Exhibit 4.3
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INDENTURE
between
MMCA AUTO OWNER TRUST 2001-1,
as Issuer,
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of April 1, 2001
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$140,000,000 4.6363% Class A-1 Asset Backed Notes
$165,000,000 Floating Rate Class A-2 Asset Backed Notes
$350,000,000 Floating Rate Class A-3 Asset Backed Notes
$193,022,000 5.34% Class A-4 Asset Backed Notes
$64,095,000 6.19% Class B Asset Backed Notes
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CROSS REFERENCE TABLE1
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TIA Indenture
Section Section
------- -------
310 (a)(1)............................................................... 6.11
(a)(2)............................................................. 6.11
(a)(3)............................................................. 6.10
(a)(4)........................................................... N.A.2
(a)(5)............................................................. 6.11
(b) .......................................................... 6.8; 6.11
(c) .............................................................. N.A.
311 (a) ................................................................ 6.12
(b) .............................................................. 6.12
(c) .............................................................. N.A.
312 (a) ................................................................ 7.1
(b) .............................................................. 7.2
(c) .............................................................. 7.2
313 (a) ................................................................ 7.4
(b)(1)............................................................. 7.4
(b)(2)..........................................................7.4; 11.5
(c) .................................................................7.4
(d) .............................................................. 7.3
314 (a) ................................................................. 7.3
(b) ............................................................. 11.15
(c)(1)............................................................. 11.1
(c)(2)............................................................. 11.1
(c)(3)............................................................. 11.1
(d) .............................................................. 11.1
(e) .............................................................. 11.1
(f) .............................................................. 11.1
315 (a) ................................................................ 6.1
(b) ...........................................................6.5; 11.5
(c) .............................................................. 6.1
(d) .............................................................. 6.1
(e) .............................................................. 5.13
316 (a) (last sentence).................................................. 1.1
(a)(1)(A).......................................................... 5.11
(a)(1)(B).......................................................... 5.12
(a)(2)............................................................. N.A.
(b) .............................................................. 5.7
(c) .............................................................. N.A
317 (a)(1)............................................................... 5.3
(a)(2)............................................................. 5.3
(b) .............................................................. 3.3
318 (a) ................................................................ 11.7
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions......................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act...............13
SECTION 1.3 Rules of Construction...........................................13
ARTICLE II
THE NOTES
SECTION 2.1 Form .......................................................14
SECTION 2.2 Execution, Authentication and Delivery..........................14
SECTION 2.3 Temporary Notes.................................................15
SECTION 2.4 Tax Treatment...................................................15
SECTION 2.5 Registration; Registration of Transfer and Exchange.............15
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes......................17
SECTION 2.7 Persons Deemed Owner............................................18
SECTION 2.8 Payments .......................................................18
SECTION 2.9 Cancellation....................................................22
SECTION 2.10 Release of Collateral...........................................22
SECTION 2.11 Book-Entry Notes................................................22
SECTION 2.12 Notices to Clearing Agency......................................23
SECTION 2.13 Definitive Notes................................................23
SECTION 2.14 Authenticating Agents...........................................24
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant................................................25
SECTION 3.2 Maintenance of Office or Agency.................................25
SECTION 3.3 Money for Payments To Be Held in Trust..........................25
SECTION 3.4 Existence.......................................................27
SECTION 3.5 Protection of Trust Estate......................................27
SECTION 3.6 Opinions as to Trust Estate.....................................27
SECTION 3.7 Performance of Obligations; Servicing of Receivables............28
SECTION 3.8 Negative Covenants..............................................29
SECTION 3.9 Annual Statement as to Compliance...............................30
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.............30
SECTION 3.11 Successor or Transferee.........................................32
SECTION 3.12 No Other Business...............................................32
SECTION 3.13 No Borrowing....................................................32
SECTION 3.14 Servicer's Obligations..........................................32
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities...............32
SECTION 3.16 Capital Expenditures............................................33
SECTION 3.17 Further Instruments and Acts....................................33
SECTION 3.18 Restricted Payments.............................................33
SECTION 3.19 Notice of Events of Default.....................................33
SECTION 3.20 Removal of Administrator........................................33
SECTION 3.21 Calculation Agent...............................................33
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.........................34
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes.............35
SECTION 4.3 Application of Trust Money......................................36
SECTION 4.4 Repayment of Monies Held by Paying Agent........................36
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default...............................................36
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..............38
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee..................38
SECTION 5.4 Remedies; Priorities............................................41
SECTION 5.5 Optional Preservation of the Receivables........................42
SECTION 5.6 Limitation of Suits.............................................42
SECTION 5.7 Unconditional Rights of Noteholders
To Receive Principal and Interest...............................43
SECTION 5.8 Restoration of Rights and Remedies..............................43
SECTION 5.9 Rights and Remedies Cumulative..................................43
SECTION 5.10 Delay or Omission Not a Waiver..................................43
SECTION 5.11 Control by Noteholders..........................................43
SECTION 5.12 Waiver of Past Defaults.........................................44
SECTION 5.13 Undertaking for Costs...........................................44
SECTION 5.14 Waiver of Stay or Extension Laws................................44
SECTION 5.15 Action on Notes.................................................45
SECTION 5.16 Performance and Enforcement of Certain Obligations..............45
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.....................................46
SECTION 6.2 Rights of Indenture Trustee.....................................48
SECTION 6.3 Individual Rights of Indenture Trustee..........................48
SECTION 6.4 Indenture Trustee's Disclaimer..................................49
SECTION 6.5 Notice of Defaults..............................................49
SECTION 6.6 Reports by Indenture Trustee to Holders.........................49
SECTION 6.7 Compensation and Indemnity......................................49
SECTION 6.8 Replacement of Indenture Trustee................................50
SECTION 6.9 Successor Indenture Trustee by Merger...........................51
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee......................................51
SECTION 6.11 Eligibility; Disqualification...................................52
SECTION 6.12 Preferential Collection of Claims Against Issuer................53
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses...........53
SECTION 6.14 Interest Rate Swap Provisions...................................53
ARTICLE VII
NOTEHOLDERS' LISTS; REPORTING
SECTION 7.1 Issuer To Furnish Indenture Trustee
Names and Addresses of Noteholders..............................55
SECTION 7.2 Preservation of Information; Communications
to Noteholders..................................................55
SECTION 7.3 Reporting by Issuer.............................................55
SECTION 7.4 Reporting and Notices by Indenture Trustee......................56
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.............................................56
SECTION 8.2 Trust Accounts..................................................57
SECTION 8.3 General Provisions Regarding Accounts...........................57
SECTION 8.4 Release of Trust Estate.........................................58
SECTION 8.5 Opinion of Counsel..............................................58
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without
Consent of Noteholders..........................................59
SECTION 9.2 Supplemental Indentures with Consent
of Noteholders..................................................60
SECTION 9.3 Execution of Supplemental Indentures............................62
SECTION 9.4 Effect of Supplemental Indenture................................62
SECTION 9.5 Conformity with Trust Indenture Act.............................62
SECTION 9.6 Reference in Notes to Supplemental Indentures...................62
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption......................................................63
SECTION 10.2 Form of Redemption Notice.......................................63
SECTION 10.3 Notes Payable on Redemption Date................................63
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.......................64
SECTION 11.2 Form of Documents Delivered to Indenture Trustee................65
SECTION 11.3 Acts of Noteholders.............................................66
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agencies......................................67
SECTION 11.5 Notices to Noteholders; Waiver..................................67
SECTION 11.6 Alternate Payment and Notice Provisions.........................68
SECTION 11.7 Conflict with Trust Indenture Act...............................68
SECTION 11.8 Effect of Headings and Table of Contents........................68
SECTION 11.9 Successors and Assigns..........................................68
SECTION 11.10 Separability....................................................68
SECTION 11.11 Benefits of Indenture...........................................69
SECTION 11.12 Legal Holiday...................................................69
SECTION 11.13 Governing Law...................................................69
SECTION 11.14 Counterparts....................................................69
SECTION 11.15 Recording of Indenture..........................................69
SECTION 11.16 Trust Obligation................................................69
SECTION 11.17 No Petition; Subordination; Claims Against Seller...............70
SECTION 11.18 Inspection......................................................70
SECTION 11.19 Employee Benefit Plans. .......................................70
SCHEDULES
SCHEDULE A Schedule of Receivables.......................................SA-1
SCHEDULE I List of Permitted Investments.................................SI-1
EXHIBITS
EXHIBIT A-1 Form of Class A-1 Note.......................................A-1-1
EXHIBIT A-2 Form of Class A-2 Note ...................................A-2-1
EXHIBIT A-3 Form of Class A-3 Note.......................................A-3-1
EXHIBIT A-4 Form of Class A-4 Note.......................................A-4-1
EXHIBIT B Form of Class B Note...........................................B-1
EXHIBIT C Form of Opinion of Counsel Pursuant to Section 3.6(a)..........C-1
INDENTURE, dated as of April 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, this "Indenture"),
between MMCA AUTO OWNER TRUST 2001-1, 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 as agent for
the Swap Counterparties, and not in its individual capacity (in such
capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the holders of the Issuer's
4.6363% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), Class A-2
Floating Rate Asset Backed Notes (the "Class A-2 Notes"), Class A-3
Floating Rate Asset Backed Notes (the "Class A-3 Notes"), 5.34% Class A-4
Asset Backed Notes (the "Class A-4 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes")
and 6.19% Class B Asset Backed Notes (the "Class B Notes" and together with
the Class A Notes, the "Notes") and the Swap Counterparties:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing
Date, as Indenture Trustee for the benefit of the Holders of the Notes and
the Swap Counterparties, all of the Issuer's right, title and interest in,
to and under, whether now owned or existing or hereafter acquired or
arising (a) the Receivables; (b) with respect to Actuarial Receivables,
monies due thereunder after the Cutoff Date (including Payaheads) and, with
respect to Simple Interest Receivables, monies received thereunder after
the Cutoff Date; (c) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of
the Issuer in the Financed Vehicles; (d) all rights to receive proceeds
with respect to the Receivables from claims on any physical damage, theft,
credit life or disability insurance policies covering the Financed Vehicles
or Obligors; (e) all rights to receive proceeds with respect to the
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements; (f) all rights to the Receivable Files; (g) the Trust Accounts
and all amounts, securities, financial assets, investments and other
property deposited in or credited to any of the foregoing and all proceeds
thereof; (h) all rights under the Sale and Servicing Agreement and the
Yield Supplement Agreement; (i) all rights under the Purchase Agreement,
including the right of the Seller to cause MMCA to repurchase Receivables
from the Seller; (j) all payments and proceeds with respect to the
Receivables held by the Servicer; (k) all property (including the right to
receive Liquidation Proceeds and Recoveries and Financed Vehicles and the
proceeds thereof acquired by the Issuer pursuant to the terms of a Final
Payment Receivable), guarantees and other collateral securing a Receivable
(other than a Receivable purchased by the Servicer or repurchased by the
Seller); (l) all rebates of premiums and other amounts relating to
insurance policies and other items financed under the Receivables in effect
as of the Cutoff Date; (m) all of the Issuer's rights in the Interest Rate
Swap Agreements; and (n) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and
all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure (a) the payment of
principal of and interest on, and any other amounts owing in respect of,
the Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture, and (b) the payment of amounts payable to the
Swap Counterparties under the Interest Rate Swap Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes and the Swap Counterparties, acknowledges such Grant,
accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Holders of the Notes and the Swap Counterparties may be adequately and
effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. (a) Except as otherwise specified herein
or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture.
"Accrued Note Interest" shall mean, with respect to any Payment
Date and each Class of Notes, the sum of the Monthly Accrued Note Interest
and the Interest Carryover Shortfall for such Class for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a).
"Administration Agreement" shall mean the Administration
Agreement, dated as of April 1, 2001, by and among the Administrator, the
Issuer and the Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Administrator" shall mean Mitsubishi Motors Credit of America,
Inc., a Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Authenticating Agent" shall have the meaning specified in Section
2.14.
"Basic Documents" shall mean this Indenture, the Certificate of
Trust, the Trust Agreement, the Assignments (as defined in the Purchase
Agreement), the Sale and Servicing Agreement, the Purchase Agreement, the
Administration Agreement, the Note Depository Agreement, the Interest Rate
Swap Agreements, the Yield Supplement Agreement, the Control Agreement and
other documents and certificates delivered in connection therewith as the
same may from time to time be amended, supplemented or otherwise modified
and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions or trust companies in New York, New
York, Wilmington, Delaware or Los Angeles, California are authorized or
obligated by law, regulation or executive order to be closed.
"Calculation Agent" shall have the meaning specified in Section
3.21.
"Certificate of Trust" shall mean the certificate of trust of the
Issuer substantially in the form of Exhibit C to the Trust Agreement.
"Class" shall mean a class of Notes, which may be the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes or the
Class B Notes.
"Class A Noteholder" shall mean the Person in whose name a Class A
Note is registered in the Note Register.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A-1 Final Payment Date" shall mean the April 2002 Payment
Date.
"Class A-1 Noteholder" shall mean the Person in whose name a Class
A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $140,000,000 aggregate initial
principal amount of 4.6363% Class A-1 Asset Backed Notes issued by the
Issuer pursuant to this Indenture, substantially in the form of Exhibit A-1
to this Indenture.
"Class A-1 Rate" shall mean 4.6363% per annum.
"Class A-2 Final Payment Date" shall mean the August 2003 Payment
Date.
"Class A-2 Interest Rate Swap" shall mean the interest rate swap
as to the Class A-2 Notes with Xxxxxxx Xxxxx Capital Services, Inc., as
Swap Counterparty, to hedge the floating interest Class A-2 Rate.
"Class A-2 Noteholder" shall mean the Person in whose name a Class
A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $165,000,000 aggregate initial
principal amount of Class A-2 Floating Rate Asset Backed Notes issued by
the Issuer pursuant to this Indenture, substantially in the form of Exhibit
A-2 to this Indenture.
"Class A-2 Rate" shall mean one-month LIBOR plus 0.11%.
"Class A-3 Final Payment Date" shall mean the May 2005 Payment
Date.
"Class A-3 Interest Rate Swap" shall mean the interest rate swap
as to the Class A-3 Notes with Xxxxxxx Xxxxx Capital Services, Inc., as
Swap Counterparty, to hedge the floating interest Class A-3 Rate.
