payment between principal and interest, pursuant to which the portion
of such payment that is allocated to interest is equal to the product of
the APR multiplied by the unpaid principal balance multiplied by the period
of time (expressed as a fraction of a year, based on the actual number of
days in the calendar month and a 365-day year) elapsed since the preceding
payment was made and the remainder of such payment is allocable to
principal.
"Simple Interest Receivable" shall mean any Receivable under
which the portion of a payment allocable to interest and the portion
allocable to principal is determined in accordance with the Simple Interest
Method.
"Specified Reserve Balance" shall mean, with respect to any
Payment Date, the lesser of (i) the sum of (a) 3.25% of the Adjusted
Principal Balance of the Initial Receivables as of the Initial Cutoff Date
and (b) 3.25% of the Adjusted Principal Balance of Subsequent Receivables
transferred to the Trust after that Payment Date, calculated as of the
related Subsequent Cutoff Dates and (ii) the outstanding principal amount
of the Notes as of such Payment Date (after giving effect to any principal
payment made on such Payment Date). Notwithstanding the foregoing, if (x)
each Rating Agency delivers a letter to the Indenture Trustee that the use
of any new formulation requested by MART would not cause a downgrade,
qualification or withdrawal of the then current rating on any Class of
Notes and (y) an Opinion of Counsel to the effect that the proposed change
will not adversely affect the status of the Notes as debt is delivered to
the Indenture Trustee, then the Specified Reserve Balance may be changed in
accordance with such letters without an amendment hereto.
"Specified Yield Supplement Account Balance" shall mean, (i) on
the Closing Date, $21,613,006.43, and (ii) as of the close of business on
any Payment Date, an amount equal to the sum of all projected Yield
Supplement Amounts for all future Payment Dates, assuming that no
prepayments are made on the Deferred Payment Receivables.
"Standard Receivable" shall mean all rights and obligations
under a Contract listed on a Schedule of Receivables which is not a Final
Payment Receivable.
"State" shall mean any of the 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, the Class B Stated Maturity Date
and the Class C Stated Maturity Date, collectively, or any of them, as the
context requires.
"Subsequent Cutoff Date" shall, with respect to any Subsequent
Receivable, have the meaning specified in the related First-Tier Subsequent
Assignment.
"Subsequent Payahead Account Deposit" shall mean, with respect
to any Subsequent Transfer Date, cash or Permitted Investments having a
value equal to the aggregate amount of the Payahead Balances as of the
related Subsequent Cutoff Date of the Subsequent Receivables conveyed to
the Trust on such Subsequent Transfer Date.
"Subsequent Receivable" shall mean each motor vehicle retail
installment sale contract described in a Schedule of Subsequent Receivables
attached as Schedule A to a First-Tier Subsequent Assignment (an identical
copy of which is attached as Schedule A to a related Second-Tier Subsequent
Assignment), and all rights and obligations thereunder and any amendments,
modifications or supplements to such motor vehicle retail installment sale
contract.
"Subsequent Receivables Purchase Price" shall have the meaning
specified in Section 2.2(b) of the Purchase Agreement.
"Subsequent Reserve Account Deposit" shall mean, with respect
to any Subsequent Transfer Date, cash or Permitted Investments having a
value approximately equal to 1.00% of the aggregate Adjusted Principal
Balance of the Subsequent Receivables conveyed to the Trust on such
Subsequent Transfer Date as of the close of business on the related
Subsequent Cutoff Date.
"Subsequent Transfer Date" shall mean, with respect to any
Subsequent Receivable, the Business Day on which the related First-Tier
Subsequent Assignment is executed and delivered.
"Subsequent Yield Supplement Account Deposit" shall mean, with
respect to any Subsequent Transfer Date, cash or Permitted Investments
having a value approximately equal to the sum of the projected Receivable
Yield Supplement Amounts for the Subsequent Receivables conveyed to the
Trust on such Subsequent Transfer Date for all future Payment Dates,
assuming the future Scheduled Payments on such Subsequent Receivables are
made on their scheduled due dates.
"Subtrust" shall have the meaning specified in the MART 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) of the Indenture.
"Supplemental Servicing Fee" shall mean, with respect to any
Payment Date, the fee payable to the Servicer for services rendered during
the related Collection Period, determined pursuant to and defined in
Section 3.8 of the Sale and Servicing Agreement.
"Swap Counterparty" shall initially mean Xxxxxx Xxxxxxx Capital
Services Inc., as swap counterparty under the Interest Rate Swap Agreement,
or any successor or replacement swap counterparty from time to time under
the Interest Rate Swap Agreement. A Swap Counterparty (or the institution
guaranteeing such Swap Counterparty's obligations) must have a long-term
rating at least equal to "A2" by Xxxxx'x and "A" by Fitch Ratings, and a
short-term rating at least equal to "A-1" by S&P and "F1" by Fitch Ratings
at the time of entering into the Interest Rate Swap Agreement.
"Swap Termination Payment" shall mean any termination payment
payable by the Issuer to the Swap Counterparty or by the Swap Counterparty
to the Issuer under the Interest Rate Swap Agreement.
"Telerate Page 3750" shall mean the display designated as page
"3750" by Telerate, Inc. (or such other page as may replace Telerate Page
3750 on that service for the purpose of displaying London interbank offered
rates of major banks).
