ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 1,
2001 (as the same may be amended, supplemented or otherwise modified from
time to time and in effect, this "Agreement"), is by and among MMCA AUTO
OWNER TRUST 2001-3, a Delaware business trust (the "Issuer"), MITSUBISHI
MOTORS CREDIT OF AMERICA, INC., a Delaware corporation, as administrator
(the "Administrator"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New
York banking corporation, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing [ ]% Class A-1 Asset
Backed Notes, Floating Rate Class A-2 Asset Backed Notes, Floating Rate
Class A-3 Asset Backed Notes, Floating Rate Class A-4 Asset Backed Notes
and [ ]% Class B Asset Backed Notes (collectively, the "Notes") pursuant to
the Indenture, dated as of October 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"),
between the Issuer and the Indenture Trustee (terms not defined in this
Agreement shall have the meaning set forth in, or incorporated by reference
into, the Sale and Servicing Agreement or, if not defined therein, in the
Indenture or in the amended and restated trust agreement, dated as of
October 1, 1999, between the Administrator, as beneficiary, and Chase
Manhattan Bank USA, N.A. (formerly known as Chase Manhattan Bank Delaware),
a national banking association, as trustee);
WHEREAS, the Issuer has entered into certain agreements
in connection with the issuance of the Notes and of certain beneficial
interests in the Issuer, including (i) a Sale and Servicing Agreement,
dated as of October 1, 2001 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Sale and Servicing Agreement"), among
the Issuer, Mitsubishi Motors Credit of America, Inc., as servicer, and
MMCA Auto Receivables Trust, as seller (the "Seller"), (ii) a Letter of
Representations, dated [October 12], 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Note Depository
Agreement"), among the Issuer, the Administrator, the Indenture Trustee and
The Depository Trust Company ("DTC") relating to the Notes, (iii) the
Interest Rate Swap Agreements and (iv) the Indenture (the Sale and
Servicing Agreement, the Note Depository Agreement, the Interest Rate Swap
Agreements and the Indenture being referred to hereinafter collectively as
the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer
and the Owner Trustee are required to perform certain duties in connection
with (a) the Notes and the collateral therefor pledged pursuant to the
Indenture (the "Collateral") and (b) the beneficial interests in the Issuer
(the registered holders of such interests being referred to herein as the
"Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have
the Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide
the services required hereby and is willing to perform such services for
the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Duties of the Administrator.
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(a) Duties with Respect to the Related Agreements.
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(i) The Administrator agrees to perform all its duties
as Administrator under the Note Depository Agreement. In
addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer or the Owner
Trustee under the Related Agreements. The Administrator shall
monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the
Issuer's or the Owner Trustee's duties under the Related
Agreements. The Administrator shall prepare for execution by
the Issuer or the Owner Trustee, or shall cause the
preparation by other appropriate persons of, all such
documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Related
Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the
duty of the Issuer or the Owner Trustee to take pursuant to
the Indenture including, without limitation, such of the
foregoing as are required with respect to the following
matters under the Indenture (references are to sections of
the Indenture):
(A) causing the Note Register to be kept and notifying
the Indenture Trustee of any appointment of a new Note
Registrar and the location, or change in location, of the
Note Register (Section 2.5);
(B) notifying the Noteholders of the final principal
payment on their Notes (Section 2.8(e));
(C) preparing or obtaining the documents and instruments
required for authentication of the Notes and delivering
the same to the Indenture Trustee (Section 2.2);
(D) preparing, obtaining or filing of the instruments,
opinions and certificates and other documents required
for the release of collateral (Section 2.10);
(E) maintaining an office in the Borough of Manhattan,
City of New York, for registration of transfer or
exchange of the Notes (Section 3.2);
(F) causing newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified
in the Indenture regarding funds held in trust (Section
3.3);
(G) directing the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture
Trustee (Section 3.3);
(H) obtaining and preserving the Issuer's qualification
to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.4);
(I) preparing all supplements and amendments to the
Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and taking such other action as is necessary
or advisable to protect the Trust Estate (Section 3.5);
(J) delivering the Opinion of Counsel on the Closing Date
and annually delivering Opinions of Counsel as to the
Trust Estate, and annually delivering the Officer's
Certificate and certain other statements as to compliance
with the Indenture (Sections 3.6 and 3.9);
(K) identifying to the Indenture Trustee in an Officer's
Certificate a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section