"Class A-3 Noteholder" shall mean the Person in whose name a Class
A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $350,000,000 aggregate initial
principal amount of Class A-3 Floating Rate Asset Backed Notes issued by
the Issuer pursuant to this Indenture, substantially in the form of Exhibit
A-3 to this Indenture.
"Class A-3 Rate" shall mean one-month LIBOR plus 0.18%.
"Class A-4 Final Payment Date" shall mean the December 2005
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 $193,022,000 aggregate initial
principal amount of 5.34% Class A-4 Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit A-4 to
this Indenture.
"Class A-4 Rate" shall mean 5.34% per annum.
"Class B Final Payment Date" shall mean the June 2007 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 $64,095,000 aggregate initial
principal amount of 6.19% Class B Asset Backed Notes issued by the Issuer
pursuant to this Indenture, substantially in the form of Exhibit B to this
Indenture.
"Class B Rate" shall mean 6.19% per annum.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" shall mean April 18, 2001.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations, including proposed or
temporary regulations, promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting
Clause of this Indenture.
"Commission" shall mean the Securities and Exchange Commission.
"Control Agreement" shall mean the Securities Account Control
Agreement, dated as of April 1, 2001, by and among the Seller, the Issuer,
the Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust
Company in its capacity as a securities intermediary, as the same may from
time to time be amended, supplemented or otherwise modified and in effect.
"Corporate Trust Office" shall mean the principal office of the
Indenture Trustee at which at any particular time its corporate trust
business shall be administered, which office at date of execution of this
Indenture is located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Corporate Trust Department, or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" shall mean any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in Section
2.11.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" shall have the meaning specified in Section
5.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Executive Officer" shall mean, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation and, with respect to any
partnership, any general partner thereof.
"Final Payment Date" shall mean the Class A-1 Final Payment Date,
the Class A-2 Final Payment Date, the Class A-3 Final Payment Date, the
Class A-4 Final Payment Date and the Class B Final Payment Date,
collectively, or any of them, as the context requires.
"Final Scheduled Maturity Date" shall mean with respect to any
Receivable, December 27, 2006.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to xxxxx x
xxxx upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to this Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all
rights, powers and options (but none of the obligations) of the granting
party thereunder, including the immediate and continuing right to claim
for, collect, receive and give receipt for principal and interest payments
in respect of the Collateral and all other monies payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the granting party or otherwise, and generally to do and receive
anything that the granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" or "Noteholder" shall mean the Person in whose name a
Note is registered on the Note Register.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, a New York banking corporation, as Indenture Trustee under this
Indenture, or any successor Indenture Trustee under this Indenture.
"Independent" shall mean, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any
other obligor on the Notes, the Seller and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the Seller or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" shall mean a certificate or opinion to
be delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
made by an Independent appraiser or other expert appointed by an Issuer
Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read
the definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Index Maturity" shall mean one month.
"Interest Accrual Period" shall mean, with respect to any Payment
Date, and with respect to the Class A-4 Notes and the Class B Notes, the
period from and including the 15th day of the calendar month immediately
preceding such Payment Date to but excluding the 15th day of the calendar
month in which such Payment Date occurs and, with respect to the Class A-1
Notes, the Class A-2 Notes and the Class A-3 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 through May 14, 2001.
"Interest Carryover Shortfall" shall mean, with respect to any
Payment Date and any Class of Notes, the excess of the sum of the Monthly
Accrued Note Interest for the preceding Payment Date and any outstanding
Interest Carryover Shortfall from the close of business on such preceding
Payment Date, over the amount in respect of interest that is actually
deposited in the Note Payment Account on such preceding Payment Date with
respect to such Class, plus interest on such excess, to the extent
permitted by law, at the applicable Note Interest Rate for the related
Interest Accrual Period.
"Interest Rate Swap Agreements" shall mean the interest rate swap
agreement relating to the Class A-2 Interest Rate Swap and the interest
rate swap agreement relating to the Class A-3 Interest Rate Swap, including
all schedules and confirmations thereto, between the Issuer and the related
Swap Counterparty, as the same may be amended, supplemented, renewed,
extended or replaced from time to time, which agreements provide for
payments on notional amounts equal to the outstanding principal balance of
either the Class A-2 Notes or Class A-3 Notes, as the case may be. Each
Interest Rate Swap Agreement shall provide that a termination event will
occur thereunder if (a) the long-term rating of the Swap Counterparty is
downgraded below a rating of "A2" by Xxxxx'x or "A" by Fitch, or is
suspended or withdrawn by either Rating Agency, (b) the short-term rating
of the Swap Counterparty is downgraded below a rating of "F-1" by Fitch or
"A-1" by S&P, or is suspended or withdrawn by either Rating Agency, or (c)
notice is given to the Indenture Trustee or Administrator by any Rating
Agency that the credit support, if any, with respect to the Swap
Counterparty is no longer deemed adequate to maintain the then-current
ratings on the Class A-2 Notes or the Class A-3 Notes, as the case may be,
and within 30 days of any such downgrade, suspension, withdrawal or
notification, the Swap Counterparty fails to (i) in the case of a downgrade
by Xxxxx'x or Fitch, deliver or post collateral acceptable to the Issuer in
amounts sufficient to secure its obligations under such Interest Rate Swap
Agreement, (ii) in the case of a downgrade by Xxxxx'x, Fitch or S&P, assign
its rights and obligations under such Interest Rate Swap Agreement to a
replacement counterparty acceptable to the Issuer or (iii) in the case of a
downgrade by Xxxxx'x, Fitch or S&P, establish other arrangements necessary,
if any, in each case so that the Rating Agencies confirm the ratings of the
Notes that were in effect immediately prior to such downgrade, suspension,
withdrawal or notification.
"Interest Reset Date" means, with respect to the floating rate
Class A-2 Notes and the Class A-3 Notes, the first day of the applicable
Interest Accrual Period.
"Issuer" shall mean MMCA Auto Owner Trust 2001-1, unless a
successor replaces it and, thereafter, means the successor and for purposes
of any provision contained herein and required by the TIA, each other
obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order or
request signed in the name of the Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee.
"LIBOR" shall mean the London Interbank Offered Rate for U.S.
dollar deposits for each Interest Accrual Period as determined by the
Calculation Agent, as follows:
(1) On or as of the LIBOR Determination Date, the Calculation Agent
will obtain the rate for deposits in U.S. dollars for a period of
the Index Maturity, commencing on such Interest Reset Date, which
appears on the Telerate Page 3750, as of 11:00 a.m., London time,
on such LIBOR Determination Date.
(2) If the Calculation Agent determines that Telerate Page 3750 or
such page as may replace Telerate Page 3750 is not available on
such LIBOR Determination Date, the Calculation Agent will request
the principal London offices of each of four major banks in the
London interbank market selected by such Calculation Agent to
provide such Calculation Agent with its offered quotations for
deposits in U.S. dollars for a period of the Index Maturity,
commencing on such Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 a.m., London time,
on such LIBOR Determination Date and in a principal amount equal
to an amount of not less than U.S.$1,000,000 that is
representative of a single transaction in such market at such
time. If at least two such quotations are provided, LIBOR for
such Interest Period will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR
for such Interest 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 such LIBOR Determination Date
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 Period will be the same as
LIBOR for the immediately preceding Interest Period;
provided, however, that LIBOR with respect to interest accrued
from the Closing Date until the first Payment Date shall be equal
to 5.79250%.
"LIBOR Determination Date" shall mean the second London Banking
Day prior to the Interest Reset Date for the related
Interest Accrual Period.
"London Banking Day" shall mean any business day on which dealings
in deposits in United States dollars are transacted in the London interbank
market.
"MART Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of October 1, 1999, between MMCA, as beneficiary, and
Chase Manhattan Bank USA, N.A., a national banking association (as
successor to Chase Manhattan Bank Delaware), as trustee, relating to the
Seller, as from time to time amended, supplemented or otherwise modified
and in effect.
"Monthly Accrued Note Interest" shall mean, with respect to any
Payment Date and (i) any Class of Notes, interest accrued for the related
Interest Accrual Period at the applicable Note Interest Rate for such Class
on the aggregate principal amount of the Notes of such Class as of the
immediately preceding Payment Date, after giving effect to all payments of
principal to Noteholders on or prior to such preceding Payment Date (or, in
the case of the first Payment Date, the initial principal amount of the
Notes); and (ii) with respect to the Notes collectively, the sum of Monthly
Accrued Note Interest for each Class.
"Net Swap Payment" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
the Issuer to such Swap Counterparty, excluding any Swap Termination
Payments.
"Net Swap Receipt" shall mean, with respect to any Swap
Counterparty on any Payment Date, the net amount, if any, then payable by
such Swap Counterparty to the Issuer, excluding any Swap Termination
Payments.
"Note Depository Agreement" shall mean the agreement dated as of
April 18, 2001, among the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company, as the initial Clearing Agency, relating
to the Notes.
"Note Interest Rate" shall mean, in the case of the Class A-1
Notes, the Class A- 1 Rate, in the case of the Class A-2 Notes, the Class
A-2 Rate, in the case of the Class A-3 Notes, the Class A-3 Rate, in the
case of the Class A-4 Notes, the Class A-4 Rate, and in the case of the
Class B Notes, the Class B Rate.
"Note Owner" shall mean, with respect to any Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with
the rules of such Clearing Agency).
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5(a).
"Noteholders" shall mean the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and the
Class B Noteholders, collectively.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes, collectively.
"Officer's Certificate" shall mean a certificate signed by any
Responsible Officer of the Issuer, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Responsible Officer of the Issuer.
"Opinion of Counsel" shall mean one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture,
be employees of or counsel to the Issuer, MMCA or the Servicer and who
shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee as Indenture Trustee,
shall comply with the applicable requirements of Section 11.1, and shall be
in form and substance satisfactory to the Indenture Trustee.
"Outstanding" shall mean, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note
Registrar or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for
which money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes (provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which
other Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a protected purchaser;
provided, that in determining whether the Holders of the requisite
principal amount of the Notes Outstanding have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, the Seller, the Servicer or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
on any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount of
all Notes Outstanding at the date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, or any successor Owner Trustee under the
Trust Agreement.
"Paying Agent" shall mean the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 and is authorized by the Issuer to make payments
to and distributions from the Collection Account and the Note Payment
Account, including payment of principal of or interest on the Notes on
behalf of the Issuer.
"Payment Date" shall mean the 15th day of each month, or if any
such day is not a Business Day, the immediately following Business Day,
commencing May 15, 2001.
"Plan" shall mean an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code, and any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or otherwise.
"Predecessor Note" shall mean, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note and, for purposes of this
definition, any Note authenticated and delivered under Section 2.6 in lieu
of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency" shall mean S&P, Xxxxx'x or Fitch, and together,
the "Rating Agencies." If no such organization or successor is any longer
in existence, "Rating Agency" shall be a nationally recognized statistical
rating organization or other comparable Person designated by the Issuer,
notice of which designation shall be given to the Indenture Trustee, the
Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have been given prior written notice thereof
and that each of the Rating Agencies shall have notified the Seller, the
Servicer, the Indenture Trustee and the Owner Trustee that such action
shall not result in a reduction or withdrawal of the then current rating
assigned to any Class of Notes.
"Record Date" shall mean, with respect to a Payment Date or
Redemption Date, (i) for any Book-Entry Notes, the close of business on the
Business Day immediately preceding such Payment Date or Redemption Date or,
(ii) for any Definitive Notes that have been issued pursuant to Section
2.13, the fifteenth (15th) day of the preceding month, unless such
fifteenth (15th) day is not a Business Day, in which case the immediately
preceding Business Day.
"Redemption Date" shall mean, in the case of a redemption of Notes
pursuant to Section 10.1, the Payment Date specified by the Servicer
pursuant to Section 10.1 on which date the Indenture Trustee shall withdraw
any amount remaining in the Reserve Account and deposit the applicable
amount thereof payable to the Notes in the Note Payment Account from any
amount remaining in the Reserve Account.
"Redemption Price" shall mean, in the case of a redemption of
Notes pursuant to Section 10.1, an amount equal to the unpaid principal
amount of the Notes redeemed plus accrued and unpaid interest thereon as of
the applicable Redemption Date.
"Registered Holder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" shall mean, (a) with respect to the Issuer,
any officer of the Owner Trustee who is authorized to act for or on behalf
of the Owner Trustee in matters relating to the Issuer and who is
identified on the list of Responsible Officers delivered by the Owner
Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and, for so long as
the Administration Agreement is in full force and effect, any officer of
the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant
to the Administration Agreement and (b) with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee with direct responsibility for the administration of this Indenture
and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of April 1, 2001, by and among the Issuer, the Seller
and the Servicer, as from time to time amended, supplemented or otherwise
modified and in effect.
"Securities" shall have the meaning specified in the MART Trust
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean MMCA Auto Receivables Trust, a Delaware
business trust, in its capacity as seller under the Sale and Servicing
Agreement, and its successors-in-interest.
"Servicer" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, in its capacity as servicer under the Sale and
Servicing Agreement, and any successor Servicer thereunder.
"State" shall mean any of the fifty States of the United States of
America or the District of Columbia.
"Subtrust" shall have the meaning specified in the MART Trust
Agreement.
"Subtrust Assets" shall have the meaning specified in the MART
Trust Agreement.
"Successor Servicer" shall have the meaning specified in Section
3.7(e).
"Swap Counterparty" shall initially mean Xxxxxxx Xxxxx Capital
Services, Inc. as swap counterparty under the Interest Rate Swap
Agreements, or any successors or replacement swap counterparties from time
to time under any Interest Rate Swap Agreement. Each Swap Counterparty (or
the institution guaranteeing such Swap Counterparty's obligations) must
have a long-term rating at least equal to "A2" by Xxxxx'x and "A" by Fitch,
and a short-term rating at least equal to "A-1" by S&P and "F-1" by Fitch
at the time of entering into the Interest Rate Swap Agreements.
"Swap Termination Payment" shall mean any termination payment
payable by the Issuer to a Swap Counterparty or by a Swap Counterparty to
the Issuer under an 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 Required Payment" shall mean, on any Payment Date, the sum
of (i) the Total Servicing Fee, (ii) any Net Swap Payments and any Swap
Termination Payments due and payable to the Swap Counterparty, (iii) the
Accrued Note Interest and (iv) the Principal Distribution Amount with
respect to such Payment Date.
"Trust Estate" shall mean all money, instruments, rights and other
property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Noteholders and
the Swap Counterparties (including, without limitation, all property and
interests Granted to the Indenture Trustee), including all proceeds
thereof.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act
of 1939, as amended, unless otherwise specifically provided.