"Total Available Funds" shall mean, for any Payment Date, an
amount equal to the sum of (i) the Available Funds for such Payment Date
and (ii) the Reserve Account TRP Draw Amount, if any, for such Payment
Date.
"Total Required Payment" shall mean, on any Payment Date, the
sum of (i) the Total Servicing Fee, (ii) any Net Swap Payments and any Swap
Termination Payments due and payable to the Swap Counterparty, (iii) the
Accrued Note Interest and (iv) the Principal Distribution Amount with
respect to such Payment Date.
"Total Servicing Fee" shall mean, with respect to any Payment
Date, the sum of (i) the Servicing Fee for the related Collection Period
plus (ii) all accrued and unpaid Servicing Fees for prior Collection
Periods.
"Total Yield Supplement Overcollateralization Amount" shall
mean, with respect to any Payment Date, the sum of the Yield Supplement
Overcollateralization Amounts with respect to all Receivables (other than
Purchased Receivables or Defaulted Receivables) as of such Payment Date.
"Transfer" shall have the meaning assigned to such term in
Section 3.2 of the Trust Agreement.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References
herein to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other
successor Treasury Regulations.
"Trust" shall mean MMCA Auto Owner Trust 2002-1, a Delaware
business trust.
"Trust Accounts" shall have the meaning assigned thereto in
Section 5.1(a) of the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of March 1, 2002, between MART and the Owner Trustee,
as the same may be amended, supplemented or otherwise modified and in
effect from time to time.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture for the benefit of the Noteholders and
the Swap Counterparty (including, without limitation, all property and
interests Granted to the Indenture Trustee), including all proceeds
thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture
Act of 1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, as of any date of determination,
the Initial Receivables and other property related thereto sold,
transferred, assigned and otherwise conveyed by MART to the Trust pursuant
to Section 2.1(a) of the Sale and Servicing Agreement together with the
Subsequent Receivables and other property related thereto sold,
transferred, assigned and otherwise conveyed by MART to the Trust pursuant
to Section 2.1(b) of the Sale and Servicing Agreement, on or prior to such
date of determination pursuant to any Second-Tier Subsequent Assignment.
"Underwriting Agreement" shall mean the Underwriting Agreement,
dated as of March 8, 2002, by and between Xxxxxx Xxxxxxx & Co.
Incorporated, as representative of the several underwriters of the Class A
Notes and as the sole underwriter of the Class B Notes and the Class C
Notes, and MART.
"Void Transfer" shall have the meaning assigned to such term in
Section 3.2 of the Trust Agreement.
"Weighted Average Rate" shall mean, with respect to any date of
determination, a per annum rate equal to (1) the sum of (a) the product of
(x) the outstanding principal amount of the Class A-1 Notes on such date
and (y) the Class A-1 Rate, plus (b) the product of (x) the outstanding
principal amount of the Class A-2 Notes on such date and (y) the Class A-2
Rate, plus (c) the product of (x) the outstanding principal amount of the
Class A-3 Notes on such date and (y) the Class A-3 Rate, plus (d) the
product of (x) the outstanding principal amount of the Class A-4 Notes on
such date and (y) the Class A-4 Rate, plus (e) the product of (x) the
outstanding principal amount of the Class B Notes on such date and (y) the
Class B Rate, plus (f) the product of (x) the outstanding principal amount
of the Class C Notes on such date and (y) the Class C Rate, divided by (2)
the sum of the outstanding principal amount of the Notes on such date plus
the Certificate Balance on such date; provided, that if the date of
determination is a Payment Date, then the outstanding principal amount of
any class of Notes shall be determined after giving effect to all payments
made on such date.
"Yield Supplement Account" shall have the meaning assigned
thereto in Section 5.1(a) of the Sale and Servicing Agreement.
"Yield Supplement Agreement" shall mean the Yield Supplement
Agreement, dated as of March 1, 2002, by and between MART and MMCA, as
amended, modified or supplemented from time to time, substantially in the
form of Exhibit D to the Sale and Servicing Agreement.
"Yield Supplement Amount" shall mean, with respect to any
Payment Date, the sum of all Receivable Yield Supplement Amounts for the
related Collection Period.
"Yield Supplement Letter of Credit" shall mean any letter of
credit issued by the Letter of Credit Bank, as permitted by Section 5.1 of
the Sale and Servicing Agreement, to support payments of the Yield
Supplement Amount under the Yield Supplement Agreement.
"Yield Supplement Overcollateralization Amount" shall mean,
with respect to any Payment Date and any Receivable (other than a Purchased
Receivable or a Defaulted Receivable), an amount equal to the excess of (i)
the present value of the remaining Scheduled Payments due under such
Receivable as of the later to occur of (x) the last day of the preceding
Collection Period and (y) the first date on which interest accrues on such
Receivable as set forth in the related Contract, discounted at a rate equal
to the APR of such Receivable, over (ii) the present value of the remaining
Scheduled Payments due under such Receivable as set forth in clause (i)
above, discounted at a rate equal to the greater of the APR of the
Receivable and 6.75%. For the purposes of the foregoing calculation, the
Payahead Balance with respect to any Actuarial Receivable shall be applied
to reduce the amount of any Scheduled Payment on the related Actuarial
Receivable in the order in which such Scheduled Payments were due.