EXHIBIT 4.4
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of December 1, 2002 (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 2002-5, a Delaware statutory 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, Floating Rate Class A-3 Asset Backed
Notes, Floating Rate Class A-4 Asset Backed Notes, Floating Rate Class B
Asset Backed Notes and Floating Rate Class C Asset Backed Notes
(collectively, the "Notes") pursuant to the Indenture, dated as of December
1, 2002 (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 Indenture or, if not
defined therein, in the amended and restated trust agreement, dated as of
July 29, 2002, between the Administrator, as beneficiary, and Chase
Manhattan Bank USA, National Association, 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, 2002 (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 II, 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, (iii) the Interest Rate Swap Agreement and (iv) 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 3.13);
(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 the Swap
Counterparty under the Interest Rate Swap Agreement
(Section 3.18);
(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 Sections 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 Agreement.
(i) Promptly following the early termination of the Interest
Rate Swap Agreement due to a Termination Event or an Event of Default
(as such terms are defined in the 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 the Interest Rate Swap Agreement with an
eligible swap counterparty. If and to the extent any Swap Termination
Payments that are received from the 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 the Swap Counterparty is required to collateralize the
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
the Swap Counterparty.
(iv) The Administrator shall notify the Swap Counterparty 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 Counterparty's
rights or obligations under the Interest Rate Swap Agreement or
modify the obligations of, or impair the ability of the Issuer to
fully perform any of its obligations under, the Interest Rate Swap
Agreement, the Administrator shall obtain the consent of the Swap
Counterparty prior to the adoption of such amendment or supplement,
provided, the Swap Counterparty's consent to any such amendment or
supplement shall not be unreasonably withheld, and provided further,
the Swap Counterparty's consent will be deemed to have been given if
the Swap Counterparty does not object in writing within ten Business
Days of receipt of a written request for such consent and 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 the 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.
(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, 2003,
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.
(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 10 days (or, if such default
cannot be cured in such time, shall not give within 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 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 8 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 2002-5
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
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
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.
(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 Counterparty's rights or obligations under
the Interest Rate Swap Agreement or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreement, then the Administrator shall obtain the consent
of the Swap Counterparty prior to the adoption of such amendment or
supplement, provided the Swap Counterparty's consent shall not be unreasonably
withheld, and provided, further, the Swap Counterparty's consent will be
deemed to have been given if the Swap Counterparty does not object in writing
within ten Business Days of receipt of a written request for such consent and
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 WITHOUT REFERENCE TO ITS CONFLICT OF
LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 2002-5
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: X. Xxxxxxxxx
Title: Trust Officer
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Administrator
By: ___________________________
Name: C. A. Xxxxxxx
Title: Executive Vice President
and General Manager
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 _____ (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 ________, _____ (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 __________, _____.
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 __________, _____.
------------------------------------
Notary Public - State of Delaware
