Exhibit No. 4.3
INDENTURE
between
MMCA AUTO OWNER TRUST 1998-1,
as Issuer,
and
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as Indenture Trustee
Dated as of August 1, 1998
---------------------------
$200,000,000 5.621% Class A-1 Asset Backed Notes
$250,000,000 5.72% Class A-2 Asset Backed Notes
$322,056,000 5.86% Class A-3 Asset Backed Notes
$60,462,000 6.07% Class B Asset Backed Notes
----------------------------
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
310 (a)(1)......................................................... 6.11
(a)(2)......................................................... 6.11
(a)(3)......................................................... 6.10
(a)(4)....................................................... N.A.(2)
(a)(5)......................................................... 6.11
(b) ....................................................... 6.8;6.11
(c) .......................................................... N.A.
311 (a) .......................................................... 6.12
(b) .......................................................... 6.12
(c) .......................................................... N.A.
312 (a) .......................................................... 7.1
(b) .......................................................... 7.2
(c) .......................................................... 7.2
313 (a) .......................................................... 7.4
(b)(1)......................................................... 7.4
(b)(2)......................................................7.4; 11.5
(c) .......................................................... 7.4
(d) .......................................................... 7.3
314 (a) ........................................................... 7.3
(b) ......................................................... 11.15
(c)(1)......................................................... 11.1
(c)(2)......................................................... 11.1
(c)(3)......................................................... 11.1
(d) .......................................................... 11.1
(e) .......................................................... 11.1
(f) .......................................................... 11.1
315 (a) .......................................................... 6.1
(b) ........................................................6.5;11.5
(c) .......................................................... 6.1
(d) .......................................................... 6.1
(e) .......................................................... 5.13
316 (a) (last sentence)............................................ 1.1
(a)(1)(A)...................................................... 5.11
(a)(1)(B)...................................................... 5.12
(a)(2)......................................................... N.A.
(b) .......................................................... 5.7
(c) .......................................................... N.A
317 (a)(1)......................................................... 5.3
(a)(2)......................................................... 5.3
(b) .......................................................... 3.3
318 (a) .......................................................... 11.7
-----------------------
1 Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE...............................2
SECTION 1.1 (a) Definitions............................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act..........14
SECTION 1.3 Rules of Construction......................................15
ARTICLE II
THE NOTES...............................................................16
SECTION 2.1 Form.......................................................16
SECTION 2.2 Execution, Authentication and Delivery.....................16
SECTION 2.3 Temporary Notes............................................17
SECTION 2.4 Tax Treatment..............................................18
SECTION 2.5 Registration; Registration of Transfer and Exchange........18
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.................20
SECTION 2.7 Persons Deemed Owner.......................................21
SECTION 2.8 Payments...................................................21
SECTION 2.9 Cancellation...............................................25
SECTION 2.10 Release of Collateral.....................................26
SECTION 2.11 Book-Entry Notes..........................................26
SECTION 2.12 Notices to Clearing Agency................................27
SECTION 2.13 Definitive Notes..........................................27
SECTION 2.14 Authenticating Agents.....................................28
ARTICLE III
COVENANTS...............................................................30
SECTION 3.1 Payment Covenant...........................................30
SECTION 3.2 Maintenance of Office or Agency............................30
SECTION 3.3 Money for Payments To Be Held in Trust.....................30
SECTION 3.4 Existence..................................................32
SECTION 3.5 Protection of Trust Estate.................................33
SECTION 3.6 Opinions as to Trust Estate................................33
SECTION 3.7 Performance of Obligations; Servicing of
Receivables..........................................34
SECTION 3.8 Negative Covenants.........................................36
SECTION 3.9 Annual Statement as to Compliance..........................37
SECTION 3.10 Issuer May Consolidate, etc.,
Only on Certain Terms................................37
SECTION 3.11 Successor of Transferee...................................40
SECTION 3.12 No Other Business.........................................40
SECTION 3.13 No Borrowing..............................................40
SECTION 3.14 Servicer's Obligations....................................40
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.........40
SECTION 3.16 Capital Expenditures......................................41
SECTION 3.17 Further Instruments and Acts..............................41
SECTION 3.18 Restricted Payments.......................................41
SECTION 3.19 Notice of Events of Default...............................41
SECTION 3.20 Removal of Administrator..................................42
ARTICLE IV
SATISFACTION AND DISCHARGE..............................................43
SECTION 4.1 Satisfaction and Discharge of Indenture....................43
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes........44
SECTION 4.3 Application of Trust Money.................................46
SECTION 4.4 Repayment of Monies Held by Paying Agent...................46
ARTICLE V
REMEDIES................................................................47
SECTION 5.1 Events of Default..........................................47
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.........48
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.....................49
SECTION 5.4 Remedies; Priorities.......................................52
SECTION 5.5 Optional Preservation of the Receivables...................53
SECTION 5.6 Limitation of Suits........................................54
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest.......................55
SECTION 5.8 Restoration of Rights and Remedies.........................55
SECTION 5.9 Rights and Remedies Cumulative.............................55
SECTION 5.10 Delay or Omission Not a Waiver............................55
SECTION 5.11 Control by Noteholders....................................56
SECTION 5.12 Waiver of Past Defaults...................................56
SECTION 5.13 Undertaking for Costs.....................................57
SECTION 5.14 Waiver of Stay or Extension Laws..........................57
SECTION 5.15 Action on Notes...........................................58
SECTION 5.16 Performance and Enforcement of Certain
Obligations..........................................58
ARTICLE VI
THE INDENTURE TRUSTEE...................................................60
SECTION 6.1 Duties of Indenture Trustee................................60
SECTION 6.2 Rights of Indenture Trustee................................61
SECTION 6.3 Individual Rights of Indenture Trustee.....................63