(b) Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used but not
otherwise defined herein have the respective meanings set forth in, or
incorporated by reference into, the Sale and Servicing Agreement for
all purposes of this Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes. "Indenture security
holder" shall mean a Noteholder. "Indenture to be qualified" shall mean
this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the
Indenture Trustee.
"Obligor" on the indenture securities shall mean the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without
limitation;
(v) words in the singular include the plural and
words in the plural include the singular; and
(vi) any agreement, instrument or statute defined
or referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as
from time to time amended, modified or supplemented and includes (in
the case of agreements or instruments) references to all attachments
thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, together
with the Indenture Trustee's Certificates of Authentication, shall be in
substantially the form set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0,
Xxxxxxx X-0 and Exhibit B, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution thereof. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibits X-0, X-0, X-0, X-0 and B
hereto are part of the terms of this Indenture and are incorporated herein
by reference.
SECTION 2.2 Execution, Authentication and Delivery. (a) The Notes
shall be executed on behalf of the Issuer by any of its Responsible
Officers. The signature of any such Responsible Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Responsible Officers of the Issuer shall
bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $140,000,000, Class A-2 Notes for original issue in an
aggregate principal amount of $165,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $350,000,000, Class A-4 Notes for
original issue in an aggregate principal amount of $193,022,000, and Class
B Notes for original issue in an aggregate principal amount of $64,095,000.
The aggregate principal amounts of Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class B Notes outstanding at any time may
not exceed those respective amounts except as provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication.
The Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears
on such Note a certificate of authentication substantially in the form
provided for herein executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes. (a) Pending the preparation of
Definitive Notes pursuant to Section 2.13, the Issuer may execute, and upon
receipt of an Issuer Order the Indenture Trustee shall authenticate and
deliver, temporary Notes that are printed, lithographed, typewritten,
mimeographed or otherwise produced, of the tenor of the Definitive Notes in
lieu of which they are issued and with such variations not inconsistent
with the terms of this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
(b) If temporary Notes are issued pursuant to Section 2.3(a), the
Issuer shall cause Definitive Notes to be prepared without unreasonable
delay. After the preparation of Definitive Notes, the temporary Notes shall
be exchangeable for Definitive Notes upon surrender of the temporary Notes
at the office or agency of the Issuer to be maintained as provided in
Section 3.2, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver in exchange therefor, a
like principal amount of Definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled
to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Trust Estate. The
Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note (and each Note Owner by its acceptance of an interest
in the applicable Book-Entry Note), agree to treat the Notes for federal,
state and local income and franchise tax purposes as indebtedness of the
Issuer.
SECTION 2.5 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee initially shall be the "Note
Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Note Registrar, the Issuer
shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
(b) If a Person other than the Indenture Trustee is
appointed by the Issuer as Note Registrar, (i) the Issuer shall give the
Indenture Trustee prompt written notice of the appointment of such Note
Registrar and of the location and any change in the location, of the Note
Register, (ii) the Indenture Trustee shall have the right to inspect the
Note Register at all reasonable times and to obtain copies thereof and
(iii) the Indenture Trustee shall have the right to rely upon a certificate
executed on behalf of the Note Registrar by an Executive Officer thereof as
to the names and addresses of the Holders of the Notes and the principal
amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided in
Section 3.2, if the requirements of Section 8-401 of the Relevant UCC are
met, the Issuer shall execute, and the Indenture Trustee shall authenticate
and the Noteholder shall obtain from the Indenture Trustee, in the name of
the designated transferee or transferees, one or more new Notes of the same
Class in any authorized denomination, of a like aggregate principal amount.
The Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-401 of the Relevant
UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for
other Notes of the same Class in any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate, and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making such
exchange is entitled to receive. The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-401 of the Relevant UCC are met.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving any
transfer.
(h) The preceding provisions of this Section 2.5 notwithstanding,
the Issuer shall not be required to make and the Note Registrar need not
register transfers or exchanges of Notes selected for redemption or of any Note
for a period of fifteen (15) days preceding the due date for any payment with
respect to such Note.
(i) Each Person to whom a Note is transferred will be required to
represent, in the case of a Definitive Note, or deemed to represent, in the case
of a Book-Entry Note, that (x) such Person is not an employee benefit plan, as
described in section 3(3) of ERISA, or a plan, as defined in section 4975(E)(1)
of the Code, that is subject to Title I of ERISA or to section 4975 of the Code,
a government plan subject to any state or local law similar to Title I of ERISA
or section 4975 of the Code, or a Person investing on behalf of or with "plan
assets" of such a plan, or (y) the Person's acquisition, holding and disposition
of the Note are and will be eligible for relief under a prohibited transaction
exemption.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes. (a) If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a protected purchaser,
and provided that the requirements of Section 8-405 of the Relevant UCC are met,
the Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Class; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven (7) days of the Indenture Trustee's
receipt of evidence to its satisfaction of such destruction, loss or theft shall
be due and payable, or shall have been called for redemption, instead of issuing
a replacement Note of the same Class, the Issuer may pay such destroyed, lost or
stolen Note when so due or payable or upon the Redemption Date without surrender
thereof. The Indenture Trustee may rely upon the Administrator with respect to
the determination of whether the requirements of Section 8-405 of the Relevant
UCC are met. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered or
any assignee of such Person, except a protected purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under this Section
2.6, the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions
from the Servicer pursuant to Section 4.6(c) of the Sale and Servicing
Agreement, the Indenture Trustee shall withdraw the Total Available Funds on
deposit in the Collection Account for the related Collection Period and make the
following payments and deposits for such Payment Date in the following order of
priority:
(i) to the Servicer, the Total Servicing Fee;
(ii) to the Swap Counterparty, the amount of any Net Swap
Payments then due under the Interest Rate Swap Agreements (exclusive of any
Swap Termination Payments);
(iii) with the same priority and ratably, in accordance with the
outstanding balance of the Class A Notes and the amount of any Swap
Termination Payments due and payable by the Issuer to the Swap
Counterparties,
(A) to the Note Payment Account, the Accrued Note Interest for
the Class A Notes, and
(B) to the Swap Counterparties, any Swap Termination Payments;
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 Principal Distribution
Amount;
(vi) to the Reserve Account, the amount, if any,
necessary to reinstate the balance in the Reserve Account up to the
Specified Reserve Balance; and
(vii) to the Certificate Distribution Account, any
remaining portion of Total Available Funds.
Notwithstanding the foregoing, following the occurrence and
during the continuation of an Event of Default which has resulted in an
acceleration of the Notes, on each Payment Date the Total Available Funds shall
be deposited in the Note Payment Account and applied in accordance with Section
2.8(f).
(b) The principal of each Note shall be payable in installments
on each Payment Date in an aggregate amount (unless the Notes have been
accelerated in accordance with Section 5.2 following the occurrence of an Event
of Default) for all Classes of Notes equal to the Principal Distribution Amount
with respect to such Payment Date. On each Payment Date, unless the Notes have
been accelerated in accordance with Section 5.2 following the occurrence of an
Event of Default, the Issuer shall cause to be paid all amounts on deposit in
the Note Payment Account with respect to the related Collection Period in the
following order of priority:
(i) to the Class A Noteholders, Accrued Note Interest
(and, if amounts on deposit in the Note Payment Account are insufficient
for such purpose, payments shall be made to the to the Class A Noteholders
pro rata in proportion to the Accrued Note Interest for each Class of
Notes);
(ii) to the Class B Noteholders, Accrued Note
Interest;
(iii) to the Class A-1 Noteholders, 100% of the
Principal Distribution Amount in reduction of principal until the principal
amount of the Class A-1 Notes has been paid in full;
(iv) following payment in full of the Class A-1
Notes, to the Class A-2 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the Class
A-2 Notes has been paid in full;
(v) following payment in full of the Class A-2 Notes,
to the Class A-3 Noteholders, 100% of the Principal Distribution Amount in
reduction of principal until the principal amount of the Class A-3 Notes
has been paid in full;
(vi) following payment in full of the Class A-3
Notes, to the Class A-4 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the Class
A-4 Notes has been paid in full; and
(vii) following payment in full of the Class A-4
Notes, to the Class B Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the Class B
Notes has been paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent
not previously paid, will be due on the Class A-1 Final Payment Date, the
principal amount of the Class A-2 Notes, to the extent not previously paid, will
be due on the Class A-2 Final Payment Date, the principal amount of the Class
A-3 Notes, to the extent not previously paid, will be due on the Class A-3 Final
Payment Date, the principal amount of the Class A-4 Notes, to the extent not
previously paid, will be due on the Class A-4 Final Payment Date and the
principal amount of the Class B Notes, to the extent not previously paid, will
be due on the Class B Final Payment Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall accrue interest at the
Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate and
the Class B Rate, respectively, and such interest shall be due and payable on
each Payment Date. Interest on the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes shall be calculated on the basis of the actual days elapsed and
a 360-day year. Interest on the Class A-4 Notes and the Class B Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months. Subject to
Section 3.1, any installment of interest or principal, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date by check mailed
first-class postage prepaid to such Person's address as it appears on the Note
Register on such Record Date; provided that, unless Definitive Notes have been
issued pursuant to Section 2.13, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment shall be made by wire transfer in immediately
available funds to the account designated by such nominee, and except for the
final installment of principal payable with respect to such Note on a Payment
Date or on the related Final Payment Date (and except for the Redemption Price
for any Note called for redemption), which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3. The Issuer shall pay all Accrued Note Interest,
including Interest Carryover Shortfalls, to the Persons who are Noteholders on
the Record Date for a particular Payment Date even if a portion of such Accrued
Note Interest relates to a different Payment Date.
(e) All principal payments on a Class of Notes shall be made pro
rata to the Noteholders entitled thereto. The Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which the Issuer expects that the final
installment of principal of and interest on such Note shall be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment shall be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemption of Notes shall be mailed to Noteholders as
provided in Section 10.2.
(f) Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Holders of Notes representing not less than a majority
of the principal amount of the Notes Outstanding have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. On each
Payment Date following acceleration of the Notes, all amounts on deposit in the
Note Payment Account shall be paid in the following order of priority.
(i) first, to the Indenture Trustee for amounts due
under Section 6.7;
(ii) second, to the Owner Trustee for amounts due
under Sections 8.1 and 8.2 of the Trust Agreement
(iii) third, to the Servicer for amounts due and
unpaid in respect of Total Servicing Fees;
(iv) fourth, to the Swap Counterparties, the amount
of the Net Swap Payments then due under the Interest Rate Swap Agreements
(exclusive of any Swap Termination Payments);
(v) fifth, 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 Counterparties, (1) to Noteholders of the Class A Notes, the
Accrued Note Interest ratably in proportion to Accrued Note Interest for
each Class of the Class A Notes, without preference or priority of any
kind, according to the amounts due and payable on the Class A Notes for
interest, and (2) to the Swap Counterparties, any Swap Termination
Payments, provided that if any amounts are remaining after such allocations
are made, such amounts will be allocated to the Swap Counterparties pro
rata based on the amount of their respective Swap Termination Payments;
(vi) sixth, to the Swap Counterparties for any
remaining Swap Termination Payments;
(vii) seventh, 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;
(viii)eighth, 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;
(ix) ninth, to the Class B Noteholders, Accrued Note
Interest;
(x) tenth, to the Class B Noteholders, the
outstanding principal amount of the Class B Notes as of such Payment Date
(prior to giving effect to any payment of principal on such date) in
reduction of principal until the principal amount of the Class B Notes has
been paid in full; and
(xi) eleventh, to the Certificateholders.
SECTION 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section 2.9, except as expressly
permitted by this Indenture. All cancelled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it, provided, that such Issuer Order
is timely and the Notes have not been previously disposed of by the Indenture
Trustee.
SECTION 2.10 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of (i) an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent, if any, provided for in this Indenture
relating to the release of the property from the lien of this Indenture have
been complied with, provided that counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action and (ii) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates. If the Commission shall issue an exemptive order under
TIA Section 304(d) modifying the Owner Trustee's obligations under TIA Sections
314(c) and 314(d)(1), the Indenture Trustee shall release property from the lien
of this Indenture in accordance with the conditions and procedures set forth in
such exemptive order.
SECTION 2.11 Book-Entry Notes. The Notes, upon original issuance, shall
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to the Indenture Trustee as custodian for The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Issuer. The
Book-Entry Notes shall be registered initially on the Note Register in the name
of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner
thereof shall receive a definitive Note representing such Note Owner's interest
in such Note, except as provided in Section 2.13. Unless and until definitive,
fully registered Notes (the "Definitive Notes") have been issued to such Note
Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in
full force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Notes
and the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this
Section 2.11 conflict with any other provisions of this Indenture, the
provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Note Depository
Agreement; unless and until Definitive Notes are issued pursuant to Section
2.13, the initial Clearing Agency shall make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments of principal
of and interest on the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of Holders of
Notes evidencing a specified percentage of the principal amount of the
Notes or any Class of Notes Outstanding, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage
of the beneficial interest in the Notes or such Class of Notes and has
delivered such instructions to the Indenture Trustee.
SECTION 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.13 Definitive Notes. If (i) the Issuer, the Administrator or
the Servicer advises the Indenture Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Notes and the Indenture Trustee or the Administrator
is unable to locate a qualified successor, (ii) the Administrator, at its
option, advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default or an Event of Servicing Termination, Note Owners of the
Book-Entry Notes representing beneficial interests aggregating not less than 51%
of the principal amount of such Notes advise the Indenture Trustee and the
Clearing Agency in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of such Note Owners, then
the Clearing Agency shall notify all Note Owners and the Indenture Trustee of
the occurrence of such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Any portion of a Book-Entry Note transferred or exchanged
pursuant to this Section 2.13 shall be executed, authenticated and delivered
only in the minimum denominations and integral multiples set forth in Section
2.2(d). Upon the issuance of Definitive Notes, the Indenture Trustee shall
recognize the Holders of the Definitive Notes as Noteholders.
SECTION 2.14 Authenticating Agents. The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in connection
with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5 and 2.6, as
fully to all intents and purposes as though each such Authenticating Agent had
been expressly authorized by those Sections to authenticate such Notes. For all
purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section 2.14 shall be deemed to be the authentication of
Notes "by the Indenture Trustee."
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Owner Trustee. The
Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating Agent
and shall give written notice of any such appointment to the Owner Trustee.
