EXHIBIT 3.1
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AMENDED AND RESTATED TRUST AGREEMENT
dated as of October 1, 1999
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Beneficial Owner,
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................1
Section 1.2 Other Definitional Provisions..............................5
ARTICLE II
ORGANIZATION
Section 2.1 Name and Office............................................5
Section 2.2 Purposes and Powers........................................5
Section 2.3 Confirmation of Appointment of the Trustee.................7
Section 2.4 Initial Assets.............................................7
Section 2.5 Declaration of Trust.......................................7
Section 2.6 Situs of Trust.............................................7
Section 2.7 Title to Trust Property....................................8
Section 2.8 Representations and Warranties of MMCA.....................8
Section 2.9 Conduct of Business by MART................................9
ARTICLE III
MANAGEMENT OF MART; THE BOARD OF MANAGERS; OFFICERS
Section 3.1 General Management of MART................................11
Section 3.2 Appointment and Term......................................11
Section 3.3 Number; Independent Managers..............................11
Section 3.4 Resignation...............................................15
Section 3.5 Removal of Managers.......................................15
Section 3.6 Filling of Vacancies......................................15
Section 3.7 Managers' Compensation....................................15
Section 3.8 Liability of Managers.....................................15
Section 3.9 Officers..................................................15
Section 3.10Liability of Authorized Officers..........................18
ARTICLE IV
THE SUBTRUSTS
Section 4.1 Beneficial Ownership......................................18
Section 4.2 Subtrusts.................................................18
ARTICLE V
THE TRUSTEE
Section 5.1 Duties of the Trustee.....................................20
Section 5.2 Acceptance of Trusts and Duties...........................21
Section 5.3 Action upon Instruction by the Board of Managers or
Authorized Officers; Rights of the Trustee................23
Section 5.4 Furnishing of Documents...................................25
Section 5.5 Representations and Warranties of the Trustee.............25
Section 5.6 Reliance; Advice of Counsel...............................26
Section 5.7 Compensation and Indemnity................................27
Section 5.8 Resignation or Removal of the Trustee.....................28
Section 5.9 Merger or Consolidation of the Trustee....................29
Section 5.10Appointment of Co-Trustee or Separate Trustee.............29
Section 5.11Eligibility Requirements for the Trustee..................31
ARTICLE VI
TERMINATION OF TRUST AGREEMENT
Section 6.1 Termination of Trust Agreement...........................31
ARTICLE VII
AMENDMENTS
Section 7.1 Amendments................................................32
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Direction of the Trustee..................................32
Section 8.2 Limitations on Rights of Others...........................32
Section 8.3 Notices...................................................33
Section 8.4 Severability of Provisions................................34
Section 8.5 Counterparts..............................................34
Section 8.6 Successors and Assigns....................................34
Section 8.7 No Petition...............................................34
Section 8.8 Headings..................................................34
Section 8.9 Governing Law.............................................34
EXHIBITS
Exhibit A Form of Certificate of Trust........................ A-1
Exhibit B Form of Notice to Trustee Pursuant to Section 3.9(l) B-1
AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as of
October 1, 1999 (as the same may be further amended and restated, amended,
supplemented or otherwise modified and in effect from time to time in
accordance with the terms hereof, this "Agreement"), between MITSUBISHI
MOTORS CREDIT OF AMERICA, INC., a Delaware corporation ("MMCA"), as
beneficial owner under this Agreement (in such capacity, together with any
successor or assign, the "Beneficial Owner"), and CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation ("Chase Manhattan Bank Delaware"),
as trustee under this Agreement (in such capacity, or permitted assign, the
"Trustee");
WHEREAS, MMCA and the Trustee entered into a trust agreement,
dated and effective as of May 19, 1999 (the "Original Agreement"), pursuant
to which (i) MMCA Auto Receivables Trust, a Delaware business trust
("MART"), was created and (ii) Chase Manhattan Bank Delaware was appointed
as Trustee; and
WHEREAS, MMCA and the Trustee intend to amend and restate, on
the terms and conditions set forth herein, the Original Agreement to more
fully set forth the terms of MART and the rights and obligations of the
parties hereto.
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person shall
mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" shall have the meaning set forth in the
preamble hereto.
"Authorized Officer" shall have the meaning set forth in
Section 3.10(d).
"Beneficial Owner" shall mean MMCA in its capacity as the
exclusive
beneficial owner of MART and its successors and assigns in such
capacity.
"Board of Managers" shall have the meaning set forth in
Section 3.1.
"Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions or trust companies in New York, New
York, Wilmington, Delaware or Los Angeles, California shall be authorized
or obligated by law, regulation or executive order to be closed.
"Business Trust Statute" shall have the meaning set forth
in Section 2.5.
"Certificate of Trust" shall mean the Certificate of Trust in
substantially the form of Exhibit A hereto filed for MART pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificates" shall have the meaning set forth in Section
2.2(d).
"Chief Accounting Officer" shall have the meaning set forth
in Section 3.10(c).
"Chief Executive Officer" shall have the meaning set forth
in Section 3.10(a).
"Chief Financial Officer" shall have the meaning set forth
in Section 3.10(b).
"Commission" shall mean the Securities and Exchange
Commission.
"Contracts" shall have the meaning set forth in Section
2.2(a).
"Corporate Trust Office" shall mean, with respect to the Trustee,
the principal corporate trust office of the Trustee located at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, or at such other address as the Trustee may
designate from time to time by notice to the Board of Managers, or the
principal corporate trust office of any successor Trustee (the address of
which the successor Trustee will notify the Board of Managers).
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Indemnified Person" and "Indemnified Persons" shall have
the meanings set forth in Section 5.7(b).
"Indentures" shall have the meaning set forth in Section
2.2(e).
"Independent Manager" shall have the meaning set forth in
Section 3.4(c).
"Insolvency Event" shall mean, with respect to any Person, (i)
the making of a general assignment for the benefit of creditors, (ii) the
filing of a voluntary petition in bankruptcy, (iii) being adjudged a
bankrupt or insolvent, or having had entered against such Person an order
for relief in any bankruptcy or insolvency proceeding, (iv) the filing by
such Person of a petition or answer seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, (v) the filing by such Person of an answer
or other pleading admitting or failing to contest the material allegations
of a petition filed against such Person in any proceeding specified in
clause (vii) below, (vi) seeking, consenting to or acquiescing in the
appointment of a trustee, receiver or liquidator of such Person or of all
or any substantial part of the assets of such Person or (vii) the failure
to obtain dismissal within 60 days of the commencement of any proceeding
against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, or the entry of any order appointing a trustee,
liquidator or receiver of such Person or of such Person's assets or any
substantial portion thereof.
"Manager" shall have the meaning set forth in Section 3.2.
"MART" shall mean MMCA Auto Receivables Trust, a business trust
established pursuant to this Agreement and the Business Trust Statute, and
its successors
and assigns.
"MART Assets" shall mean, as of any date of determination, all
right, title and interest of MART in, to and under the Contracts and any
related property, Certificates representing beneficial interests therein
and all other property acquired by MART from MMCA or any other Person from
time to time as of such date of determination and all proceeds thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successor and assigns.
"Opinion of Counsel" shall mean a written opinion of counsel of
MART, who may be an employee of MART or any Affiliate of MART or outside
counsel to MART or any Affiliate of MART.
"Original Agreement" shall have the meaning set forth in
the recitals of this Agreement.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, trust,
unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Pooling Agreements" shall have the meaning set forth in
Section 2.2(c).
"Rating Agency" shall mean any nationally recognized
statistical rating organization.
"Responsible Officer" shall mean, with respect to the Trustee,
any officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Agreement and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"Securities" shall have the meaning set forth in Section
2.2(f).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Subtrust" shall have the meaning set forth in Section
4.2(a).
"Subtrust Assets" shall have the meaning set forth in
Section 4.2(a).
"Subtrust Designation Certificate" shall have the meaning
set forth in Section 4.2(c).
"Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware
banking corporation, acting not in its individual capacity but solely as
trustee under this Agreement, and its permitted successors and assigns in
such capacity.
"Trusts" shall have the meaning set forth on Section 2.2(c).
Section 1.2 Other Definitional Provisions.
(a) All terms in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(b) The words "hereof", "herein", "hereunder", and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections
and Exhibits in or to this Agreement unless otherwise specified; and the
term "including" shall mean "including without limitation".
(c) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.1 Name and Office. The trust created hereby shall be
known as "MMCA Auto Receivables Trust" or "MART", in which name the Board
of Managers may conduct the business of MART, make and execute contracts
and other instruments on behalf of MART and xxx and be sued. The office of
MART shall be at the address for MART set forth in Section 8.3 or at such
other address as an Authorized Officer may designate by written notice to
the Trustee from time to time.