SECTION 6.4 Indenture Trustee's Disclaimer.............................63
SECTION 6.5 Notice of Defaults.........................................63
SECTION 6.6 Reports by Indenture Trustee to Holders....................63
SECTION 6.7 Compensation and Indemnity.................................64
SECTION 6.8 Replacement of Indenture Trustee...........................64
SECTION 6.9 Successor Indenture Trustee by Merger......................66
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee...........................66
SECTION 6.11 Eligibility; Disqualification.............................68
SECTION 6.12 Preferential Collection of Claims Against Issuer..........68
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance
Act Licenses.........................................68
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS..........................................69
SECTION 7.1 Issuer To Furnish Indenture Trustee Names
and Addresses of Noteholders.........................69
SECTION 7.2 Preservation of Information; Communications
to Noteholders.......................................69
SECTION 7.3 Reports by Issuer..........................................69
SECTION 7.4 Reports by Indenture Trustee...............................70
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................71
SECTION 8.1 Collection of Money........................................71
SECTION 8.2 Trust Accounts, the Reserve Account, the
Supplemental Reserve Account and the Yield
Supplement Account...................................71
SECTION 8.3 General Provisions Regarding Accounts......................72
SECTION 8.4 Release of Trust Estate....................................73
SECTION 8.5 Opinion of Counsel.........................................73
ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................75
SECTION 9.1 Supplemental Indentures Without Consent
of Noteholders.......................................75
SECTION 9.2 Supplemental Indentures with Consent
of Noteholders.......................................77
SECTION 9.3 Execution of Supplemental Indentures.......................79
SECTION 9.4 Effect of Supplemental Indenture...........................79
SECTION 9.5 Conformity with Trust Indenture Act........................80
SECTION 9.6 Reference in Notes to Supplemental Indentures..............80
ARTICLE X
REDEMPTION OF NOTES.....................................................81
SECTION 10.1 Redemption................................................81
SECTION 10.2 Form of Redemption Notice.................................81
SECTION 10.3 Notes Payable on Redemption Date..........................82
ARTICLE XI
MISCELLANEOUS...........................................................83
SECTION 11.1 Compliance Certificates and Opinions, etc.................83
SECTION 11.2 Form of Documents Delivered to Indenture Trustee..........85
SECTION 11.3 Acts of Noteholders.......................................86
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer
and Rating Agencies..................................87
SECTION 11.5 Notices to Noteholders; Waiver............................88
SECTION 11.6 Alternate Payment and Notice Provisions...................88
SECTION 11.7 Conflict with Trust Indenture Act.........................89
SECTION 11.8 Effect of Headings and Table of Contents..................89
SECTION 11.9 Successors and Assigns....................................89
SECTION 11.10 Separability.............................................89
SECTION 11.11 Benefits of Indenture....................................89
SECTION 11.12 Legal Holiday............................................89
SECTION 11.13 Governing Law............................................90
SECTION 11.14 Counterparts.............................................90
SECTION 11.15 Recording of Indenture...................................90
SECTION 11.16 Trust Obligation.........................................90
SECTION 11.17 No Petition..............................................91
SECTION 11.18 Inspection...............................................91
SCHEDULE A............................................................SA-1
SCHEDULE I............................................................SI-1
EXHIBIT A-1............................................................A-1
EXHIBIT A-2............................................................A-2
EXHIBIT A-3............................................................A-3
EXHIBIT A-4............................................................A-4
EXHIBIT B..............................................................B-1
INDENTURE, dated as of August 1, 1998 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Indenture"), between MMCA AUTO OWNER TRUST 1998-1, a Delaware business
trust (the "Issuer"), and BANK OF TOKYO - MITSUBISHI TRUST COMPANY, a New
York banking corporation, as trustee 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 5.621% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 5.72%
Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 5.86% Class A-3 Asset
Backed Notes (the "Class A-3 Notes" and, together with the Class A-1 Notes
and the Class A-2 Notes, the "Class A Notes") and 6.07% Class B Asset
Backed Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all of the Issuer's right, title and interest in, to and under,
whether now owned or existing or hereafter acquired or arising (a) the
Receivables; (b) with respect to Actuarial Receivables, monies due
thereunder on or after the Cutoff Date (including Payaheads) and, with
respect to Simple Interest Receivables, monies due or received thereunder
on or 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) 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) rights to receive proceeds with respect
to the Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements; (f) all of the Seller's rights to the Receivable Files; (g) the
Trust Accounts, the Reserve Account, the Supplemental Reserve Account and
the Yield Supplement Account and all amounts, securities, financial assets,
investments and other property deposited in or credited to any of the
foregoing and all proceeds thereof; (h) the Sale and Servicing Agreement
and the Yield Supplement Agreement; (i) all of the Seller's rights under
the Purchase Agreement, including the right of the Seller to cause MMCA to
repurchase Receivables from the Seller; (j) 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 repurchased by
the Servicer or purchased by the Seller) acquired by or on behalf of the
Issuer; (l) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (m) 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 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.
The Indenture Trustee, as Indenture Trustee on behalf of
the Holders of the Notes, 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 may be
adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 (a) Definitions. 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 August 1, 1998, 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.
"Authorized Officer" shall mean, 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 Authorized 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.
"Basic Documents" shall mean this Indenture, the Certificate
of Trust, the Trust Agreement, the Assignment, the Sale and Servicing
Agreement, the Purchase Agreement, the Administration Agreement, the Note
Depository Agreement, the Yield Supplement Agreement, the Control Agreement
and other documents and certificates delivered in connection therewith as
the same may from time to time be amended, supplemented or otherwise
modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 2.11.
"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, executive order or governmental decree to
remain closed.
"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 or the Class B Notes.
"Class A Noteholders' Percentage" shall mean 90.44%, the
percentage equivalent of a fraction, rounded to the nearest one-hundredth
of a percent, the numerator of which is an amount equal to the sum of the
initial principal balances of the Class A-2 Notes and the Class A-3 Notes,
and the denominator of which is an amount equal to the sum of the initial
principal balances of the Class A-2 Notes, the Class A-3 Notes and the
Class B Notes.