3.7(b));
(L) notifying the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination under the
Sale and Servicing Agreement and, if such Event of
Servicing Termination arises from the failure of the
Servicer to perform any of its duties under the Sale and
Servicing Agreement with respect to the Receivables,
taking all reasonable steps available to remedy such
failure (Section 3.7(d));
(M) causing the Servicer to comply with Sections 3.7,
3.9, 3.10, 3.11, 3.12, 3.13, 3.14, and 4.9 and Article
VII of the Sale and Servicing Agreement (Section 3.14);
(N) preparing and obtaining documents and instruments
required for the conveyance or transfer of any of the
Issuer's properties or assets (Section 3.10(b));
(O) delivering written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under
the Indenture and each default by the Issuer, the
Servicer or the Seller under the Sale and Servicing
Agreement, by the Seller or Mitsubishi Motors Credit of
America, Inc. under the Purchase Agreement, or by any
Swap Counterparty under the Interest Rate Swap Agreements
(Section 3.19);
(P) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture and preparing
an Officer's Certificate and obtaining the Opinion of
Counsel and the Independent Certificate relating thereto
(Section 4.1);
(Q) delivering to the Noteholders and the Note Owners any
Officer's Certificate received from the Issuer regarding
the default in the observance or performance of any
material covenant or agreement of the Issuer made in the
Indenture or the breach of any representation or warranty
of the Issuer made in the Indenture or in any certificate
or other writing delivered pursuant to the Indenture
(Sections 5.1 and 7.4(b));
(R) complying with any written direction of the Indenture
Trustee with respect to the sale of the Trust Estate at
one or more public or private sales called and conducted
in any manner permitted by law if an Event of Default
shall have occurred and be continuing (Section 5.4);
(S) preparing and delivering notice to the Noteholders of
the removal of the Indenture Trustee and appointing a
successor Indenture Trustee (Section 6.8);
(T) preparing any written instruments required to confirm
more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in
connection with the resignation or removal of any
co-trustee or separate trustee (Section 6.10);
(U) furnishing the Indenture Trustee with the names and
addresses of the Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section
7.1);
(V) preparing and, after execution by the Issuer, filing
with the Securities and Exchange Commission (the
"Commission"), any applicable state agencies and the
Indenture Trustee, documents required to be filed on a
periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the
Commission and any applicable state agencies and
transmitting such summaries, as necessary, to the
Noteholders (Section 7.3);
(W) delivering to the Noteholders of Officer's
Certificates and reports, if any, delivered to the
Indenture Trustee pursuant to Section 3.10 and 3.11 of
the Sale and Servicing Agreement (Section 7.4);
(X) opening one or more accounts in the Issuer's name,
preparing and delivering Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.2
and 8.3);
(Y) preparing an Issuer Request and Officer's Certificate
and obtaining an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust
Estate (Sections 8.4 and 8.5);
(Z) preparing Issuer Orders and obtaining Opinions of
Counsel with respect to the execution of supplemental
indentures and mailing to the Noteholders and to the
Rating Agencies notices with respect to such supplemental
indentures (Sections 9.1, 9.2 and 9.3);
(AA) executing and delivering new Notes conforming to any
supplemental indenture (Section 9.6);
(BB) notifying the Noteholders and the Rating Agencies of
redemption of the Notes or causing the Indenture Trustee
to provide such notification (Section 10.1);
(CC) preparing and delivering all Officer's Certificates
and Opinions of Counsel and obtaining any Independent
Certificates with respect to any requests by the Issuer
to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(DD) preparing and delivering Officer's Certificates and
obtaining any Independent Certificates necessary for the
release of property from the lien of the Indenture
(Section 11.1(b));
(EE) notifying the Rating Agencies, upon the failure of
the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.4 of the
Indenture (Section 11.4);
(FF) preparing and delivering to the Noteholders and the
Indenture Trustee any agreements with respect to
alternate payment and notice provisions (Section 11.6);
(GG) recording the Indenture, if applicable (Section
11.15); and
(HH) preparing Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation
shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including
the reasonable compensation, expenses and disbursements
of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its
negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for,
and hold them harmless against, any losses, liability or
expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance
or administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of
their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee (in its individual and
trust capacities) and its agents for, and hold them
harmless against, any losses, liability or expense
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the
Trust Agreement, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or performance
of any of their powers or duties under the Trust
Agreement.
(b) Duties with Respect to the Interest Rate Swap Agreements.