The Administrator agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services. The provisions of Sections 2.9
and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant. The Issuer shall duly and punctually pay
the principal of and interest on, if any, the Notes in accordance with the terms
of the Notes and this Indenture. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If, at any time, the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. (a) As provided in
Section 8.2, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account, the
Reserve Account, the Yield Supplement Account and the Note Payment Account shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account, the Reserve
Account, the Yield Supplement Account and the Note Payment Account for payments
of Notes shall be paid over to the Issuer, except as provided in this Section
3.3.
(b) On or before each Payment Date and Redemption Date, the
Issuer shall deposit or cause to be deposited in the Note Payment Account
an aggregate sum sufficient to pay the amounts then becoming due under the
Notes and under the Interest Rate Swap Agreements, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture
Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section 3.3, that such Paying
Agent shall:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such Persons
as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect to
the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith pay
to the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code and any
state or local tax law with respect to the withholding from any payments
made by it on any Notes of any applicable withholding taxes imposed thereon
and with respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
(d) Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Note and remaining
unclaimed for two (2) years after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof (but only to
the extent of the amounts so paid to the Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall
at the expense and direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at
the expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest in monies
due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each such Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and shall take such other action necessary or advisable
to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate
and the rights of the Indenture Trustee, the Swap Counterparties and the
Noteholders in such Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be executed pursuant to this
Section 3.5.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit C.
(b) On or before March 31, in each calendar year, beginning in
2002, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and with respect to the execution and filing of
any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that shall,
in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 31 in the following
calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer shall not take any action and shall use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate,
including, but not limited to, filing or causing to be filed all financing
statements and continuation statements required to be filed under the
Relevant UCC by the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods provided for
herein and therein. Except as otherwise expressly provided therein, the
Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the Indenture
Trustee or the Holders of at least a majority of the principal amount of
the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an
Event of Servicing Termination under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the action, if any, the Issuer is
taking in respect of such default. If an Event of Servicing Termination
shall arise from the failure of the Servicer to perform any of its duties
or obligations under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall (subject
to the rights of the Indenture Trustee to direct such appointment pursuant
to Section 8.2 of the Sale and Servicing Agreement) appoint a successor
servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been
appointed or has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Indenture Trustee, without further action,
shall automatically be appointed the Successor Servicer. The Indenture
Trustee may resign as the Servicer by giving written notice of such
resignation to the Issuer and in such event shall be released from such
duties and obligations, such release not to be effective until the date a
new servicer enters into a servicing agreement with the Issuer as provided
below. Upon delivery of any such notice to the Issuer, the Issuer shall
obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer (other than the Indenture
Trustee) shall (i) be an established financial institution having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of automotive installment sale contracts and (ii) enter into a
servicing agreement with the Issuer having substantially the same
provisions as the provisions of the Sale and Servicing Agreement applicable
to the Servicer. If, within thirty (30) days after the delivery of the
notice referred to above, the Issuer shall not have obtained such a new
servicer, the Indenture Trustee may appoint, or may petition a court of
competent jurisdiction to appoint, a Successor Servicer. In connection with
any such appointment, the Indenture Trustee may make such arrangements for
the compensation of such successor as it and such successor shall agree,
subject to the limitations set forth below and in the Sale and Servicing
Agreement, and in accordance with Section 8.2 of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with such successor for
the servicing of the Receivables (such agreement to be in form and
substance satisfactory to the Indenture Trustee). If the Indenture Trustee
shall succeed to the Servicer's duties as servicer of the Receivables as
provided herein, it shall do so in its individual capacity and not in its
capacity as Indenture Trustee and, accordingly, the provisions of Article
VI hereof shall be inapplicable to the Indenture Trustee in its duties as
the successor to the Servicer and the servicing of the Receivables. If the
Indenture Trustee shall become successor to the Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; provided that the Indenture Trustee, in
its capacity as the Servicer, shall be fully liable for the actions and
omissions of such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed
by the Issuer, the Issuer shall notify the Indenture Trustee of such
appointment, specifying in such notice the name and address of such
Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer hereby agrees that it shall not,
without the prior written consent of the Indenture Trustee or the Holders
of at least a majority in principal amount of the Notes Outstanding, amend,
modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral (except to the extent otherwise provided in the
Sale and Servicing Agreement or the Basic Documents).
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture,
the Trust Agreement, the Purchase Agreement or the Sale and Servicing
Agreement, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the Trust
Estate, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or applicable
state law) or assert any claim against any present or former Noteholder by
reason of the payment of the taxes levied or assessed upon the Issuer;
(iii) dissolve or liquidate in whole or in part; or
(iv) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted hereby,
(B) permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be created on
or extend to or otherwise arise upon or burden the assets of the Issuer or
any part thereof or any interest therein or the proceeds thereof or (C)
permit the lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other lien)
security interest in the Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver
to the Indenture Trustee, on or before March 31 of each year (commencing with
the year 2002), an Officer's Certificate stating, as to the Responsible Officer
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during
such year (or such shorter period, with respect to the first such Officer's
Certificate) and of its performance under this Indenture has been made
under such Responsible Officer's supervision; and
(ii) to the best of such Responsible Officer's
knowledge, based on such review, the Issuer has complied with all
conditions and covenants under this Indenture throughout such year (or such
shorter period, with respect to the first such Officer's Certificate), or,
if there has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Responsible Officer
and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms. (a)
The Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and covenant
of this Indenture on the part of the Issuer to be performed or observed,
all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
(b) Other than as specifically contemplated by the Basic
Documents, the Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or transfer
of which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State, (B) expressly assumes, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and of all obligations under the
Interest Rate Swap Agreements and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly agrees by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
Holders of the Notes and the Swap Counterparties, (D) unless otherwise
provided in such supplemental indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes, and (E)
expressly agrees by means of such supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required by
the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), the Issuer shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables in
the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture and the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Owner Trustee, the Swap Counterparties and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose under,
the Sale and Servicing Agreement or the Trust Agreement and (y) payments to the
Indenture Trustee pursuant to Section 1(a)(ii) of the Administration Agreement.
The Issuer shall not, directly or indirectly, make payments to or distributions
from the Collection Account except in accordance with this Indenture and the
other Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and of each default on the part of any party to the Sale and
Servicing Agreement, the Purchase Agreement, or the Interest Rate Swap
Agreements with respect to any of the provisions thereof.
SECTION 3.20 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection therewith.
SECTION 3.21 Calculation Agent. (a) The Issuer agrees that for so long
as any of the Class A-2 Notes or Class A-3 Notes are Outstanding there shall at
all times be an agent appointed to calculate LIBOR in respect of each Interest
Period (the "Calculation Agent"). The Issuer hereby appoints Xxxxxxx Xxxxx
Capital Services, Inc. as Calculation Agent for purposes of determining LIBOR
for each Interest Period and Xxxxxxx Xxxxx 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-2 Notes and
Class A-3 Notes for the related Interest 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. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13 hereof, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture Trustee under
Section 6.7 and the obligations of the Indenture Trustee under Section 4.3), and
(vi) the rights of Noteholders and Swap Counterparties as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when either:
(A) all Notes of all Classes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.6
and (ii) Notes for whose payment money has theretofore been irrevocably
deposited in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee
for cancellation; or
(B) each of the following:
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable and the
Issuer has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States
of America (which will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee
for cancellation when due to the applicable Final Payment Date
or Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.1), as the case may be;
(3) the Issuer has paid or caused to be paid all other sums
payable by the Issuer hereunder and under the other Basic
Documents;
(4) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required
by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.1(a) and,
subject to Section 11.2, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with; and
(5) the Issuer has delivered to the Indenture Trustee an
Opinion of Counsel to the effect that the satisfaction and
discharge of the Notes pursuant to this Section 4.1 will not
cause any Noteholder to be treated as having sold or exchanged
any of its Notes for purposes of Section 1001 of the Code.
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection
(b) below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Notes Outstanding, and the provisions of this Indenture,
as it relates to such Notes, shall no longer be in effect (and the Indenture
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except as to:
(i) the rights of Holders of Notes to receive, from
the trust funds described in subsection (b)(i) hereof, payment of the
principal of and interest on the Notes Outstanding at maturity of such
principal or interest;
(ii) the obligations of the Issuer with respect to
the Notes under Sections 2.5, 2.6, 3.2 and 3.3 hereof;
(iii) the obligations of the Issuer to the Indenture
Trustee under Section 6.7 hereof; and
(iv) the rights, powers, trusts and immunities of the
Indenture Trustee hereunder and the duties of the Indenture Trustee
hereunder.
(b) The satisfaction, discharge and defeasance of the Notes
pursuant to subsection (a) of this Section 4.2 is subject to the satisfaction of
all of the following conditions:
(i) the Issuer has deposited or caused to be
deposited irrevocably (except as provided in Section 4.4 hereof) with the
Indenture Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Notes,
which, through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day prior to
the due date of any payment referred to below, money in an amount
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Indenture Trustee, to pay and discharge the entire
indebtedness on the Notes Outstanding, for principal thereof and interest
thereon to the date of such deposit (in the case of Notes that have become
due and payable) or to the maturity of such principal and interest, as the
case may be, and to pay any amounts then due and payable to the Swap
Counterparties;
(ii) such deposit will not result in a breach or
violation of, or constitute an event of default under, any other agreement
or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or on the
ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that the satisfaction,
discharge and defeasance of the Notes pursuant to this Section 4.2 will not
cause any Noteholder to be treated as having sold or exchanged any of its
Notes for purposes of Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by this
Section 4.2 have been complied with.
SECTION 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest, and for
payment to the Swap Counterparties of all sums, if any, due or to become due to
the Swap Counterparties under and in accordance with this Indenture and the
Interest Rate Swap Agreements, but such monies need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or required by law.
SECTION 4.4 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such monies.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any
Note when the same becomes due and payable, and such default shall continue
for a period of five (5) days or more; or
(ii) default in the payment of the principal of or
any installment of the principal of any Note when the same becomes due and
payable, including with respect to each Class of Notes, the Final Payment
Date for such Class; or
(iii) default in the observance or performance of any
material covenant or agreement of the Issuer made in this Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section 5.1 specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as of the
time when the same shall have been made, and such default shall continue or
not be cured, or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been eliminated
or otherwise cured, for a period of sixty (60) days or in the case of a
materially incorrect representation and warranty thirty (30) days, after
there shall have been given, by registered or certified mail, to the Issuer
by the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Holders of not less than 25% of the principal amount of the Notes
Outstanding, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such law, or
the consent by the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Trust Estate, or
the making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of any action by the Issuer in furtherance
of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any Default which with the giving of notice and the lapse of time would
become an Event of Default under clause (iii), its status and what action the
Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. (a) If
an Event of Default should occur and be continuing, then and in every such case
the Indenture Trustee or the Holders of Notes representing not less than a
majority of the principal amount of the Notes Outstanding, voting as a group,
may declare all the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the unpaid principal amount of such Notes,
together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable. If an Event of Default specified in Section
5.1(iv) or (v) occurs, all unpaid principal, together with all accrued and
unpaid interest thereon, of all the Notes, and all other amounts payable
hereunder, shall automatically become due and payable without any declaration or
other act on the part of the Indenture Trustee or any Holder of the Notes. In
the event of such declaration or automatic acceleration, the Indenture Trustee
shall give prompt written notice to the Swap Counterparties.
(b) At any time after a declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the amount due has
been obtained by the Indenture Trustee as hereinafter provided in this Article
V, the Holders of Notes representing a majority of the principal amount of the
Notes Outstanding, voting as a group, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder or upon such
Notes or under the Interest Rate Swap Agreements if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel and other
amounts due and owing to the Indenture Trustee pursuant to Section 6.7; and
(ii) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) there is a default in
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five (5) days, or (ii) there is a
default in the payment of the principal of or any installment of the principal
of any Note when the same becomes due and payable, the Issuer shall, upon demand
of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the
Holders of the Notes, the whole amount then due and payable on the Notes for
principal and interest, with interest upon the overdue principal at the
applicable Note Interest Rate and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest at
the applicable Note Interest Rate and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel and other amounts due and owing to the
Indenture Trustee pursuant to Section 6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of
an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon
the Notes and collect in the manner provided by law out of the property of
the Issuer or other obligor upon the Notes, wherever situated, the monies
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders and the Swap Counterparties, by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right
vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency
or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor
upon the Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of
any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.3,
shall be entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any claim
for reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
all other amounts due and owing to the Indenture Trustee pursuant to
Section 6.7), of the Swap Counterparties and of the Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes and the Swap
Counterparties in any election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to pay all amounts
received with respect to the claims of the Noteholders, the Swap
Counterparties and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee, the Swap Counterparties or the Holders of Notes
allowed in any judicial proceedings relative to the Issuer, its creditors
and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other amounts due and
owing to the Indenture Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder or of any Swap Counterparty any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the Interest Rate
Swap Agreements or the rights of any Noteholder or Swap Counterparty to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder or Swap Counterparty in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes and the Swap
Counterparties.
(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may, but shall not be
obligated to, do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then payable
on the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under
the Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Noteholders and Swap Counterparties; and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales called
and conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless (A) the Holders of 100% of
the principal amount of the Notes Outstanding, voting as a group, consent
thereto, (B) the proceeds of such sale or liquidation are sufficient to pay in
full the principal of and the accrued interest on the outstanding Notes and all
payments due and payable (including any Swap Termination Payments) pursuant to
the Interest Rate Swap Agreements, or (C) the Indenture Trustee determines that
the Trust Estate will not continue to provide sufficient funds for the payment
of principal of and interest on the Notes as they would have become due if the
Notes had not been declared due and payable, and the Indenture Trustee obtains
the consent of Holders of 66-2/3% of the principal amount of the Notes
Outstanding, voting as a group. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C) above, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the order
of priority set forth in Section 2.8(f).