"Class A Notes" shall mean the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, collectively.
"Class A-1 Final Payment Date" shall mean the August 1999
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 $200,000,000 aggregate
initial principal amount of 5.621% Class A-1 Asset Backed Notes issued by
the Trust pursuant to this Indenture, substantially in the form of Exhibit
A-1 to this Indenture.
"Class A-1 Rate" shall mean 5.621% per annum.
"Class A-2 Final Payment Date" shall mean the August 2004
Payment Date.
"Class A-2 Noteholder" shall mean the Person in whose name a
Class A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $250,000,000 aggregate
initial principal amount of 5.72% Class A-2 Asset Backed Notes issued by
the Trust pursuant to this Indenture, substantially in the form of Exhibit
A-2 to this Indenture.
"Class A-2 Rate" shall mean 5.72% per annum.
"Class A-3 Final Payment Date" shall mean the August 2004
Payment Date.
"Class A-3 Noteholder" shall mean the Person on whose name a
Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $322,056,000 aggregate
initial principal amount of 5.86% Class A-3 Asset Backed Notes issued by
the Trust pursuant to this Indenture, substantially in the form of Exhibit
A-3 to this Indenture.
"Class A-3 Rate" shall mean 5.86% per annum.
"Class B Final Payment Date" shall mean the August 2004
Payment Date.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered on the Note Register.
"Class B Noteholders' Percentage" shall mean 9.56%, the
percentage equivalent of a fraction, rounded to the nearest one-hundredth
of a percent, the numerator of which is the initial principal balance of
the Class B Notes, and the denominator of which is an amount equal to the
sum of the initial principal balances of the Class A-2 Notes, the Class A-3
Notes and the Class B Notes.
"Class B Notes" shall mean the $60,462,000 aggregate initial
principal amount of 6.07% Class B Asset Backed Notes issued by the Trust
pursuant to this Indenture, substantially in the form of Exhibit A-5 to
this Indenture.
"Class B Rate" shall mean 6.07% 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 August 20, 1998.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Treasury 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 August 1, 1998, by and among the Seller, the
Issuer, 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.
"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
and the Class B Final Payment Date, collectively, or any of them, as the
context requires.
"Final Scheduled Maturity Date" shall mean July 30, 2003.
"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.
"Interest Accrual Period" shall mean, with respect to any
Payment Date, (i) with respect to the Class A-1 Notes, the period from and
including the previous Payment Date (or, in the case of the first Payment
Date, the Closing Date) to but excluding such Payment Date and (ii) with
respect to the Class A-2 Notes, the Class A-3 Notes and the Class B Notes,
the period from and including the 15th day of the calendar month
immediately preceding such Payment Date (or, in the case of the first
Payment Date, the Closing Date), to but excluding the 15th day of the
calendar month in which such Payment Date occurs.
"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, plus interest on such excess to the extent permitted by law, at the
applicable Note Interest Rate for the related Interest Accrual Period.
"Issuer" shall mean MMCA Auto Owner Trust 1998-1, 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
Authorized Officers and delivered to the Indenture Trustee.
"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 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.
"Note Depository Agreement" shall mean the agreement dated
August 20, 1998, among the Issuer, the Indenture Trustee 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 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.
"Noteholders" shall mean the Class A-1 Noteholders, the
Class A-2 Noteholders, the Class A-3 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 and the Class B Notes, collectively.
"Officer's Certificate" shall mean a certificate signed by
any Authorized 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 Authorized 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 any 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 on September 15, 1998.
"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.
"Principal Carryover Shortfall" shall mean, as of the close
of business on any Payment Date, the excess of the Principal Distribution
Amount and any outstanding Principal Carryover Shortfall from the preceding
Payment Date over the amount in respect of principal that is actually
deposited in the Note Payment Account on such Payment Date.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Rating Agency" shall mean either S&P or Moody's, 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 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, the close of business on the day immediately preceding
such Payment Date or Redemption Date or, if Definitive Notes have been
issued pursuant to Section 2.13, the fifteenth (15th) day of the preceding
month.
"Redemption Date" shall mean the Payment Date specified by
the Servicer pursuant to Section 10.1(a) or (b), as applicable, on which
date the Indenture Trustee shall withdraw any amount remaining in the
Supplemental Reserve Account and the Reserve Account and deposit the
applicable amount thereof payable to the Notes in the Note Payment Account
first from the any amount remaining in the Supplemental Reserve Account and
then to the extent of any remaining shortfall from the Reserve Account.
"Redemption Price" shall mean an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest
thereon.
"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, 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 that certain Sale
and Servicing Agreement, dated as of August 1, 1998, by and among the
Issuer, the Seller and the Servicer, as from time to time amended,
supplemented or otherwise modified and in effect.
"Scheduled Principal" shall mean, with respect to any
Payment Date, the sum of (a) the sum of (i) collections received during the
related Collection Period of principal on Simple Interest Receivables,
including collections of principal attributable to the Last Scheduled
Payment of a Simple Interest Receivable that is a Final Payment Receivable,
and including any charges for Excess Wear and Tear and Excess Mileage but
excluding collections received during the related Collection Period of
principal on Simple Interest Receivables that would be attributable to a
Last Scheduled Payment pursuant to Section 4.3(a) except that a Last
Scheduled Payment Advance has been made with respect to such Last Scheduled
Payment, and (ii) Last Scheduled Payment Advances made during the related
Collection Period with respect to Simple Interest Receivables that are
Final Payment Receivables, (b) the principal portion of each Scheduled
Payment (including a Last Scheduled Payment on a Final Payment Receivable)
due on any Actuarial Receivable during the related Collection Period, (c)
the Principal Balance (without duplication of amounts taken into account
under (a) or (b)) of (i) each Receivable prepaid in full during the related
Collection Period and (ii) Receivables which became Defaulted Receivables
during the related Collection Period, (d) the Purchase Amount of each
Receivable that was repurchased by the Seller or purchased by the Servicer
during such Collection Period to the extent attributable to principal, (e)
the proceeds of any other sale of a Receivable (including pursuant to
Section 9.2 of the Trust Agreement), to the extent allocable to principal,
and (f) partial prepayments attributable to any refunded item included in
the Amount Financed, such as extended warranty protection plan costs or
physical damage, credit life or disability insurance premiums, or any
partial prepayment which causes a reduction in the Obligor's periodic
payment to be below the Scheduled Payment as of the Cutoff Date; provided,
however, that in calculating the Scheduled Principal, all payments and
proceeds (including Liquidation Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in Scheduled Principal in a
prior Collection Period (which shall be paid to the Seller or Servicer, as
applicable) will be excluded.