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(i) Promptly following the early termination of an
Interest Rate Swap Agreement due to a Termination Event or an
Event of Default (as such terms are defined in the related
Interest Rate Swap Agreement) (unless the Indenture Trustee
is selling or liquidating the Trust Estate), the
Administrator agrees to use reasonable efforts to cause the
Issuer to enter into a replacement interest rate swap
agreement on terms similar to those of such Interest Rate
Swap Agreement with an eligible swap counterparty. If and to
the extent any Swap Termination Payments that are received
from a Swap Counterparty are to be applied as an initial
payment to a replacement Swap Counterparty, the Administrator
shall direct the Indenture Trustee to retain such amounts and
shall provide the Indenture Trustee with written instructions
regarding the application and payment of such amounts.
(ii) If a Swap Counterparty is required to collateralize
any Interest Rate Swap transaction, the Administrator shall
send written instructions to the Indenture Trustee to
establish individual collateral accounts and to hold any
securities deposited therein in trust and invest any cash
amounts therein in accordance with the provisions of the
Interest Rate Swap Agreement.
(iii) The Administrator shall notify the Indenture
Trustee of the occurrence or existence of a default, event of
default or similar condition or event with respect to any
credit support provider for a Swap Counterparty.
(iv) The Administrator shall notify the Swap
Counterparties of any proposed amendment or supplement to
this Agreement or to any of the Indenture, the Purchase
Agreement, the Sale and Servicing Agreement or the Trust
Agreement. If such proposed amendment or supplement would
adversely affect any of the Swap Counterparties' rights or
obligations under the Interest Rate Swap Agreements or modify
the obligations of, or impair the ability of the Issuer to
fully perform any of its obligations under, the Interest Rate
Swap Agreements, the Administrator shall obtain the consent
of the Swap Counterparties prior to the adoption of such
amendment or supplement, provided, the Swap Counterparties'
consent to any such amendment or supplement shall not be
unreasonably withheld, and provided further, a Swap
Counterparty's consent will be deemed to have been given if
the Swap Counterparty does not object in writing within ten
Business Days of receipt of a written request for such
consent and in accordance with the terms of the Interest Rate
Swap Agreement.
(v) At least five days prior to the effective date of
any proposed amendment or supplement to any Interest Rate
Swap Agreement, the Administrator shall provide the Rating
Agencies with a copy of the amendment or supplement. Unless
the amendment or supplement clarifies any term or provision,
corrects any inconsistency, cures any ambiguity, or corrects
any typographical error in the Interest Rate Swap Agreement,
an amendment or supplement to the Interest Rate Swap
Agreement will be effective only after satisfaction of the
Rating Agency Condition.
(c) Additional Duties.
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(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the preparation
by other appropriate persons of, and shall execute on behalf
of the Issuer or the Owner Trustee, all such documents,
reports, filings, instruments, certificates and opinions that
it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements
or Section 5.5 of the Trust Agreement, and at the request of
the Owner Trustee shall take all appropriate action that it
is the duty of the Issuer or the Owner Trustee to take
pursuant to the Related Agreements. In furtherance thereof,
the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator and to each
successor Administrator appointed pursuant to the terms
hereof, one or more powers of attorney substantially in the
form of Exhibit A hereto, appointing the Administrator the
attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the
Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5 of this
Agreement, and in accordance with the directions of the Owner
Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in
connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the
Administrator. Such responsibilities shall include obtaining
and maintaining any licenses required to be obtained or
maintained by the Issuer under the Pennsylvania Motor Vehicle
Sales Finance Act. In addition, the Administrator shall
promptly notify the Indenture Trustee and the Owner Trustee
in writing of any amendment to the Pennsylvania Motor Vehicle
Sales Finance Act that would affect the duties or obligations
of the Indenture Trustee or the Owner Trustee under any Basic
Document and shall assist the Indenture Trustee or the Owner
Trustee in obtaining and maintaining any licenses required to
be obtained or maintained by the Indenture Trustee or the
Owner Trustee thereunder. In connection therewith, the
Administrator shall cause the Seller to pay all fees and
expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall
be responsible for promptly notifying the Owner Trustee in
the event that any withholding tax is imposed on the Issuer's
payments (or allocations of income) to a Certificateholder as
contemplated in Section 5.2(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall
be responsible for performing the duties of the Issuer or the
Owner Trustee set forth in Section 5.2(b) and (c), Section
5.5(a), (b), (c), (d) and (e), the second paragraph of
Section 5.5 and Section 5.6(a) of the Trust Agreement with
respect to, among other things, accounting and reports to the
Certificateholders.