(c) The Indenture Trustee may fix a record date and payment date
for any payment to Noteholders pursuant to this Section 5.4. At least fifteen
(15) days before such record date, the Issuer shall mail to each Noteholder and
the Indenture Trustee a notice that states the record date, the payment date and
the amount to be paid.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default, and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate and apply proceeds as if there had been no declaration of
acceleration; provided, however, that Total Available Funds shall be applied in
accordance with such declaration of acceleration in the manner specified in
Section 4.6(c) of the Sale and Servicing Agreement. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes and any amounts owing
to the Swap Counterparties, and the Indenture Trustee shall take such desire
into account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the principal amount of
the Notes Outstanding have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt
of such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of a
majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the principal amount of the Notes
Outstanding, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on, if any, such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
principal amount of the Notes Outstanding shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction to
the Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders
of Notes representing not less than 100% of the principal amount of the Notes
Outstanding;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the principal amount of the Notes Outstanding to
sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.1, the Indenture Trustee need not take any action that it reasonably
believes might involve it in costs, expenses and liabilities for which it will
not be adequately indemnified or might materially adversely affect the rights of
any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding, voting as a group, may waive any past Default or Event
of Default and its consequences except a Default or Event of Default (a) in the
payment of principal of or interest on any of the Notes or (b) in respect of a
covenant or provision hereof that cannot be amended, supplemented or modified
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
principal amount of the Notes Outstanding or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement or by
the Seller of each of its obligations under or in connection with the Purchase
Agreement, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Sale and
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone, confirmed in writing promptly thereafter) of the Holders of
66-2/3% of the principal amount of the Notes Outstanding, voting as a group,
shall, exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller or the Servicer under or in connection with the Sale
and Servicing Agreement, or against the Seller under or in connection with the
Purchase Agreement, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer, as the case may
be, of each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension, or waiver under the
Sale and Servicing Agreement or the Purchase Agreement, as the case may be, and
any right of the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to do
so and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by MMCA of each of its obligations to the Seller under or in
connection with the Purchase Agreement in accordance with the terms thereof, and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Purchase Agreement to
the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by MMCA of each of its obligations under the Purchase
Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66 2/3% of the principal amount of the Notes Outstanding, voting as a
group, shall, exercise all rights, remedies, powers, privileges and claims of
the Seller against MMCA under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by MMCA of each of its obligations to the Seller thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Purchase Agreement, and any rights of the Seller to take such action
shall be suspended.
(e) Promptly following a request from the Indenture Trustee to do
so, and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Swap Counterparties in accordance with the Interest Rate
Swap Agreements and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Interest Rate Swap Agreements to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default thereunder
and the institution of legal or administrative actions or proceedings to compel
or secure performance by the Swap Counterparties of its obligations under the
Interest Rate Swap Agreements.
(f) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone, confirmed in writing promptly thereafter) of the Noteholders of
Notes evidencing not less than 662/3% of the principal amount of the Controlling
Note Class shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Swap Counterparties including the right or power to
take any action to compel or secure performance or observance by the Swap
Counterparties of their obligations to the Issuer under the Interest Rate Swap
Agreements and to give any consent, request, notice, direction, approval,
extension, or waiver under the Interest Rate Swap Agreements and any right of
the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of Default has
occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and, if required by the terms
of this Indenture, conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer unless it
is proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to paragraphs (a), (b), (c), (e) and (g) of
this Section 6.1.
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
(i) The Indenture Trustee shall not be charged with knowledge of
any Event of Default unless either (1) a Responsible Officer shall have actual
knowledge of such Event of Default or (2) written notice of such Event of
Default shall have been given to the Indenture Trustee in accordance with the
provisions of this Indenture.
SECTION 6.2 Rights of Indenture Trustee. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not investigate any
fact or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel unless it is
proved that the Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by
the Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney.
SECTION 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent hereunder may do the same
with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee (i)
shall not be responsible for, and makes no representation, as to the validity or
adequacy of this Indenture or the Notes and (ii) shall not be accountable for
the Issuer's use of the proceeds from the Notes, or responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of such Default within
ninety (90) days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. Within a
reasonable period of time after the end of each calendar year, but not later
than the latest date permitted by law, in each case as determined by the
Servicer, the Indenture Trustee shall deliver to each Person who at any time
during the preceding calendar year was a Noteholder a statement prepared by the
Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement containing
the information which is required to be expressed in the Payment Date statements
as a dollar amount per $1,000 of original denomination of the Notes or Class of
Notes, as applicable, aggregated for such calendar year, for the purposes of
such Noteholder's preparation of Federal income tax returns.
SECTION 6.7 Compensation and Indemnity. (a) The Issuer shall, or shall
cause the Administrator to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall, or shall cause the Administrator to, reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall, or shall cause the Administrator to,
indemnify the Indenture Trustee against any and all loss, liability or expense
(including attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Administrator promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and
the Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to, defend
any such claim, and the Indenture Trustee may have separate counsel and the
Issuer shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Administrator need reimburse any expense or
indemnity against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section 6.7 shall survive the resignation or removal of the Indenture
Trustee and the discharge of this Indenture. When the Indenture Trustee incurs
expenses after the occurrence of a Default specified in Section 5.1(iv) or (v)
with respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. (a) No resignation or
removal of the Indenture Trustee, and no appointment of a successor Indenture
Trustee, shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Holders of a majority in
principal amount of the Notes Outstanding, voting as a group, may remove the
Indenture Trustee without cause by so notifying the Indenture Trustee and the
Issuer and may appoint a successor Indenture Trustee. The Issuer shall remove
the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer, and shall concurrently deliver a copy of such acceptance to each
Swap Counterparty. Thereupon, the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders. The retiring Indenture Trustee
shall promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
(c) If a successor Indenture Trustee does not take office within
sixty (60) days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the Holders of a majority in
principal amount of the Notes Outstanding may petition any court of
competent jurisdiction to appoint a successor Indenture Trustee. If the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction to remove the Indenture
Trustee and to appoint a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's and the Administrator's
obligations under Section 6.7 shall continue for the benefit of the
retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. (a) If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Indenture
Trustee; provided, that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall
provide the Rating Agencies with prior written notice of any such transaction.
(b) If at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Notes so authenticated, and if at that time any
of the Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture
Trustee. In all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver an instrument to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders and the Swap Counterparties, such title to the Trust Estate, or any
part hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co- trustee shall not be authorized to act separately
without the Indenture Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time remove or
accept the resignation of any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee or its parent shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and shall have a long-term debt rating of investment grade by each of the Rating
Agencies or shall otherwise be acceptable to each of the Rating Agencies. The
Indenture Trustee shall comply with TIA Section 310(b).
(b) Within ninety (90) days after ascertaining the occurrence of
an Event of Default which shall not have been cured or waived, unless authorized
by the Commission, the Indenture Trustee shall resign with respect to the Class
A Notes and/or the Class B Notes in accordance with Section 6.8 of this
Indenture, and the Issuer shall appoint a successor Indenture Trustee for one or
both of such Classes, as applicable, so that there will be separate Indenture
Trustees for the Class A Notes and the Class B Notes. In the event the Indenture
Trustee fails to comply with the terms of the preceding sentence, the Indenture
Trustee shall comply with clauses (ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment pursuant to this Section 6.11
of a successor Indenture Trustee with respect to any Class of Notes, the Issuer,
the retiring Indenture Trustee and the successor Indenture Trustee with respect
to such Class of Notes shall execute and deliver an indenture supplemental
hereto wherein each successor Indenture Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, the successor Indenture Trustee all
the rights, powers, trusts and duties of the retiring Indenture Trustee with
respect to the Notes of the Class to which the appointment of such successor
Indenture Trustee relates, (ii) if the retiring Indenture Trustee is not
retiring with respect to all Classes of Notes, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Indenture Trustee with respect to the Notes of
each Class as to which the retiring Indenture Trustee is not retiring shall
continue to be vested in the Indenture Trustee and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Indenture Trustees co-trustees of the same trust
and that each such Indenture Trustee shall be a trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses. The
Indenture Trustee shall use its best efforts to maintain the effectiveness of
all licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in
connection with this Indenture and the transactions contemplated hereby until
the lien and security interest of this Indenture shall no longer be in effect in
accordance with the terms hereof.
SECTION 6.14 Interest Rate Swap Provisions. (a) The Issuer has entered
into the Interest Rate Swap Agreements, each in a form satisfactory to the
Rating Agencies, to hedge the floating rate interest expense on the Class A-2
Notes and Class A-3 Notes. The Issuer may, from time to time, enter into one or
more replacement Interest Rate Swap Agreements with one or more replacement Swap
Counterparties in the event that any Interest Rate Swap Agreement is terminated
prior to its scheduled expiration pursuant to an Event of Default or Termination
Event (each such term as defined in the Interest Rate Swap Agreements). The
notional amounts of the Interest Rate Swaps will be determined as follows:
(i) The notional amount of the Class A-2 Interest Rate Swap hedging the
interest expense on the Class A-2 Notes will be initially equal to the
principal amount of the Class A-2 Notes on the Closing Date and will be
reduced by the amount of any principal payments on the Class A-2 Notes.
(ii) The notional amount of the Class A-3 Interest Rate Swap hedging
the interest expense on the Class A-3 Notes will be initially equal to the
principal amount of the Class A-3 Notes on the Closing Date and will be
reduced by the amount of any principal payments on the Class A-3 Notes.
(b) On each Payment Date, Net Swap Payments (other than Swap
Termination Payments) relating to the Interest Rate Swaps will rank senior
to interest payments on the Class A Notes, and Swap Termination Payments
will rank pari passu with interest payments on the Class A Notes, all as
set forth in Section 8.2 hereof and Section 4.6 of the Sale and Servicing
Agreement.
(c) The Indenture Trustee will be responsible for remitting Net
Swap Payments and any Swap Termination Payments payable to each Swap
Counterparty and for collecting the Net Swap Receipts and any Swap
Termination Payments payable to the Issuer, as applicable, on each Payment
Date.
(d) In the event that a Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of
the applicable Interest Rate Swap Agreement, the Indenture Trustee, upon
written request of the Administrator, shall establish individual collateral
accounts and will hold any securities deposited therein in trust and will
invest any cash amounts in accordance with the provisions of such Interest
Rate Swap Agreement.
(e) The Administrator shall calculate and provide written
notification to the related Swap Counterparty and to the Indenture Trustee
of the notional amount of each Interest Rate Swap as of each Payment Date
on or before the twelfth day of the month of the related Payment Date. The
Administrator shall also obtain the calculation of LIBOR from the
Calculation Agent under this Agreement and shall calculate the amount, for
each Payment Date, of all Net Swap Payments, Net Swap Receipts, and Swap
Termination Payments payable on each Payment Date and shall provide written
notification of such amounts to the related Swap Counterparties and to the
Indenture Trustee prior to such Payment Date. At least five days before the
effective date of any proposed amendment or supplement to an Interest Rate
Swap Agreement, the Administrator shall provide the Rating Agencies with a
copy of such amendment or supplement. Unless the amendment or supplement
clarifies any term or provision, corrects any inconsistency, cures any
ambiguity, or corrects any typographical error in such Interest Rate Swap
Agreement, an amendment or supplement to such Interest Rate Swap Agreement
will be effective only after satisfaction of the Rating Agency Condition.
(f) Promptly following the early termination of any Interest Rate
Swap Agreement due to an Event of Default or Termination Event (as each
such term is defined in such Interest Rate Swap Agreement), the Issuer will
use reasonable efforts to enter into a replacement interest rate swap
agreement on terms similar to those of such Interest Rate Swap Agreement
with an eligible swap counterparty unless the Indenture Trustee sells the
Indenture Trust Estate pursuant to Section 5.4(a)(iv). The Issuer shall
take action as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparties of their obligations
under the Interest Rate Swap Agreements, as provided in Section 5.16(e) and
5.16(f).
(g) Each Interest Rate Swap Agreement shall provide that a
termination event will occur thereunder if (a) the long-term rating of the
Swap Counterparty is downgraded below a rating of "A2" by Moody's or below
"A" by Fitch, or is suspended or withdrawn by either Rating Agency, (b) the
short-term rating of the Swap Counterparty is downgraded below a rating of
"A-1" by S&P or below "F-1" by Fitch, or is suspended or withdrawn by
either Rating Agency or (c) notice is given to the Indenture Trustee or
Administrator by any Rating Agency that the credit support, if any, with
respect to the Swap Counterparty is no longer deemed adequate to maintain
the then-current ratings on the Class A Notes, and within 30 days of any
such downgrade, suspension, withdrawal or notification, the Swap
Counterparty fails to (i) in the case of a downgrade by Moody's or Fitch,
deliver or post collateral acceptable to the Issuer in amounts sufficient
to secure its obligations under such Interest Rate Swap Agreement, (ii) in
the case of a downgrade by Moody's, Fitch or S&P, assign its rights and
obligations under such Interest Rate Swap Agreement to a replacement
counterparty acceptable to the Issuer or (iii) in the case of a downgrade
by Moody's, Fitch or S&P, establish other arrangements necessary, if any,
in each case so that the Rating Agencies confirm the ratings of the Notes
that were in effect immediately prior to such downgrade, suspension,
withdrawal or notification.
ARTICLE VII
NOTEHOLDERS' LISTS; REPORTING
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished to the Indenture
Trustee (a) not more than five (5) days after each Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Holders of Notes as of such Record Date and (b) at such other times as
the Indenture Trustee may request in writing, within thirty (30) days after
receipt by the Issuer of any such request, a list of similar form and content as
of a date not more than ten (10) days prior to the time such list is furnished;
provided, however, that so long as (i) the Indenture Trustee is the Note
Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list shall
be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.3 Reporting by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen
(15) days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with the rules and regulations prescribed from
time to time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described in
TIA Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and (ii)
of this Section 7.3(a) and by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall correspond to the calendar year.
SECTION 7.4 Reporting and Notices by Indenture Trustee. (a) If required
by TIA Section 313(a), within sixty (60) days after each March 31, beginning
with March 31, 2002, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The Indenture Trustee also shall comply with
TIA Section 313(b).
(b) A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture and the Sale and
Servicing Agreement. The Indenture Trustee shall apply all such money received
by it as provided in this Indenture and the Sale and Servicing Agreement. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, (i) for the benefit of the Noteholders and the
Certificateholders, each of the Trust Accounts other than the Note Payment
Account as provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing
Agreement and (ii) for the exclusive benefit of the Noteholders, the Note
Payment Account as provided in Section 4.1(b) of the Sale and Servicing
Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in
the Collection Account all amounts required to be deposited therein with respect
to the related Collection Period as provided in Sections 4.2 and 4.4 of the Sale
and Servicing Agreement. On or before each Payment Date, all amounts required to
be deposited in the Note Payment Account with respect to the related Collection
Period pursuant to Sections 4.6 and 4.7 of the Sale and Servicing Agreement
shall be withdrawn by the Indenture Trustee from the Collection Account and/or
the Reserve Account and deposited to the Note Payment Account for payment to
Noteholders in accordance with Section 2.8 on such Payment Date. The Indenture
Trustee shall direct the applicable Swap Counterparties to deposit, and shall
otherwise cause to be deposited on each Payment Date, any Net Swap Receipts then
due and payable in the Collection Account. In addition, the Indenture Trustee
shall direct the applicable Swap Counterparties to deposit, and shall otherwise
cause to be deposited, all Swap Termination Payments paid by Swap Counterparties
to the Trust into the Collection Account; provided, that, upon direction of the
Issuer, the Indenture Trustee may retain a part or all of such Swap Termination
Payments to be applied as an initial payment to a replacement Swap Counterparty
or Swap Counterparties, and provided further that the Indenture Trustee shall
promptly deposit any retained amounts that are not so applied to the Collection
Account.