"Schedule of Receivables" shall mean the listing of
Receivables set forth in Schedule A (which Schedule may be in the form of
microfiche).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean MMCA Auto Receivables, Inc., a Delaware
corporation, 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.
"Successor Servicer" shall have the meaning specified in
Section 3.7(e).
"Total Required Payment" shall mean, on any Payment Date, the
Total Servicing Fee, the Accrued Note Interest and the Principal Distribution
Amount.
"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
(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 and the Class B Notes, together with the
Indenture Trustee's Certificates of Authentication, shall be substantially
the form set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit A-3 and Exhibit
A-4, 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 A-1 through
A-4 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 Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature
of individuals who were at any time Authorized 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 5.621% Class A-1 Asset Backed Notes for original
issue in an aggregate principal amount of $200,000,000, 5.72% Class A-2
Asset Backed Notes for original issue in an aggregate principal amount of
$250,000,000, 5.86% Class A-3 Asset Backed Notes for original issue in an
aggregate principal amount of $322,056,000 and 6.07% Class B Asset Backed
Notes for original issue in an aggregate principal amount of $60,462,000.
The aggregate principal amounts of 5.621% Class A-1 Asset Backed Notes,
5.72% Class A-2 Asset Backed Notes, 5.86% Class A-3 Asset Backed Notes and
6.07% Class B Asset Backed 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 as registered Notes in minimum
denominations of $1,000 and integral multiples 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, 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, 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.
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
instructions from the Servicer pursuant to Section 4.6(c) of the Sale and
Servicing Agreement, the Indenture Trustee will withdraw all 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 Note Payment Account, the
Accrued Note Interest for each Class of Notes;
(iii) to the Note Payment Account, the
Principal Distribution Amount;
(iv) to the Reserve Account, the amount, if
any, necessary to reinstate the balance in the Reserve Account up to
the Specified Reserve Balance;
(v) to the Supplemental Reserve Account,
all remaining Available Funds until the Supplemental Reserve
Amount is equal to the Maximum Supplemental Reserve Amount;
and
(vi) to the Certificate Distribution Account,
any remaining portion of 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, the Available Funds remaining after the
application of clauses (i) and (ii) above will be deposited in the Note
Payment Account and applied in accordance with Section 2.8(g).
(b) The principal of each Note shall be payable in
installments on each Payment Date in an aggregate amount (unless the Notes
have been accelerated in accordance with Section 5.2 following the
occurrence of an Event of Default) for all Classes of Notes equal to the
Principal Distribution Amount with respect to such Payment Date. On each
Payment Date, unless the Notes have been accelerated in accordance with
Section 5.2 following the occurrence of an Event of Default, the Issuer
shall cause to be paid all amounts on deposit in the Note Payment Account
with respect to the related Collection Period in the following order of
priority;
(i) to the Class A Noteholders, Accrued
Note Interest (and, if amounts on deposit in the Note Payment
Account are insufficient for such purpose, payments shall be made
to the Class A Noteholders pro rata in proportion to the Accrued
Note Interest for each Class of Class A Notes);
(ii) following payment in full of the
Accrued Note Interest payable to the Class A Noteholders, to the
Class B Noteholders, Accrued Note Interest until the Accrued Note
Interest payable to the Class B Noteholders has been paid in full;
(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, the Class A Noteholders'
Percentage of the remaining 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, the Class A Noteholders'
Percentage of the remaining Principal Distribution Amount in
reduction of principal until the principal amount of the Class A-3
Notes has been paid in full; and
(vi) following payment in full of the Class
A-1 Notes and payment of the Class A Noteholders' Percentage of the
Principal Distribution Amount, to the Class B Noteholders, the
Class B Noteholders' Percentage 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 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 and the Class B Notes shall accrue interest at the Class
A-1 Rate, the Class A-2 Rate, the Class A-3 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 will be calculated on the basis of
actual days elapsed and a 360-day year. Interest on the Class A-2 Notes,
the Class A-3 Notes and the Class B Notes will 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
pursuant to Section 10.1), 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 the 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) [Reserved.]
(g) 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 Servicer for amounts
due and unpaid in respect of Total Servicing Fees;
(iii) third, to Noteholders of each Class of
Class A Notes, Accrued Note Interest ratably in proportion to
Accrued Note Interest for each Class of Class A Notes, without
preference or priority of any kind, according to the amounts due
and payable on the Notes for interest;
(iv) fourth, to the Class B Noteholders,
Accrued Note Interest until the Accrued Note Interest payable to
the Class B Noteholders has been paid in full;
(v) fifth, to the Class A-1 Noteholders, the
Class A-2 Noteholders and the Class A-3 Noteholders, the
outstanding principal amount of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, respectively, pro rata in proportion
to the respective principal balances of each of such Classes in
reduction of principal until the principal amount of each of such
Classes has been paid in full;
(vi) sixth, to the Class B Noteholders, the
outstanding principal amount of the Class B Notes in reduction of
principal until the principal amount of the Class B Notes has been
paid in full; and
(vii) seventh, 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 an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
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 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. 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, if any, on 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 Supplemental 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 Supplemental 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, 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.
(vi) 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 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 B.