Section 2.2 Purposes and Powers. The purpose of MART is to
engage solely in any or all of the following activities, all in accordance
with the terms of this Agreement:
(a) to acquire from time to time all right, title and interest
in and to installment sale contracts, receivables or leases arising out of
or relating to the sale, lease or financing of new or used motor vehicles
(including automobiles and light and heavy duty trucks), monies due
thereunder, security interests in the motor vehicles or equipment financed
thereby, proceeds from claims on insurance policies related thereto and
related rights (collectively, the "Contracts").
(b) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Contracts, collateral securing the Contracts,
related insurance policies, agreements with motor vehicle dealers or
equipment dealers or lessors or other originators or servicer of Contracts and
any proceeds or further rights associated with any of the foregoing;
(c) to transfer Contracts to trusts (collectively, the
"Trusts") pursuant to one or more pooling agreements, sale and servicing
agreements or other agreements (collectively, the "Pooling Agreements") to
be entered into by and among, among others, MART, the trustees named
therein and any entities acting as servicers of the Contracts;
(d) to authorize, sell and deliver any class of certificates or
other securities issued by the Trusts under the related Pooling Agreements
(collectively, the "Certificates");
(e) to enter into one or more indentures or other agreements
(collectively, the "Indentures") with the trustees named therein,
providing, among other things, for the issuance of the Securities referred
to in clause (f) below and the pledging of the pools of Contracts or
Certificates of any class issued by one or more Trusts;
(f) to authorize, issue, sell and deliver one or more series
and classes of certificates, bonds, notes or other evidence of indebtedness
or other securities secured or collateralized by one or more pools of
Contracts or by Certificates (collectively, the "Securities"), provided
that MART shall have no liability under any Securities except to the extent
of the one or more pools of Contracts or Certificates securing or
collateralizing such Securities;
(g) to hold and enjoy all of the rights and privileges of any
class of any series of Certificates issued by the Trusts to MART under the
related Pooling Agreements and to hold and enjoy all of the rights and
privileges of any class of any series of Securities issued under the
related Indentures, including any class of Securities or Certificates which
may be subordinate to any other class of Securities or Certificates,
respectively;
(h) to perform its obligations under the Pooling Agreements and
Indentures; and
(i) to enter into all such other agreements, to engage in all
such other activities and to exercise all such other powers permitted to
business trusts under the Business Trust Statute that are incidental to or
connected with the foregoing business or purposes or necessary or desirable
to accomplish the foregoing.
Section 2.3 Confirmation of Appointment of the Trustee. The
Beneficial Owner hereby confirms the appointment of Chase Manhattan Bank
Delaware as Trustee, effective as of the date of the Original Agreement.
Effective as of the date hereof, the Trustee shall have all rights, powers
and duties set forth herein and in the Business Trust Statute with respect
to accomplishing the purposes of MART.
Section 2.4 Initial Assets. Pursuant to the Original Agreement,
MMCA, as Beneficial Owner, granted, assigned, transferred, conveyed and set
over to MART, as of the date thereof, the sum of $100. The Trustee, on
behalf of MART, has acknowledged receipt in trust from the Beneficial
Owner, as of the date thereof, of the foregoing contribution, which
constituted the initial assets of MART.
Section 2.5 Declaration of Trust. The Trustee hereby declares
that, subject to the terms and conditions of this Agreement, it shall hold
all assets of MART conveyed or to be conveyed to MART, including all monies
and proceeds of such assets, in trust for the benefit of the Beneficial
Owner. It is the intention of the parties hereto that (i) MART constitutes
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12
Delaware Code ss. 3801 et seq. (the "Business Trust Statute") and that this
document constitute the governing instrument of MART and (ii) solely for
income and franchise tax purposes, MART shall be treated (a) if it has a
single beneficial owner, as a non-entity, and if has more than one
beneficial owner, as a partnership, with the assets of the partnership
being the assets held by MART and the partners of the partnership being the
beneficial owners. The parties agree that, unless otherwise required by the
appropriate tax authorities, MART will file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of MART either as a non-entity or as a partnership for
such tax purposes. Effective as of the date hereof, the Trustee shall have
the rights, powers and duties set forth herein and in the Business Trust
Statute with respect to accomplishing the purposes of MART.
Section 2.6 Situs of Trust. MART shall be located and
administered in the State of Delaware. Any bank accounts maintained by the
Trustee on behalf of MART shall be located in the State of California, the
State of Delaware or the State of New York. Payments will be received by
MART only in California, Delaware or New York, and payments will be made by
MART only from California, Delaware or New York.