SECTION 8.3 General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Collection Account, the Payahead Account, the
Reserve Account and the Yield Supplement Account shall be invested by the
Indenture Trustee at the direction of the Servicer in Permitted Investments as
provided in Sections 4.1, 4.7 and 5.1 of the Sale and Servicing Agreement. All
income or other gain (net of losses and investment expenses) from investments of
monies deposited in the Collection Account, the Payahead Account, the Reserve
Account and the Yield Supplement Account shall be withdrawn by the Indenture
Trustee from such accounts and distributed (but only under the circumstances set
forth in the Sale and Servicing Agreement in the case of the Reserve Account and
the Yield Supplement Account) as provided in Sections 4.1, 4.7 and 5.1 of the
Sale and Servicing Agreement. The Servicer shall not direct the Indenture
Trustee to make any investment of any funds or to sell any investment held in
any of the Trust Accounts unless the security interest Granted and perfected in
such account will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any such
investment or sale, if requested by the Indenture Trustee, the Issuer shall
deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the
Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Permitted Investment included therein,
except for losses attributable to the Indenture Trustee's failure to make
payments on such Permitted Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Servicer shall have failed to give investment
directions to the Indenture Trustee by 11:00 a.m., New York Time (or such other
time as may be agreed by the Issuer and Indenture Trustee), on the Business Day
preceding each Payment Date for any funds on deposit in the Collection Account,
the Payahead Account, the Reserve Account or the Yield Supplement Account, (ii)
to the knowledge of a Responsible Officer of the Indenture Trustee, a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.2 or (iii) the Notes shall have been declared due and payable following an
Event of Default and amounts collected or receivable from the Trust Estate are
being applied in accordance with Section 5.4 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in such Trust Accounts in one or more
Permitted Investments as set forth in Schedule I hereto.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid in full and all amounts (including Swap Termination Payments)
owing under each Interest Rate Swap Agreement have been paid in full, release
any remaining portion of the Trust Estate that secured the Issuer's obligations
under the Notes and the Interest Rate Swap Agreements from the lien of this
Indenture and release to the Issuer or any other Person entitled thereto any
funds then on deposit in the Trust Accounts. The Indenture Trustee shall release
property from the lien of this Indenture pursuant to this Section 8.4(b) only
upon receipt of (i) an Issuer Request accompanied by confirmation that all
amounts owing by the Issuer under each Interest Rate Swap Agreement have been
paid, an Officer's Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent, if any, provided for in this Indenture relating
to the release of the property from the lien of this Indenture have been
complied with, provided that counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action and (ii) if required by the TIA, Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven (7) days notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.4(b), as a condition to such action, an Opinion
of Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes but with prior notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(a) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(b) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes contained;
(c) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred upon
the Issuer;
(d) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(e) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture
which will not be inconsistent with other provisions of the Indenture; provided
that such action shall not materially adversely affect the interests of the
Noteholders or adversely affect the rights or obligations of any Swap
Counterparty under the related Interest Rate Swap Agreement, or modify or impair
the ability of the Issuer to fully perform any of its obligations under any
Interest Rate Swap Agreement;
(f) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Article VI; or
(g) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be expressly
required by the TIA;
provided, however, that (i) such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder, (ii) the Rating Agency Condition shall have been satisfied with
respect to such action and (iii) such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for Federal or any then
Applicable Tax State income tax purposes as an association taxable as a
corporation or otherwise have any material adverse impact on the Federal or any
then Applicable Tax State income taxation of any Notes Outstanding or
outstanding Certificates or any Noteholder or Certificateholder. The Indenture
Trustee is hereby authorized to join in the execution of any such supplemental
indenture and to make any further appropriate agreements and stipulations that
may be therein contained.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
not less than a majority of the principal amount of the Notes Outstanding, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that (i) such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action, (iii) such
action shall not, as evidenced by an Opinion of Counsel, cause the Issuer to be
characterized for Federal or any then Applicable Tax State income tax purposes
as an association taxable as a corporation or otherwise have any material
adverse impact on the Federal or any then Applicable Tax State income taxation
of any Notes Outstanding or outstanding Certificates or any Noteholder or
Certificateholder, and (iv) (x) such action shall not materially adversely
affect the rights or obligations of any Swap Counterparty under the related
Interest Rate Swap Agreement or modify the obligations of, or impair the ability
of the Issuer to fully perform any of its obligations under such Interest Rate
Swap Agreement or (y) each Swap Counterparty shall have consented thereto (and a
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 Final Payment Date or the date of
payment of any installment of principal of or interest on any Note, or
reduce the principal amount thereof, the interest rate thereon or the
Redemption Price with respect thereto, change the provisions of this
Indenture relating to the application of collections on, or the proceeds of
the sale of, the Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or after
the respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage of the principal amount of
the Notes Outstanding, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(iv) reduce the percentage of the principal amount of
the Notes Outstanding required to direct the Indenture Trustee to sell or
liquidate the Trust Estate pursuant to Section 5.4 if the proceeds of such
sale would be insufficient to pay the principal amount and accrued but
unpaid interest on the Notes and the Certificates;
(v) modify any provision of this Indenture specifying
a percentage of the aggregate principal amount of the Notes necessary to
amend this Indenture or the other Basic Documents except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including the
calculation of any of the individual components of such calculation) or to
affect the rights of the Holders of Notes to the benefit of any provisions
for the mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect to any part
of the Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any such collateral at any
time subject hereto or deprive the Holder of any Note of the security
provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith or on
the basis of an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under this Section
9.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.2, the Indenture Trustee
shall mail to each Swap Counterparty a copy of such supplemental indenture and
to the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
the execution and delivery of such supplemental indenture have been satisfied.
The Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Notes are subject to redemption in whole,
but not in part, at the direction of the Servicer pursuant to Section 9.1(a) of
the Sale and Servicing Agreement, on any Payment Date on which the Servicer
exercises its option to purchase the assets of the Issuer pursuant to said
Section 9.1(a), and the amount paid by the Servicer shall be treated as
collections of Receivables and applied to pay the unpaid principal amount of the
Notes plus accrued and unpaid interest thereon and the Certificate Balance. The
Servicer or the Issuer shall furnish the Rating Agencies and the Noteholders
notice of such redemption. If the Notes are to be redeemed pursuant to this
Section 10.1, the Servicer or the Issuer shall furnish notice of such election
to the Indenture Trustee not later than twenty (20) days prior to the Redemption
Date and the Issuer shall deposit by 10:00 A.M. (New York City time) on the
Redemption Date with the Indenture Trustee in the Note Payment Account the
Redemption Price of the Notes to be redeemed, whereupon all such Notes shall be
due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted promptly following
receipt of notice from the Issuer or Servicer pursuant to Section 10.1, but not
later than ten (10) days prior to the applicable Redemption Date, to each Holder
of Notes as of the close of business on the Record Date preceding the applicable
Redemption Date, at such Holder's address or facsimile number appearing in the
Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer. Failure to give any required
notice of redemption, or any defect therein, to any Holder of any Note
shall not impair or affect the validity of the redemption of any other
Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section 11.1,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(D) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property
or securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within ninety (90) days of such deposit) to
the Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to the Issuer of the property or
securities to be so deposited and of all other such property or securities
made the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause (ii),
is ten percent (10%) or more of the principal amount of the Notes
Outstanding, but such a certificate need not be furnished with respect to
any property or securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent (1%) of the principal amount of the Notes
Outstanding.
(iii) Whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety (90)
days of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release will
not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated
by clause (v) below or securities released from the lien of this Indenture
since the commencement of the then-current calendar year, as set forth in
the certificates required by clause (iii) above and this clause (iv),
equals ten percent (10%) or more of the principal amount of the Notes
Outstanding, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent (1%) of the principal amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions of this
Section 11.1, the Issuer may, without compliance with the requirements of
the other provisions of this Section 11.1, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Vehicles as and to the extent
permitted or required by the Basic Documents and (B) make cash payments out
of the Trust Accounts as and to the extent permitted or required by the
Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any certificate or opinion of a Responsible Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, the Seller, the Administrator or the Issuer,
unless such Responsible Officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, comments, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied herein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
of every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the
Issuer, shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Indenture Trustee at its
Corporate Trust Office; or
(ii) the Issuer by the Indenture Trustee or by any
Noteholder, shall be sufficient for every purpose hereunder if in writing
and mailed first-class, postage prepaid to the Issuer addressed to: MMCA
Auto Owner Trust 2001-1, in care of Wilmington Trust Company at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Department, with a copy to the Administrator at
0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Executive
Vice President and Treasurer, or at any other address previously furnished
in writing to the Indenture Trustee by the Issuer or the Administrator. The
Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, telecopied or mailed by certified mail, return receipt requested, to
(i) in the case of Moody's, at the following address: Xxxxx'x Investors Service,
Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
(ii) in case of S&P, at the following address: Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx (00xx
Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department; (iii) in the case of Fitch, at the following address: Fitch, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed
Surveillance Department; and (iv) in the case of the initial Swap Counterparty
as of the Closing Date, at the following address: Xxxxxxx Xxxxx Capital
Services, Inc., Xxxxxxx Xxxxx World Headquarters, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
SECTION 11.5 Notices to Noteholders; Waiver. (a) Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any
manner, such notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Noteholders
shall be filed with the Indenture Trustee but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such a waiver.
(c) In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or similar activity, it
shall be impractical to mail notice of any event to Noteholders when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the
Indenture Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the
Rating Agencies, failure to give such notice shall not affect any other
rights or obligations created hereunder, and shall not under any
circumstance constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co- trustees and agents.
SECTION 11.10 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, the Swap
Counterparties, and any other party secured hereunder, and any other Person with
an ownership interest in any part of the Trust Estate, any benefit or any legal
or equitable right, remedy or claim under this Indenture; provided, that no Swap
Counterparty shall have any right to institute any Proceeding, judicial or
otherwise, with respect to enforcement of remedies under Article V of this
Indenture upon the occurrence of an Event of Default.
SECTION 11.12 Legal Holiday. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrued for the period from and after any such nominal date.
SECTION 11.13 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities), and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition; Subordination; Claims Against Seller. The
Indenture Trustee, by entering into this Indenture, and each Noteholder or Note
Owner, by accepting a Note or beneficial interest in a Note, as the case may be,
hereby covenant and agree that (a) they will not at any time institute against
the Seller or the Issuer, or join in any institution against the Seller or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture or any of the Basic Documents, (b) any claim that they
may have at any time against the Subtrust Assets of any Subtrust unrelated to
the Notes, and any claim they have at any time against the Seller that they may
seek to enforce against the Subtrust Assets of any Subtrust unrelated to the
Notes, shall be subordinate to the payment in full, including post-petition
interest, in the event that the Seller becomes a debtor or debtor in possession
in a case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other similar proceedings, of the
claims of the holders of any Securities related to such unrelated Subtrust and
the holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust and (c) they hereby irrevocably make the
election afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i) to
secured creditors to receive the treatment afforded by Title 00 Xxxxxx Xxxxxx
Code Section 1111(b)(2) with respect to any secured claim that they may have at
any time against the Seller. The obligations of the Seller under this Indenture
are limited to the related Subtrust and the related Subtrust Assets.
SECTION 11.18 Inspection. The Issuer agrees that, with reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
SECTION 11.19 Employee Benefit Plans. Each Plan that acquires a Note,
by its acceptance of the Note, shall be deemed to represent that its
acquisition, holding and disposition of the Note does not give rise to a
prohibited transaction for which no exemption is available.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
MMCA AUTO OWNER TRUST 2001-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
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
Payahead Account Federated Government Obligations Fund
Reserve Account Federated Government Obligations Fund
Yield Supplement Account Federated Government Obligations Fund
EXHIBIT A-1
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 $140,000,000
No. R-1 CUSIP NO. 553083 BG 0
MMCA AUTO OWNER TRUST 2001-1
4.6363% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-1, 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 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 April 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and Bank of Tokyo- Mitsubishi Trust Company, a New York banking
corporation, as Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that if not paid prior to such date, the entire unpaid
principal amount of this Class A-1 Note shall be due and payable on the earlier
of the April 2002 Payment Date (the "Class A-1 Final Payment Date") and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-1 Note at the rate per
annum shown above on each Payment Date until the principal of this Class A-1
Note is paid or made available for payment, on the principal amount of this
Class A-1 Note outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on this
Class A-1 Note will accrue for each Payment Date from and including the previous
Payment Date (or, in the case of the initial Payment Date, or if no interest has
been paid, from and including the Closing Date) to but excluding such Payment
Date. Interest will be computed on the basis of the actual number of days
elapsed and a 360-day year. Such principal of and interest on this Class A-1
Note shall be paid in the manner specified on the reverse side hereof.
The principal of and interest on this Class A-1 Note are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Class A-1 Note shall be applied first to
interest due and payable on this Class A-1 Note as provided above and then to
the unpaid principal of this Class A-1 Note.