(b) On or before May 31, in each calendar year,
beginning in 1999, 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 May 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 and 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 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. In case 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 assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed
upon the Trust;
(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
Trust 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, within 120 days after the end of
each calendar year (commencing with the year 1999), an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(i) a review of the activities of the Issuer
during such year and of its performance under this Indenture has
been made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized
Officer's knowledge, based on such review, the Issuer has complied
with all conditions and covenants under this Indenture throughout
such year, or, if there has been a default in its compliance with
any such condition or covenant, specifying each such default known
to such Authorized 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 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, (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 of 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 and the Certificates.
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 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 or the Purchase Agreement 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.
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 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:
(A) either
(1) 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
(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(a)), 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 or 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;
(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, 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 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.
(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, 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 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)
default is made 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) default is made 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 such 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 such Notes and collect in the manner provided by law out
of the property of the Issuer or other obligor upon such 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, 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 Trustee pursuant to Section 6.7) 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 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
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 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 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 any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of
any Holder thereof or to authorize the Indenture Trustee to vote in respect
of the claim of any Noteholder 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.
(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 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
(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 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
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. 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.
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 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 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, if
any, on 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 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 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 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.
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) 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 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. 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 for the appointment of a successor
Indenture Trustee. If the Indenture Trustee fails to comply with Section
6.11, any Noteholder may petition any court of competent jurisdiction for
the removal of the Indenture Trustee and the appointment of 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) In case 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 in case
at that time any of the Notes shall not have been authenticated, to 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, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, 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
accept the resignation of or remove 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 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. 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).
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.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
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 Reports 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 Reports by Indenture Trustee. (a) If required by
TIA Section 313(a), within sixty (60) days after each March 31, beginning
with March 31, 1999, 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, the Reserve Account, the
Supplemental Reserve Account and the Yield Supplement Account. (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, for the benefit of the
Noteholders and the Certificateholders, the Trust Accounts, the Reserve
Account, the Supplemental Reserve Account and the Yield Supplement Account
as provided in Sections 4.1, 4.7, 4.10 and 5.1 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
Section 4.2 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, the Supplemental Reserve 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.
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, the Supplemental 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, the Supplemental 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, the Supplemental
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, the Reserve Account,
the Supplemental Reserve Account or the Yield Supplement Account 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, the Reserve Account, the Supplemental Reserve
Account or the Yield Supplement Account 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 for any funds on deposit in the Collection Account,
the Payahead Account, the Reserve Account, the Supplemental Reserve Account
or the Yield Supplement Account 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, (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) if such Notes shall have been declared due and
payable following an Event of Default, 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, the Reserve Account, the Supplemental Reserve Account or the
Yield Supplement, as the case may be, 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, release any remaining
portion of the Trust Estate that secured the Notes 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 an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven (7) days notice when requested by the Issuer to take
any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, except
in connection with any action contemplated by Section 8.4(b), as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of
the provisions of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. (a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee,
when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of
any property at any time subject to the lien of this Indenture, or
better to assure, convey and confirm unto the Indenture Trustee any
property subject or required to be subjected to the lien of this
Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to evidence the succession, in
compliance with the applicable provisions hereof, of another Person
to the Issuer, and the assumption by any such successor of the
covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer,
for the benefit of the Holders of the Notes, or to surrender any right
or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage
or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or
supplement any provision herein or in any supplemental indenture
that may be inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with respect
to matters or questions arising under this Indenture which will not
be inconsistent with other provisions of the Indenture;
(vi) to evidence and provide for the
acceptance of the appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of the provisions
of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be necessary
to effect the qualification of this Indenture under the TIA or
under any similar federal statute hereafter enacted and to add to
this Indenture such other provisions as may be expressly required
by the TIA;
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.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, with the consent of not less than a
majority of the principal amount of the Notes Outstanding and with prior
notice to the Rating Agencies, 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 of 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 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.
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 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; 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.
It shall not be necessary for any Act of Noteholders under
this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled
to receive and, subject to Sections 6.1 and 6.2, shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and
that all conditions precedent to the execution and delivery of such
supplemental indenture have been satisfied. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer
and the Holders of the Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the Trust
Indenture Act as then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. (a) The Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer
pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on any
Payment Date on which the Servicer exercises its option to purchase the
assets of the Issuer pursuant to said Section 9.1(a), and the amount paid
by the Servicer shall be treated as collections of Receivables and applied
to pay the unpaid principal amount of the Notes plus accrued and unpaid
interest thereon and the Certificate Balance. The Servicer or the Issuer
shall furnish the Rating Agencies and the Noteholders notice of such
redemption. If the Notes are to be redeemed pursuant to this Section
10.1(a), the Servicer or the Issuer shall furnish notice of such election
to the Indenture Trustee not later than twenty (20) days prior to the
Redemption Date and the Issuer shall deposit by 10:00 A.M. (New York City
time) on the Redemption Date with the Indenture Trustee in the Note Payment
Account the Redemption Price of the Notes to be redeemed, whereupon all
such Notes shall be due and payable on the Redemption Date.
(b) In the event that the assets of the Issuer are sold
pursuant to Section 9.2 of the Trust Agreement, all amounts on deposit in
the Note Payment Account shall be paid to the Noteholders up to the unpaid
principal amount of the Notes and all accrued and unpaid interest thereon.