(iv) The Administrator will provide, prior to [January
15, 2002], a certificate of a Responsible Officer in form and
substance satisfactory to the Owner Trustee as to whether any
tax withholding is then required and, if required, the
procedures to be followed with respect thereto to comply with
the requirements of the Code. The Administrator shall be
required to update the letter in each instance that any
additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be
required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the
Administrator under the Trust Agreement or any other Related
Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions or otherwise deal with any of its
affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(d) Non-Ministerial Matters.
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(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose
of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in
connection with the collection of the Receivables or
Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or Successor Servicers, or the consent to
the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture;
and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (x) make any payments to the Noteholders under the
Related Agreements or (y) take any other action that the
Issuer directs the Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books
of account and records shall be accessible for inspection by the Issuer,
the Owner Trustee and the Indenture Trustee at any time during normal
business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for
its expenses related thereto, the Administrator shall be entitled to $500
per month which shall be solely an obligation of the Seller.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably
request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed
to impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator
for any other person or entity even though such person or entity may engage
in business activities similar to those of the Issuer, the Owner Trustee or
the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may resign
its duties hereunder by providing the Issuer with at least sixty (60) days'
prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least
sixty (60) days' prior written notice; provided, however, that in the event
the Servicer is removed as the Servicer pursuant to Section 8.1 of the Sale
and Servicing Agreement upon the occurrence of a Event of Servicing
Termination, the Servicer shall be simultaneously removed as Administrator
hereunder.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such
default, shall not cure such default within ten (10) days
(or, it such default cannot be cured in such time, shall not
give within ten (10) days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall
not have been vacated within sixty (60) days, in respect of
the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its
property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, shall
consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any
such official of any substantial part of its property, shall
make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section 8 shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven (7)
days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until a successor Administrator shall have been
appointed by the Issuer and such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as
the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
Successor Servicer shall automatically become the Administrator under this
Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a),
the resignation of the Administrator pursuant to Section 8(b) or the
removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to this date of such termination, resignation or
removal. The Administrator shall forthwith upon such termination pursuant
to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation of the Administrator pursuant to Section 8(b) or
the removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
MMCA Auto Owner Trust 2001-3
c/o Wilmington Trust Company
Attention: Corporate Trust Administration Department
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
Attention: Executive Vice President and Treasurer
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
Attention: Corporate Trust Administration
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid,
or hand-delivered to the address of such party as provided above.
11. Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Issuer, the Administrator and
the Indenture Trustee, with the written consent of the Owner Trustee and
the consent of the Certificateholder (which consent shall not be
unreasonably withheld) but without the consent of the Noteholders, for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement in order to: (i) cure
any ambiguity, to revise, correct or supplement any provisions herein, (ii)
enable the transfer to the Issuer of all or any portion of the Receivables
to be derecognized under GAAP, (iii) enable the transfer to the Issuer of
all or any portion of the Receivables to be derecognized by MMCA under
GAAP, (iv) enable the Issuer to avoid becoming a member of the Servicer's
consolidated group under GAAP or (v) enable the Transferor or any Affiliate
of the Transferor or any of their Affiliates to otherwise comply with or
obtain more favorable treatment under any law or regulation or any
accounting rule or principle; provided that such amendment will not, as set
forth in an Opinion of Counsel satisfactory to the Indenture Trustee and
the Owner Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder; provided, further, that no such amendment
shall be inconsistent with the derecognition of the Receivables by MMCA
under GAAP or cause the Issuer to become a member of MMCA's consolidated
group under GAAP. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the
Owner Trustee and the holders of Notes evidencing at least a majority of
the Outstanding Amount of the Notes, voting as a group, and the holders of
Certificates evidencing at least a majority of the Certificate Balance for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment may increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit
of the Noteholders or the Certificateholders or reduce the aforesaid
percentages of the holders of Notes and Certificates which are required to
consent to any such amendment, without the consent of the holders of all
the outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the consent of the
Seller, which permission shall not be unreasonably withheld.
