ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of December 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 2001-4, 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, [ ]% Class A-2 Asset Backed Notes, [ ]% Class A-3 Asset
Backed Notes, [ ]% Class A-4 Asset Backed Notes and [ ]% Class B Asset
Backed Notes (collectively, the "Notes") pursuant to the Indenture, dated
as of December 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 Appendix A to the Indenture or, if not defined
therein, 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 December 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 as of the Closing Date (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 and (iii) the Indenture (collectively, 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.
(a) Duties with Respect to the Related Agreements.
(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
and by the Seller or Mitsubishi Motors
Credit of America, Inc. under the
Purchase Agreement (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) Additional Duties.
(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.
(c) Non-Ministerial Matters.
(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 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 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 days (or, it such default cannot be
cured in such time, shall not give within ten 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 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 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 2001-4
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
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. 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.
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.
Exhibit A
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 2001-4
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 2001-4 (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 December 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 ___ day of __________, 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 ____
day of __________, 2001.
_____________________________________________
Notary Public - State of Delaware