If the amounts are to be paid to Noteholders pursuant to this Section
10.1(b), the Servicer or the Issuer shall, to the extent practicable,
furnish notice of such event to the Indenture Trustee not later than twenty
(20) days prior to the Redemption Date, whereupon all such amounts shall be
payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, or by facsimile mailed or transmitted
promptly following receipt of notice from the Issuer or Servicer pursuant
to Section 10.1(a), but not later than ten (10) days prior to the
applicable Redemption Date, to each Holder of Notes as of the close of
business on the Record Date preceding the applicable Redemption Date, at
such Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which shall
be the office or agency of the Issuer to be maintained as
provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not
impair or affect the validity
of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section
10.2 (in the case of redemption pursuant to Section 10.1(a)), on the
Redemption Date become due and payable at the Redemption Price and (unless
the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date
to which accrued interest is calculated for purposes of calculating the
Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to
take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting
the applicable requirements of this Section 11.1, except that, in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(D) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or
other property or securities with the Indenture Trustee that is to be made
the basis for the release of any property or securities subject to the lien
of this Indenture, the Issuer shall, in addition to any obligation imposed
in Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety (90)
days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to
furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall also
deliver to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the property
or securities to be so deposited and of all other such property or
securities made the basis of any such withdrawal or release since
the commencement of the then-current fiscal year of the Issuer, as
set forth in the certificates delivered pursuant to clause (i)
above and this clause (ii), is ten percent (10%) or more of the
principal amount of the Notes Outstanding, but such a certificate
need not be furnished with respect to any property or securities so
deposited, if the fair value thereof to the Issuer as set forth in
the related Officer's Certificate is less than $25,000 or less than
one percent (1%) of the principal amount of the Notes Outstanding.
(iii) Whenever any property or securities
are to be released from the lien of this Indenture, the Issuer
shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety (90)
days of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture
in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to
furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Issuer shall also
furnish to the Indenture Trustee an Independent Certificate as to
the same matters if the fair value of the property or securities
and of all other property, other than property as contemplated by
clause (v) below or securities released from the lien of this
Indenture since the commencement of the then-current calendar year,
as set forth in the certificates required by clause (iii) above and
this clause (iv), equals ten percent (10%) or more of the principal
amount of the Notes Outstanding, but such certificate need not be
furnished in the case of any release of property or securities if
the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent (1%) of
the principal amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any
other provisions of this Section 11.1, the Issuer may, without
compliance with the requirements of the other provisions of this
Section 11.1, (A) collect, liquidate, sell or otherwise dispose of
Receivables and Financed Vehicles as and to the extent permitted or
required by the Basic Documents and (B) make cash payments out of
the Trust Accounts as and to the extent permitted or required by
the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture
Trustee. (a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
say such Person may certify or give an opinion as to such matters in one or
several documents.
(b) Any certificate or opinion of an Authorized
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 an Authorized 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 Authorized 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 1998-1, in care of Wilmington
Trust Company, 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 and (ii) in case of S&P, at the following
address: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of
Asset Backed Surveillance Department.
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, 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.
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. 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 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.
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.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective
officers, thereunto duly authorized and duly attested, all as of the day
and year first above written.
MMCA AUTO OWNER TRUST 1998-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxx Xxxxxx
______________________________
Name: Xxxxx Xxxxxx
Title: Administrative Account
Manager
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxx Xxxxx Xxxxx
_____________________________
Name: Xxxxx Xxxxx Xxxxx
Title: Trust Officer
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared ________________,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said ____________________________________, a _______________________________
of Wilmington Trust Company, an Owner Trustee of MMCA AUTO OWNER TRUST 1998-1,
a Delaware business trust, for the purpose and consideration therein
expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
August, 1998.
_____________________________
Notary Public in and for the
State of Delaware.
[Seal]
My commission expires:
__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared ________________,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of
BANK OF TOKYO - MITSUBISHI TRUST COMPANY, a New York banking corporation,
and that such person executed the same as the act of said corporation for
the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
August, 1998.
______________________________
Notary Public in and for the
State of New York.
[Seal]
My commission expires:
__________________________
SCHEDULE A
[Provided to the Indenture Trustee at the Closing]
SCHEDULE I
List of Permitted Investments
Account(s) Permitted Investments
---------- ---------------------
Reserve Account Time Deposits or Certificates of Deposit of Bank of
Tokyo-Mitsubishi Trust Company or its Affiliates
Supplemental Reserve Time Deposits or Certificates of Deposit of Bank of
Tokyo-Mitsubishi Trust Company or its Affiliates
Collection Account, Time deposits of Bank of Tokyo-
Yield Supplement Mitsubishi Trust Company or its Affiliates
Account, Payahead
Account
EXHIBIT A-1
Form of Class A-1 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $200,000,000
No. R-1 CUSIP NO. 553 083 AH9
MMCA AUTO OWNER TRUST 1998-1
5.621% CLASS A-1 ASSET BACKED NOTES
MMCA Auto Owner Trust 1998-1, 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 TWO HUNDRED 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 August 1, 1998 (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 August 1999 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 the Closing
Date) to but excluding such Payment Date. Interest will be computed on the
basis of actual 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 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 Authorized Officer, as of the
date set forth below.
Date: August 20, 1998
MMCA AUTO OWNER TRUST 1998-1,
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: August 20, 1998
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
This Class A-1 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its 5.621% Class A-1 Asset Backed Notes,
which, together with the 5.72% Class A-2 Asset-Backed Notes, the 5.86%
Class A-3 Asset-Backed Notes and the 6.07% 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.
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 September 15, 1998.
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
whole or in part, 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 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.
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 the Outstanding Amount of all Notes,
voting as a group. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class A-1 Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Holder and
upon all future Holders of this Class A-1 Note and of any Class A-1 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-1 Note. The Indenture also permits the Indenture Trustee to
amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-1 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-1 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and
all liabilities, obligations and undertakings contained in the Indenture or
in this Class A-1 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto:
__________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: _______________________ _______________________________ */
Signature Guaranteed
________________________________ */
______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-2
Form of Class A-2 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R- [ ] CUSIP XX. 000 000 XX0
MMCA AUTO OWNER TRUST 1998-1
5.72% CLASS A-2 ASSET BACKED NOTES
MMCA Auto Owner Trust 1998-1, 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 [ ] 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 August 1, 1998 (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 2004 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 the
rate per annum shown above on each Payment Date until the principal of this
Class A-2 Note is paid or made available for payment, on the principal
amount of this Class A-2 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-2 Note will accrue for each Payment
Date from and including the 15th day of the calendar month preceding each
Payment Date (or, in the case of the initial Payment Date or if no interest
has been paid, from the Closing Date) to but excluding the 15th day of the
following calendar month. 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-2 Note shall be paid in the manner specified on the reverse
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 Authorized Officer, as of the
date set forth below.