(b) Upon any proposed amendment or supplement to this Agreement
pursuant to this Section 11, if such proposed amendment or supplement would
adversely affect any of the Swap Counterparties' rights or obligations
under the related Interest Rate Swap Agreement or modify the obligations
of, or impair the ability of the Issuer to fully perform any of its
obligations under, the related Interest Rate Swap Agreement, then the
Administrator shall obtain the consent of such Swap Counterparty prior to
the adoption of such amendment or supplement, provided each such Swap
Counterparty's consent shall not be unreasonably withheld, and provided,
further, a Swap Counterparty's consent will be deemed to have been given if
the Swap Counterparty does not object in writing within ten Business Days
of receipt of a written request for such consent and in accordance with the
terms of the Interest Rate Swap Agreement.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by the Issuer and the Owner Trustee and subject to the satisfaction of the
Rating Agency Condition in respect thereof. Any assignment without such
consent and satisfaction shall be null and void. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer or the Owner Trustee to
a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that
such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
14. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or affect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
17. Not Applicable to Mitsubishi Motors Credit of America, Inc. in
Other Capacities. Nothing in this Agreement shall affect any obligation
Mitsubishi Motors Credit of America, Inc. may have in any capacity other
than as Administrator under this Agreement.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Wilmington Trust Company in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, 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 Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bank of Tokyo-Mitsubishi Trust Company
not in its individual capacity but solely as Indenture Trustee and in no
event shall Bank of Tokyo-Mitsubishi Trust Company have any liability for
the representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party
hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.2 of the Sale and Servicing Agreement, to enforce the provisions
of Section 8.2 with respect to the appointment of a successor Servicer.
Such successor Servicer shall, upon compliance with the last sentence of
Section 8.2 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee
shall become such successor Administrator, the Indenture Trustee shall not
be required to perform any obligations or duties or conduct any activities
as successor Administrator that would be prohibited by law and not within
the banking and trust powers of the Indenture Trustee. In such event, the
Indenture Trustee may appoint a sub-administrator to perform such
obligations and duties.
21. No Petition; Subordination; Claims Against Seller.
(a) Notwithstanding any prior termination of this Agreement, the
Seller, the Administrator, the Owner Trustee and the Indenture Trustee
shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, (x) the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee
shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller; (y) any claim that the Issuer,
the Administrator, the Owner Trustee and the Indenture Trustee may have at
any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, the Certificates or the Receivables, and any claim that they may
have at any time against the Seller that they may seek to enforce against
the Subtrust Assets of any Subtrust unrelated to the Notes, the
Certificates or the Receivables, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller
becomes a debtor or debtor in possession in a case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of
the holders of any Securities related to such unrelated Subtrust and the
holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust and (z) the Issuer, the Administrator,
the Owner Trustee and the Indenture Trustee hereby irrevocably make the
election afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i)
to secured creditors to receive the treatment afforded by Title 00 Xxxxxx
Xxxxxx Code Section 1111(b)(2) with respect to any secured claim that they
may have at any time against the Depositor. The obligations of the Seller
under this Agreement are limited to the related Subtrust and the related
Subtrust Assets.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the day and year first
above written.
MMCA AUTO OWNER TRUST 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee
By: __________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By: __________________________
Name:
Title:
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC.,
as Administrator
By: __________________________
Name:
Title:
EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for MMCA AUTO OWNER TRUST 2001-3 (the
"Issuer"), does hereby make, constitute and appoint Mitsubishi Motors
Credit of America, Inc., in its capacity as administrator under the
Administration Agreement dated as of October 1, 2001 (the "Administration
Agreement"), among the Issuer, Mitsubishi Motors Credit of America, Inc.
and Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee, as the
same may be amended from time to time, and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Issuer
all such documents, reports, filings, instruments, certificates and
opinions as it should be the duty of the Owner Trustee or the Issuer to
prepare, file or deliver pursuant to the Related Agreements, or pursuant to
Section 5.5 of the Trust Agreement, including, without limitation, to
appear for and represent the Owner Trustee and the Issuer in connection
with the preparation, filing and audit of Federal, state and local tax
returns pertaining to the Issuer, and with full power to perform any and
all acts associated with such returns and audits that the Owner Trustee
could perform, including without limitation, the right to distribute and
receive confidential information, defend and assert positions in response
to audits, initiate and defend litigation, and to execute waivers of
restrictions on assessments of deficiencies, consents to the extension of
any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein
shall have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this [12]th day of October, 2001.
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee
By: _____________________
Name:
Title:
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally
appeared ______________________________, known to me to be the person whose
name is subscribed to the foregoing instruments, and acknowledged to me
that he/she signed the same for the purposes and considerations therein
expressed.
Sworn to before me this [12]th
day of October, 2001.
------------------------------------------------
Notary Public - State of Delaware