Reference is made to the further provisions of this Class A-1 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-1 Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
Date: April 18, 2001
MMCA AUTO OWNER TRUST 2001-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
-------------------------------------------
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By:
---------------------------
Responsible Officer
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 4.6363% Class A-1 Asset Backed Notes, which, together
with the Floating Rate Class A-2 Asset-Backed Notes, the Floating Rate Class A-3
Asset-Backed Notes, the 5.34% Class A-4 Asset-Backed Notes and the 6.19% Class B
Asset- Backed Notes (collectively, the "Notes"), are issued under the Indenture,
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are equal in right of payment to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-1 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing May 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-1 Note shall be due and payable on the earlier of the Class A-1 Final Payment
Date and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all Classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-1 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-1 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-1 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-1 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-1 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-1 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-1 Note and of any Class A-1 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-1 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-1 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-1 Note may be registered on the Note
Register upon surrender of this Class A-1 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-1 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-1 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH NOTEHOLDER
OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-1 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
A-1 Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-1 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-1 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest Rate
Swap Agreements or modifies the obligations of, or impairs the ability of, the
Issuer to fully perform any of its obligations under such Interest Rate Swap
Agreements. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-1 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-1 Note
and of any Class A-1 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-1 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-1
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-1 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: */
------------------ ------------------------------
Signature Guaranteed
----------------------------*/
Signature Guaranteed
----------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
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 $165,000,000
No. R-1 CUSIP NO. 553083 BH 8
MMCA AUTO OWNER TRUST 2001-1
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-1, 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 SIXTY FIVE 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 April 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and Bank of Tokyo- Mitsubishi Trust Company, a New York banking
corporation, as Indenture Trustee (in such capacity, the "Indenture Trustee");
provided, however, that if not paid prior to such date, the entire unpaid
principal amount of this Class A-2 Note shall be due and payable on the earlier
of the August 2003 Payment Date (the "Class A-2 Final Payment Date") and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-2 Note at a per annum
rate equal to the London interbank offered rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.11% on the principal
amount of this Class A-2 Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a per
annum rate equal to 5.79250% on the original principal amount outstanding on the
Closing Date), subject to certain limitations contained in Section 3.1 of the
Indenture, until the principal of this Class A-2 Note is paid or made available
for payment. Interest on this Class A-2 Note will accrue for each Payment Date
from and including the previous Payment Date (or, in the case of the initial
Payment Date, or if no interest has been paid, from and including the Closing
Date) to but excluding such Payment Date. Interest will be computed on the basis
of the actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class A-2 Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Class A-2 Note are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Class A-2 Note shall be applied first to
interest due and payable on this Class A-2 Note as provided above and then to
the unpaid principal of this Class A-2 Note.
Reference is made to the further provisions of this Class A-2 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-2 Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
Date: April 18, 2001
MMCA AUTO OWNER TRUST 2001-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee Annex B
under the Trust Agreement
By:
--------------------------
Responsible Officer
TRUSTEE'S C6ERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By:
--------------------------
Responsible Officer
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-2 Asset Backed Notes, which,
together with the 4.6363% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-3 Asset-Backed Notes, the 5.34% Class A-4 Asset-Backed Notes and the 6.19%
Class B Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-2 Notes are equal in right of payment to the Class A-1 Notes, the Class A-3
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-2 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing May 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the Class A-2 Final Payment
Date and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all Classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-2 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-2 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-2 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-2 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-2 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-2 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-2 Note and of any Class A-2 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-2 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-2 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-2 Note may be registered on the Note
Register upon surrender of this Class A-2 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-2 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH NOTEHOLDER
OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-2 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
A-2 Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-2 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-2 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest Rate
Swap Agreements or modifies the obligations of, or impairs the ability of, the
Issuer to fully perform any of its obligations under such Interest Rate Swap
Agreements. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-2 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-2 Note
and of any Class A-2 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-2 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-2
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-2 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
EXHIBIT A-3
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 $350,000,000
No. R-1 CUSIP NO. 553083 BJ 4
MMCA AUTO OWNER TRUST 2001-1
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-1, 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 FIFTY 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 April 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and Bank of Tokyo- Mitsubishi Trust Company, a New York banking
corporation, as Indenture Trustee (in such capacity, the "Indenture Trustee");
provided, however, that if not paid prior to such date, the entire unpaid
principal amount of this Class A-3 Note shall be due and payable on the earlier
of the May 2005 Payment Date (the "Class A-3 Final Payment Date") and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-3 Note at a per annum
rate equal to the London interbank offered rate ("LIBOR") for one-month U.S.
Dollar deposits in Europe (determined as set forth in the Indenture) on the
applicable LIBOR Determination Date, in each case plus 0.18% on the principal
amount of this Class A-3 Note outstanding on the preceding Payment Date
(provided, however, that interest shall accrue from the Closing Date to the
initial Payment Date, and shall be payable on the initial Payment Date, at a per
annum rate equal to 5.79250% on the original principal amount outstanding on the
Closing Date), subject to certain limitations contained in Section 3.1 of the
Indenture, until the principal of this Class A-3 Note is paid or made available
for payment. Interest on this Class A-3 Note will accrue for each Payment Date
from and including the previous Payment Date (or, in the case of the initial
Payment Date or if no interest has been paid, from and including the Closing
Date) to but excluding such Payment Date. Interest will be computed on the basis
of the actual number of days elapsed and a 360-day year. Such principal of and
interest on this Class A-3 Note shall be paid in the manner specified on the
reverse side hereof.
The principal of and interest on this Class A-3 Note are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Class A-3 Note shall be applied first to
interest due and payable on this Class A-3 Note as provided above and then to
the unpaid principal of this Class A-3 Note.
Reference is made to the further provisions of this Class A-3 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-3 Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
Date: April 18, 2001
MMCA AUTO OWNER TRUST 2001-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee under the
Trust Agreement
By:
--------------------------
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------
Responsible Officer
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-3 Asset Backed Notes, which,
together with the 4.6363% Class A-1 Asset-Backed Notes, the Floating Rate Class
A-2 Asset-Backed Notes, the 5.34% Class A-4 Asset-Backed Notes and the 6.19%
Class B Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-3 Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-4 Notes and senior in right of payment to the Class B
Notes, and the Class A-3 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing May 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the Class A-3 Final Payment
Date and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all Classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-3 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-3 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-3 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-3 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-3 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-3 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-3 Note and of any Class A-3 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-3 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-3 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-3 Note may be registered on the Note
Register upon surrender of this Class A-3 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-3 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-3 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH NOTEHOLDER
OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-3 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
A-3 Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-3 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-3 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group and with the consent
of the Swap Counterparties if such amendment adversely affects the rights or
obligations of the Swap Counterparties under the related Interest Rate Swap
Agreements or modifies the obligations of, or impairs the ability of, the Issuer
to fully perform any of its obligations under such Interest Rate Swap
Agreements. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-3 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-3 Note
and of any Class A-3 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-3 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-3
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Class A-3 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
EXHIBIT A-4
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 $193,022,000
No. R-1 CUSIP NO. 553083 BK 1
MMCA AUTO OWNER TRUST 2001-1
5.34% CLASS A-4 ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-1, 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 NINETY THREE MILLION TWENTY TWO
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 April 1, 2001 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity, the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Class A-4 Note shall be due and
payable on the earlier of the December 2005 Payment Date (the "Class A-4 Final
Payment Date") and the Redemption Date, if any, pursuant to Section 10.1 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Class A-4 Note at the rate per
annum shown above on each Payment Date until the principal of this Class A-4
Note is paid or made available for payment, on the principal amount of this
Class A-4 Note outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on this
Class A-4 Note will accrue for each Payment Date from and including the 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 Class A-4 Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Class A-4 Note are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Class A-4 Note shall be applied first to
interest due and payable on this Class A-4 Note as provided above and then to
the unpaid principal of this Class A-4 Note.
Reference is made to the further provisions of this Class A-4 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-4 Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
Date: April 18, 2001
MMCA AUTO OWNER TRUST 2001-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
--------------------------
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------
Responsible Officer
This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.34% Class A-4 Asset Backed Notes, which, together
with the 4.6363% Class A-1 Asset-Backed Notes, the Floating Rate Class A-2
Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed Notes and the 6.19%
Class B Asset-Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-4 Notes are equal in right of payment to the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes and senior in right of payment to the Class B
Notes, and the Class A-4 Notes are subordinate to the rights of the Swap
Counterparties to receive payments (other than Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements, each as and to the extent
provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the fifteenth
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing on May 15, 2001.
As described above, the entire unpaid principal amount of this Class
A-4 Note shall be due and payable on the earlier of the Class A-4 Final Payment
Date and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all Classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-4 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A-4 Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A-4 Note (or
one or more Predecessor Notes) on the Note Register as of the close of business
on each Record Date, except that with respect to Class A-4 Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class A-4 Note be submitted for notation of payment.
Any reduction in the principal amount of this Class A-4 Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-4 Note and of any Class A-4 Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-4 Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such Payment
Date by notice mailed or transmitted by facsimile prior to such Payment Date,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Class A-4 Note at the Indenture Trustee's Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class A-4 Note may be registered on the Note
Register upon surrender of this Class A-4 Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-4 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-4 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH NOTEHOLDER
OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class A-4 Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
A-4 Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-4 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-4 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest Rate
Swap Agreements or modifies the obligations of, or impairs the ability of, the
Issuer to fully perform any of its obligations under such Interest Rate Swap
Agreements. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Class A Notes Outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class A-4 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class A-4 Note
and of any Class A-4 Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-4 Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes (or the Swap
Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class A-4
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-4 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
EXHIBIT B
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 $64,095,000
No. R-1 CUSIP NO. 553083 BL 9
MMCA AUTO OWNER TRUST 2001-1
6.19% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 2001-1, 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 FOUR MILLION NINETY FIVE 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 April 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Bank of Tokyo-Mitsubishi Trust Company, a
New York banking corporation, as Indenture Trustee (in such capacity, the
"Indenture Trustee"); provided, however, that if not paid prior to such date,
the entire unpaid principal amount of this Class B Note shall be due and payable
on the earlier of the June 2007 Payment Date (the "Class B Final Payment Date")
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Class B Note at the rate per
annum shown above on each Payment Date until the principal of this Class B Note
is paid or made available for payment, on the principal amount of this Class B
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Class B
Note will accrue for each Payment Date from and including the 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 Class B Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Class B Note shall be applied first to interest due
and payable on this Class B Note as provided above and then to the unpaid
principal of this Class B Note.
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class B
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer, as of the date set forth
below.
Date: April 18, 2001
MMCA AUTO OWNER TRUST 2001-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner
Trustee under the Trust Agreement
By:
--------------------------
Responsible Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By:
--------------------------
Responsible Officer
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.19% Class B Asset Backed Notes, which, together with
the 4.6363% Class A-1 Asset-Backed Notes, the Floating Rate Class A-2
Asset-Backed Notes, the Floating Rate Class A-3 Asset-Backed Notes and the 5.34%
Class A-4 Asset- Backed Notes (collectively, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, and to amounts payable
to the Swap Counterparties pursuant to the Interest Rate Swap Agreements, as and
to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the fifteenth day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing May 15, 2001.
As described above, the entire unpaid principal amount of this Class B
Note shall be due and payable on the earlier of the Class B Final Payment Date
and the Redemption Date, if any, pursuant to Section 10.1. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred and be
continuing and the Indenture Trustee or the Holders of the Notes representing
not less than a majority of the outstanding principal amount of the Notes of all
Classes have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class B
Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class B Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class B Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class B Note (or one
or more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Class B Notes registered on the
Record Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall be
mailed to the Person entitled thereto at the address of such Person as it
appears on the Note Register as of the applicable Record Date without requiring
that this Class B Note be submitted for notation of payment. Any reduction in
the principal amount of this Class B Note (or any one or more Predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Holders of this Class B Note and of any Class B Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class B Note on a Payment Date, then the Indenture Trustee, in the name of
and on behalf of the Issuer, will notify the Person who was the Registered
Holder hereof as of the Record Date preceding such Payment Date by notice mailed
or transmitted by facsimile prior to such Payment Date, and the amount then due
and payable shall be payable only upon presentation and surrender of this Class
B Note at the Indenture Trustee's Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York, New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class B Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in the manner
and to the extent described in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Class B Note may be registered on the Note
Register upon surrender of this Class B Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class B Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class B Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that (a) such Noteholder or Note Owner
will not at any time institute against the Seller, or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents and (b) any claim
that such Noteholder or Note Owner may have at any time against the Subtrust
Assets of any Subtrust unrelated to the Notes, and any claim that such
Noteholder may have against the Seller that such Noteholder may seek to enforce
against the Subtrust Assets of any Subtrust unrelated to the Notes, shall be
subordinate to the payment in full, including post-petition interest, in the
event that the Seller becomes a debtor or debtor in possession in a case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of the
holders of any Securities related to such unrelated Subtrust and the holders of
any other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust. The obligations of the Seller represented by this Note are
limited to the related Subtrust and the related Subtrust Assets.
Each Noteholder or Note Owner that is a Plan, by its acceptance of a
Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be
deemed to represent that its acquisition, holding and disposition of the Note or
beneficial interest in the Note, as applicable, does not give rise to a
prohibited transaction for which no exemption is available.
EACH NOTEHOLDER OR NOTE OWNER, BY ACCEPTANCE OF A NOTE OR, IN THE CASE
OF A NOTE OWNER, A BENEFICIAL INTEREST IN A NOTE, HEREBY IRREVOCABLY MAKES THE
ELECTION AFFORDED BY TITLE 11 UNITED STATES CODE SECTION 1111(b)(1)(A)(i) TO
SECURED CREDITORS TO RECEIVE THE TREATMENT AFFORDED BY XXXXX 00 XXXXXX XXXXXX
CODE SECTION 1111(b)(2) WITH RESPECT TO ANY SECURED CLAIM THAT SUCH NOTEHOLDER
OR NOTE OWNER MAY HAVE AT ANY TIME AGAINST THE SELLER.
The Issuer has entered into the Indenture and this Class B Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class
B Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class B Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class B Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the all of the Notes Outstanding, voting as a group, and with the
consent of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related Interest Rate
Swap Agreements or modifies the obligations of, or impairs the ability of, the
Issuer to fully perform any of its obligations under such Interest Rate Swap
Agreements. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Notes Outstanding on behalf of
the Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class B
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class B Note and of any Class B
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class B Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes (or the Swap Counterparties) issued thereunder.
The term "Issuer," as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Class B Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi Trust Company,
in its individual capacity, Wilmington Trust Company, in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class B Note
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note, by his
acceptance hereof, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Class B Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________________ ______________________________*/
Signature Guaranteed
______________________________*/
Signature Guaranteed
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar.
EXHIBIT C
[FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 3.6(a)]
To the Addressees Indicated
on Schedule A hereto
Re: MMCA Auto Owner Trust 2001-1 - Security Interest Matters
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit of
America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto Receivables Trust,
a Delaware business trust ("MART"), in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of April 1, 2001 (the
"Purchase Agreement"), between MMCA and MART, (ii) the Sale and Servicing
Agreement, dated as of April 1, 2001 (the "Sale and Servicing Agreement"), by
and among MART, as seller, MMCA, as servicer, and MMCA Auto Owner Trust 2001-1,
a Delaware business trust (the "Trust"), as issuer, (iii) the Indenture, dated
as of April 1, 2001 (the "Indenture"), between the Trust and Bank of
Tokyo-Mitsubishi Trust Company, as indenture trustee for the benefit of the
Holders of the Notes (the "Indenture Trustee"), and (iv) the Amended and
Restated Trust Agreement, dated as of April 1, 2001 (the "Trust Agreement"),
between MART and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to such terms in the Sale and Servicing Agreement.