Date: August 20, 1998
MMCA AUTO OWNER TRUST 1998-1,
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: August 20, 1998
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
This Class A-2 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its 5.72% Class A-2 Asset Backed Notes,
which, together with the 5.621% Class A-1 Asset-Backed Notes, the 5.86%
Class A-3 Asset-Backed Notes and the 6.07% 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.
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 September 15, 1998.
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
whole or in part, 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 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.
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 the Outstanding Amount of all Notes,
voting as a group. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class A-2 Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Holder and
upon all future Holders of this Class A-2 Note and of any Class A-2 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-2 Note. The Indenture also permits the Indenture Trustee to
amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-2 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-2 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and
all liabilities, obligations and undertakings contained in the Indenture or
in this Class A-2 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
____________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto:
__________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: __________________________ _____________________________ */
Signature Guaranteed
_____________________________ */
__________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-3
Form of Class A-3 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R- [ ] CUSIP XX. 000 000 XX0
MMCA AUTO OWNER TRUST 1998-1
5.86% CLASS A-3 ASSET BACKED NOTES
MMCA Auto Owner Trust 1998-1, 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 [ ] 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 August 1, 1998 (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 August 2004 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 the
rate per annum shown above on each Payment Date until the principal of this
Class A-3 Note is paid or made available for payment, on the principal
amount of this Class A-3 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-3 Note will accrue for each Payment
Date from and including the 15th day of the calendar month preceding each
Payment Date (or, in the case of the initial Payment Date or if no interest
has been paid, from the Closing Date) to but excluding the 15th day of the
following calendar month. 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-3 Note shall be paid in the manner specified on the reverse
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 Authorized Officer, as of the
date set forth below.
Date: August 20, 1998
MMCA AUTO OWNER TRUST 1998-1,
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: August 20, 1998
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
This Class A-3 Note is one of a duly authorized issue of
Notes of the Issuer, designated as its 5.86% Class A-3 Asset Backed Notes,
which, together with the 5.621% Class A-1 Asset-Backed Notes, the 5.72%
Class A-2 Asset-Backed Notes and the 6.07% 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.
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 September 15, 1998.
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
whole or in part, 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 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.
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 the Outstanding Amount of all Notes,
voting as a group. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class A-3 Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Holder and
upon all future Holders of this Class A-3 Note and of any Class A-3 Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-3 Note. The Indenture also permits the Indenture Trustee to
amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class A-3 Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class A-3 Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and
all liabilities, obligations and undertakings contained in the Indenture or
in this Class A-3 Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
______________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto:
__________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: __________________________ ____________________________ */
Signature Guaranteed
___________________________ */
___________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT A-4
Form of Class B Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $553 083 AL0
No. R-1 CUSIP NO. 553 083 AL0
MMCA AUTO OWNER TRUST 1998-1
6.07% CLASS B ASSET BACKED NOTES
MMCA Auto Owner Trust 1998-1, 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 MILLION FOUR HUNDRED SIXTY
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 B Notes pursuant to Section 2.8 of the Indenture dated as of
August 1, 1998 (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
August 2004 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 day of the calendar month preceding each
Payment Date (or, in the case of the initial Payment Date or if no interest
has been paid, from the Closing Date) to but excluding the 15th day of the
following calendar month. 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 Authorized Officer, as of the
date set forth below.
Date: August 20, 1998
MMCA AUTO OWNER TRUST 1998-1,
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: August 20, 1998
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
This Class B Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 6.07% Class B Asset Backed Notes, which,
together with the 5.621% Class A-1 Asset-Backed Notes, the 5.72% Class A-2
Asset-Backed Notes and the 5.86% Class A-3 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.
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 September 15, 1998.
Payment of principal of and interest on the Class B Notes is subordinated
to the payment of principal of and interest on the Class A Notes in the
manner and to the extent set forth in the Indenture.
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 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. Payment of principal of and interest on
the Class B Notes following such declaration is subordinate to the payment
of principal of and interest on the Class A Notes in the manner and to the
extent set forth in 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
whole or in part, 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 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.
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 Outstanding Amount of all Notes,
voting as a group. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class B Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Holder and
upon all future Holders of this Class B Note and of any Class B Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Class B Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of Holders of the Notes issued thereunder.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Class B Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture, and no provision of
this Note or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Bank of Tokyo-Mitsubishi
Trust Company, in its individual capacity, Wilmington Trust Company, in its
individual capacity, any owner of a beneficial interest in the Issuer, or
any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable
for, nor shall recourse be had to any of them for, the payment of principal
or of interest on this Class B Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note, by his acceptance hereof, agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and
all liabilities, obligations and undertakings contained in the Indenture or
in this Class B Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto:
__________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: ___________________________ _____________________________ */
Signature Guaranteed
_____________________________ */
_______________________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar.
EXHIBIT B
Form of Opinion of Counsel
Pursuant to Section 3.6(a)
August 20, 1998
To the Addressees Indicated
on Schedule A hereto
Re: MMCA Auto Owner Trust 1998-1
Ladies and Gentlemen:
We have acted as special counsel to Mitsubishi Motors Credit
of America, Inc., a Delaware corporation ("MMCA"), and MMCA Auto
Receivables, Inc., a Delaware corporation ("MARI"), in connection with the
transactions contemplated by (i) the Purchase Agreement, dated as of August
1, 1998 (the "Purchase Agreement"), between MMCA and MARI, (ii) the Sale
and Servicing Agreement, dated as of August 1, 1998 (the "Sale and
Servicing Agreement"), by and among MARI, as seller, MMCA, as servicer, and
MMCA Auto Owner Trust 1998-1, a Delaware business trust (the "Trust"), as
issuer, (iii) the Indenture, dated as of August 1, 1998 (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
August 1, 1998 (the "Trust Agreement"), between MARI and Wilmington Trust
Company, as owner trustee on behalf of the Trust (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 Assignment dated
as of August 20, 1998 related thereto (the "Assignment"), MMCA proposes to
sell to MARI, and MARI proposes to purchase from MMCA, among other things,
certain motor vehicle retail installment sale contracts (collectively, the
"Receivables") secured by new and used automobiles and light- and
medium-duty trucks (collectively, the "Financed Vehicles"), certain monies
due or received thereunder on or 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, MARI proposes
to sell to the Trust all right, title and interest of MARI in, to and under
the Receivables, certain monies due or received thereunder on and after the
Cutoff Date, certain other property related to the Receivables and all
proceeds thereof. The Trust will issue (i) $200,000,000 aggregate principal
amount of 5.621% Class A-1 Asset Backed Notes, $250,000,000 aggregate
principal amount of 5.72% Class A-2 Asset Backed Notes, $322,056,000
aggregate principal amount of 5.86% Class A-3 Asset Backed Notes and
$60,462,000 aggregate principal amount of 6.07% Class B Asset Backed Notes
(collectively, the "Notes") pursuant to the Indenture for sale to the
several underwriters named in the Underwriting Agreement, dated August 13,
1998, between MARI and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), as representative of the several underwriters; and (ii)
the Asset Backed Certificates (collectively, the "Certificates") pursuant
to the Trust Agreement for issuance to MARI.
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 MARI 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 Assignment;
(b) a Certificate of MARI, dated the date hereof, a
copy of which is attached as Exhibit A hereto (the "MARI Certificate");
(c) an unfiled, but signed copy of a financing
statement naming MMCA Auto Receivables, Inc. as debtor and MMCA Auto Owner
Trust 1998-1 as secured party, 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 statement, the "Financing Statement");
(d) the report of Lexis Document Services dated
August 12, 1998, as to financing statements naming MMCA Auto Receivables,
Inc. as debtor and on file in the office of the Secretary of State of the
State of California as of an effective date of August 7, 1998 (the "Search
Report");
(e) forms of motor vehicle retail installment sale
contracts (the "Form Contracts") attached as Annex A to the MARI
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 Owner Trustee 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 Owner Trustee 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,
California and Delaware.
Members of this Firm are admitted to practice in the States
of California, Delaware and New York. 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:
(1) Each Receivable is a motor vehicle retail installment
sale contract that constitutes "chattel paper" as defined in Section 9-105
of the UCC.
(2) The provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Owner Trustee, a valid security
interest (as such term is defined in Section 1-201 of the UCC) in MARI's
rights in the Receivables and proceeds thereof, which security interest if
characterized as a transfer for security will secure payment of the Notes.
(3) The Financing Statement is in appropriate form for
filing in the Filing Office under the UCC. Upon the filing of the Financing
Statement in the Filing Office, the security interest in favor of the Owner
Trustee in the Receivables and proceeds thereof will be perfected, and no
other security interest of any other creditor of MARI's will be equal or
prior to the security interest of the Owner Trustee in the Receivables and
proceeds thereof.
(4) 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
MARI has sufficient rights in the Receivables for the security interest of
the Owner Trustee to attach, and that the Owner Trustee 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
MARI's or the Owner Trustee's rights in, or title to, any Receivables;
(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;
(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 MARI or the Owner Trustee 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 Owner Trustee 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 Owner Trustee 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 Owner
Trustee's or Indenture Trustee's rights in and to any property which
secures any Receivable;
(j) we have assumed that MARI's chief executive
office is and will be located at the address set forth in the MARI
Certificate;
(k) we express no opinion with respect to the
priority of the interest of the Owner Trustee 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 Owner Trustee; ( 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 MARI was located in such
jurisdiction within four months prior to the date of the perfection of the
security interest of the Owner Trustee; ( 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 MARI 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 MARI 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;
(l) we have assumed that no financing statement
naming MARI as debtor was filed in the Filing Office between the effective
date of the Search Report and the date of the filing of the Financing
Statement in such Filing Office;
(m) 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;
(n) 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
(o) 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 Owner Trustee 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), (k)(iv) and (l) of our qualifications set forth above, we have
relied upon representations and warranties of MARI as to the assumptions
therein.
This opinion is being furnished only to you and is solely
for your benefit 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
MMCA Auto Receivables, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
MMCA Auto Owner Trust 1998-1
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 Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, as
Representative of the several
Underwriters
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's,
a Division of The XxXxxx-Xxxx Companies
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Exhibit A
MMCA AUTO RECEIVABLES, INC.
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of MMCA AUTO
RECEIVABLES, INC. (the "Company"), does hereby certify as follows:
(1) No financing statements or other filings have been filed
naming the Company as debtor or seller in any State of the United States of
America to perfect a sale, transfer or assignment of or lien, encumbrance,
security interest or other interest in, or which otherwise pertains to, the
Receivables.
(2) At all times since the incorporation of the Company, the
Company has had one place of business and it is and has been located in
Cypress, California.
(3) At all times since the incorporation of the Company and
on the date hereof, the Company has had a mailing address of X.X. Xxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000-0000.
(4) Attached hereto as Annex A are forms of motor vehicle
retail installment sales contracts used to create the Receivables (the
"Form Contracts"), and each Receivable is substantially in the form of a
Form Contract.
Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Sale and Servicing
Agreement, dated as of August 1, 1998, by and among the Company, Mitsubishi
Motors Credit of America, Inc., as Servicer, and MMCA Auto Owner Trust
1998-1, as Issuer, and accepted and agreed to by Bank of Tokyo - Mitsubishi
Trust Company, as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand this 20th day of
August, 1998.
MMCA AUTO RECEIVABLES, INC.
By:____________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Treasurer
Annex A
[FORMS OF RETAIL INSTALLMENT SALES CONTRACT]