Pursuant to the Purchase Agreement and the Assignments (as such term is
defined in the Purchase Agreement) related thereto, MMCA proposes to sell to
MART on the Closing Date, and MART proposes to purchase from MMCA, among other
things, those motor vehicle retail installment sale contracts identified on the
Schedule of Receivables attached as Exhibit B to the Purchase Agreement
(collectively, the "Receivables") secured by new and used automobiles and
sport-utility vehicles (collectively, the "Financed Vehicles"), certain monies
due or received thereunder after the Cutoff Date, 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 $140,000,000 principal amount of 4.6363% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), $165,000,000 principal amount of Floating Rate Class A-2
Asset Backed Notes (the "Class A-2 Notes"), $310,000,000 principal amount of
Floating Rate Class A-3 Asset Backed Notes (the "Underwritten Class A-3 Notes"),
$140,022,000 principal amount of 5.34% Class A-4 Asset Backed Notes (the
"Underwritten Class A-4 Notes" and, together with the Class A-1 Notes, the Class
A-2 Notes and the Underwritten Class A-3 Notes, the "Underwritten Class A
Notes"), and $10,000,000 principal amount of 6.19% Class B Asset Backed Notes
(the "Underwritten Class B Notes" and, together with the Underwritten Class A
Notes, the "Underwritten Notes"), pursuant to the provisions of an Underwriting
Agreement, dated April 4, 2001 (the "Underwriting Agreement"), between MART and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
representative of the several underwriters named therein (in such capacity, the
"Representative"). In addition, the Trust will issue and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated will act as placement agent
(the "Placement Agent") pursuant to a Placement Agency Agreement, dated April 4,
2001 (the "Placement Agency Agreement"), between the Placement Agent and MART of
an additional $40,000,000 principal amount of Floating Rate Class A-3 Asset
Backed Notes (the "Direct Purchase Class A-3 Notes"), $53,000,000 principal
amount of 5.34% Class A-4 Asset Backed Notes (the "Direct Purchase Class A-4
Notes") and $54,095,000 principal amount of 6.19% Class B Asset Backed Notes
(the "Direct Purchase Class B Notes" and, together with the Direct Purchase
Class A-3 Notes and the Direct Purchase Class A- 4 Notes, the "Direct Purchase
Notes" and, together with the Underwritten Notes, the "Notes"). Pursuant to
separate note purchase agreements, each dated April 4, 2001 (the "Note Purchase
Agreements"), an affiliate of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
will purchase the Direct Purchase Class A-3 Notes and the Direct Purchase Class
B Notes, and another affiliate of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated will purchase the Direct Purchase Class A-4 Notes. The Trust also
will issue $73,955,367.36 aggregate principal amount of Asset Backed
Certificates (the "Certificates") pursuant to the Trust Agreement.
In our examination, we have assumed the genuineness of all signatures
(including endorsements), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of MMCA and MART and their
officers and other representatives and of public officials.
In rendering the opinions set forth herein, we have examined and relied
on originals or copies, certified or otherwise identified to our satisfaction,
of the following:
(A) the Purchase Agreement, the Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the First-Tier Assignment (as such term is
defined in the Purchase Agreement);
(B) a Certificate of MART, dated the date hereof, a copy of which
is attached as Exhibit A hereto (the "MART Certificate");
(C) an unfiled but signed copy of (i) a financing statement
naming "MMCA Auto Receivables Trust" as debtor, "MMCA Auto Owner Trust 2001-1"
as secured party and "Bank of Tokyo-Mitsubishi Trust Company as Indenture
Trustee" as assignee and (ii) a financing statement naming "Chase Manhattan Bank
USA, N.A., as Trustee of MMCA Auto Receivables Trust" as debtor, "MMCA Auto
Owner Trust 2001-1" as secured party and "Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee" as assignee, which we understand will be filed
within ten (10) days of the transfer of the security interest in the office of
the Secretary of State of the State of California (such filing office, the
"Filing Office" and such financing statements, the "Financing Statements");
(D) the certified reports of the Filing Office as to financing
statements naming (i) "MMCA Auto Receivables Trust" as debtor, (ii) "Chase
Manhattan Bank Delaware, as Trustee of MMCA Auto Receivables Trust" as debtor,
and (iii) "Chase Manhattan Bank USA, N.A., as Trustee of MMCA Auto Receivables
Trust" as debtor, and filed in the Filing Office as of April 6, 2001 (the
"Search Reports");
(E) forms of motor vehicle retail installment sale contracts (the
"Form Contracts") attached as Annex A to the MART Certificate; and
(F) such other agreements, certificates or documents as we have
deemed necessary or appropriate as a basis for the opinion set forth below.
Unless otherwise indicated, references to the "UCC" shall mean: (i)
with respect to the validity of the security interests held by the Trust and the
Indenture Trustee, the Uniform Commercial Code as in effect on the date hereof
in the State of New York, (ii) with respect to the perfection and the effect of
perfection or non-perfection of the security interest of the Trust in the
Receivables, the Uniform Commercial Code as in effect on the date hereof in the
State of California, and (iii) with respect to our opinion in paragraph 1 below,
the Uniform Commercial Code as in effect on the date hereof in the States of New
York and California.
We express no opinion as to the laws of any jurisdiction other than (i)
the laws of the State of New York and (ii) with respect to the security interest
opinions set forth in paragraphs 1, 2 and 3 herein, the UCC. References to the
"Applicable States" shall mean California and/or New York, as applicable.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
(a) Each Receivable is a motor vehicle retail installment sale contract
that constitutes "chattel paper" as defined in Section 9-105 of the UCC.
(b) The provisions of the Sale and Servicing Agreement are effective to
create, in favor of the Trust, a valid security interest (as such term is
defined in Section 1-201 of the UCC) in MART's rights in the Receivables and
proceeds thereof, which security interest if characterized as a transfer for
security will secure payment of the Notes.
(c) The Financing Statements are in appropriate form for filing in the
Filing Office under the UCC. Upon the filing of the Financing Statements in the
Filing Office, the security interest in favor of the Trust in the Receivables
and proceeds thereof will be perfected, and no other security interest of any
other creditor of MART's will be equal or prior to the security interest of the
Trust in the Receivables and proceeds thereof.
(d) The provisions of the Indenture are effective to create in favor of
the Indenture Trustee, a valid security interest in the Trust's rights in the
Receivables and proceeds thereof to secure payment of the Notes.
Our opinions in paragraphs 1-4 above are subject to the
following qualifications:
(A) we have assumed that the Receivables exist and that MART has
sufficient rights in the Receivables for the security interest of the Trust to
attach, and that the Trust has sufficient rights in the Receivables for the
security interest of the Indenture Trustee to attach, and we express no opinion
as to the nature or extent of MART's or the Trust's rights in, or title to, any
Receivable;
(B) our security interest opinions are limited to Article 9 of
the UCC, and therefore such opinions do not address (i) laws of jurisdictions
other than Applicable States, and of Applicable States except for Article 9 of
the UCC, (ii) collateral of a type not subject to Article 9 of the UCC, and
(iii) under Section 9-103 of the UCC, what law governs perfection of the
security interests granted in the collateral covered by this opinion. We call to
your attention that California has recently enacted SB 45 ("Revised Article 9")
which contains a revised version of Article 9 of the Uniform Commercial Code
with conforming and miscellaneous changes to other articles of the Uniform
Commercial Code. By its terms, SB 45 does not become effective until July 1,
2001. The opinions expressed in paragraphs 1 and 3 herein are based solely on
the Uniform Commercial Code in effect in the State of California on the date
hereof and we express no opinion as to the effect of Revised Article 9 on the
validity, perfection or priority of the security interest of the Trust or the
Indenture Trustee. We note that a version of Revised Article 9 has also been
introduced into the legislature in New York.
(C) we call to your attention that under the UCC, events
occurring subsequent to the date hereof may affect any security interest subject
to the UCC including, but not limited to, factors of the type identified in
Section 9-306 with respect to proceeds; Section 9-402 with respect to changes in
name, structure and corporate identity of the debtor; Section 9-103 with respect
to changes in the location of the collateral and the location of the debtor;
Section 9-316 with respect to subordination agreements; Section 9-403 with
respect to continuation statements; and Sections 9-307, 9-308 and 9-309 with
respect to subsequent purchasers of the collateral. In addition, actions taken
by a secured party (e.g., releasing or assigning the security interest,
delivering possession of the collateral to the debtor or another person and
voluntarily subordinating a security interest) may affect the validity,
perfection or priority of a security interest;
(D) we have assumed that each Receivable is substantially in the
form of a Form Contract, and we have assumed that no Receivable is or will be
credited to a securities account;
(E) we have assumed that there are no agreements between MART or
the Trust and any account debtor prohibiting, restricting or conditioning the
assignment of any portion of the Receivables;
(F) we express no opinion with respect to the perfection or
priority of the security interest of the Indenture Trustee;
(G) we call to your attention that the security interest of the
Trust and the Indenture Trustee may be subject to the rights of account debtors,
claims and defenses of account debtors and the terms of agreements with account
debtors;
(H) we express no opinion regarding the security interest of the
Trust or the Indenture Trustee in any 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);
(I) we express no opinion with respect to the Trust's or
Indenture Trustee's rights in and to any property which secures any Receivable;
(J) we express no opinion with respect to the priority of the
interest of the Trust in the Receivables against any of the following: (
pursuant to Section 9-301(1) of the UCC, a lien creditor or bulk purchaser who
attached or levied prior to the perfection of the security interest of the
Trust; ( pursuant to Section 9-301(4) of the UCC, a lien creditor to the extent
that provision limits the priority afforded future advances; ( pursuant to
Section 9-312(7) of the UCC, another secured creditor to the extent that
provision limits the priority afforded future advances; ( pursuant to Sections
9-103(1)(d) or (3)(e) and Section 9-312(1) of the UCC, a security interest
perfected under the laws of another jurisdiction to the extent MART was located
in such jurisdiction within four months prior to the date of the perfection of
the security interest of the Trust; ( pursuant to Section 9-312(3) and (4) of
the UCC, a "purchase money security interest" as such term is defined in Section
9-107 of the UCC; ( pursuant to Section 9-312(6) of the UCC, another secured
party with a perfected security interest in other property of MART to the extent
the Receivables are proceeds of such other creditor's property; ( pursuant to
Sections 9-104, 9-113, 4-208 and 9-302(1) of the UCC, another creditor not
required to file a financing statement to perfect its interest; and ( pursuant
to Section 9-401(2) and (3) of the UCC, the security interest of a creditor who
filed a financing statement based on a prior or incorrect location of MART or
the Receivables or use of the Receivables to the extent such other financing
statement would be effective under Section 9-401(2) or (3) of the UCC;
(K) we have assumed that no financing statement naming "MMCA Auto
Receivables Trust" or "Chase Manhattan Bank USA, N.A., as Trustee of MMCA Auto
Receivables Trust" as debtor was filed in the Filing Office between the
effective date of the Search Reports and the date of the filing of the Financing
Statements in the Filing Office;
(L) as used in paragraph 2, the term "security interest" is used
as defined in Section 1-201 of the UCC, which definition includes both (i) an
interest in chattel paper to secure payment and (ii) a sale of chattel paper. In
addition, we express no opinion whether or to what extent the transfer pursuant
to the Sale and Servicing Agreement will be characterized as a sale or a
transfer for security;
(M) we have assumed that (i) the Sale and Servicing Agreement
constitutes the legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms and (ii) the Indenture
constitutes the legal, valid and binding obligation of the Indenture Trustee and
the Trust, enforceable against the Indenture Trustee and the Trust,
respectively, in accordance with its terms; and
(N) we call to your attention that in the case of the issuance of
distributions on, or proceeds of, the Receivables, the security interest of the
Trust therein will be perfected only if possession thereof is obtained or other
appropriate action is taken in accordance with the provisions of the UCC or
other applicable law and, in the case of certain types of distributions or
proceeds, other parties such as holders in due course, protected purchasers and
buyers in the ordinary course of business may obtain superior priority.
We call to your attention that, with respect to paragraphs (a), (e),
(j)(iv) and (k) of our qualifications set forth above, we have relied upon
representations and warranties of MART as to the assumptions therein.
This opinion is being furnished only to you and is solely for your
benefit in connection with the closing today under the Sale and Servicing
Agreement and is not to be used, circulated, quoted, relied upon or otherwise
referred to for any purpose without prior written consent in each instance.
Very truly yours,
Schedule A
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Chase Manhattan Bank USA, N.A.
as Trustee
MMCA Auto Receivables Trust
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
MMCA Auto Owner Trust 2001-1
c/o Wilmington Trust Company, as
Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Wilmington Trust Company, as
Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Bank of Tokyo-Mitsubishi Trust Company
as Indenture Trustee
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
as Representative of the several Underwriters,
and as Placement Agent
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Exhibit A (to Opinion)
MMCA AUTO RECEIVABLES TRUST
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of MMCA AUTO
RECEIVABLES TRUST ("MART"), does hereby certify as follows:
(2) No financing statements or other filings have been filed naming
MART as debtor or seller in any State of the United States of America to perfect
a sale, transfer or assignment of or lien, encumbrance, security interest or
other interest in, or which otherwise pertains to, the Receivables.
(3) At all times since the establishment of MART, MART has had one
place of business and it is and has been located in Cypress, California.
(4) At all times since the establishment of MART and on the date
hereof, MART has had a mailing address of X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx
00000-0000.
(5) Attached hereto as Annex A are forms of motor vehicle retail
installment sales contracts used to create the Receivables (the "Form
Contracts"), and each Receivable is substantially in the form of a Form
Contract.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Sale and Servicing Agreement, dated as of
April 1, 2001, by and among MART, Mitsubishi Motors Credit of America, Inc., as
Servicer, and MMCA Auto Owner Trust 2001-1, as Trust, and accepted and agreed to
by Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand this 18th day of April, 2001.
MMCA AUTO RECEIVABLES TRUST
By:
-------------------------
Name:
Title:
Annex A (to Opinion)
FORMS OF RETAIL INSTALLMENT SALES CONTRACT
Annex B (to Opinion)
CERTIFIED REPORT OF FILING OFFICE ON PRIOR FINANCING STATEMENTS
Annex A
[FORM OF RETAIL INSTALLMENT SALE CONTRACT]
C-12