Section 2.7 Title to Trust Property. Legal title to all assets
of MART shall at all times be vested in MART as a separate legal entity,
except where applicable law in any jurisdiction requires title to any part
of the assets of MART to be vested in the trustee or trustees, in which
case title shall be deemed to be vested in the Trustee, a co-trustee and/or
a separate trustee, as the case may be.
Section 2.8 Representations and Warranties of MMCA. MMCA, as
Beneficial Owner, hereby represents and warrants to the Trustee that:
(a) Organization, etc. The Beneficial Owner has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted;
(b) Due Qualification. The Beneficial Owner is duly qualified
to do business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires such
qualifications;
(c) Due Authorization and Binding Obligation. This Agreement
has been duly authorized, executed and delivered by the Beneficial Owner,
and is the valid, binding and enforceable obligation of the Beneficial
Owner except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles;
(d) No Violation. The execution, delivery and performance by
the Beneficial Owner of this Agreement and the consummation of the
transactions contemplated hereby and the fulfillment of the terms hereof
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a default under, the certificate of incorporation or bylaws of the
Beneficial Owner, or conflict with, or breach any of the terms or
provisions of, or constitute (with or without notice or lapse of time or
both) a default under, any indenture, agreement, mortgage, deed of trust or
other instrument to which the Beneficial Owner is a party or by which the
Beneficial Owner is bound or to which any of its properties are subject, or
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument, or violate any law, order, rule, or regulation,
applicable to the Beneficial Owner or any of its properties, of any federal
or state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over the Beneficial Owner
or any of its properties; and
(e) No Proceedings. There are no proceedings or investigations
pending or, to the Beneficial Owner's best knowledge, threatened before any
governmental authorities (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the
Beneficial Owner of its obligations under, or the validity and
enforceability of, this Agreement.
Section 2.9 Conduct of Business by MART. (a) The business and
affairs of MART shall be operated in such a manner as the Board of Managers
deems reasonable and necessary or appropriate to preserve the limited
liability of the Beneficial Owner, the separateness of MART from the
business of the Beneficial Owner or any Affiliate of the Beneficial Owner,
and until one year and one day after all Securities and Certificates are
paid in full, the special purpose, bankruptcy remote status of MART. To the
extent permitted by law, until one year and one day after all Securities
and Certificates are paid in full, the Board of Managers shall make
decisions with respect to the business and daily operations of MART
independent of, and not dictated by, the Beneficial Owner or any Affiliate
of the Beneficial Owner.
(b) MART shall at all times:
(i) maintain books and records separate from those
of any other Person;
(ii) maintain its accounts separate from those of any
other Person;
(iii) conduct its business solely in its own name;
(iv) maintain financial statements separate from those of
any other Person, separately identifying its own assets, liabilities
and financial affairs;
(v) pay its indebtedness and other liabilities out
of its own funds and assets;
(vi) observe all business trust formalities
required by law and this Agreement;
(vii) maintain an arm's-length relationship with
each of its Affiliates;
(viii) pay the salaries of its own employees and officers
and maintain a sufficient number of employees in light of its
contemplated business operations;
(ix) allocate fairly and reasonably any overhead for
office space or other expenses incurred by any Affiliate on behalf of
MART;
(x) use stationery, invoices, checks and other business
forms separate from those of any other Person;
(xi) correct any known misunderstanding regarding its
identity separate from that of any other Person; and
(xii) maintain adequate capital in light of its
contemplated business operations.
(c) MART shall not do any of the following until one year and
one day after all Securities and Certificates are paid in full:
(i) seek to have its indebtedness or other obligations
guaranteed by, or secured by a pledge of the assets of, the
Beneficial Owner or any Affiliate of the Beneficial Owner (except for
MART);
(ii) commingle its bank accounts or other assets with
those of any other Person;
(iii) acquire any obligations or securities of the
Beneficial Owner;
(iv) operate or purport to operate as an integrated,
single economic unit with respect to any other Person; or
(v) seek or obtain credit or incur any obligation to any
third party based upon the assets of the Beneficial Owner or any
Affiliate of the Beneficial Owner (except for MART) or induce any
such third party to reasonably rely on the creditworthiness of the
Beneficial Owner or any Affiliate of the Beneficial Owner (except for
MART), or suggest in any way that its assets are directly available
to pay the claims of creditors of the Beneficial Owner or any
Affiliate of the Beneficial Owner (except for MART).
(d) Notwithstanding any provision in this Agreement to the
contrary, MMCA may pay the fees and expenses and indemnify (i) the Trustee
pursuant to this Agreement and (ii) any underwriter, placement agent,
initial purchaser for resale or other Person performing similar functions
in connection with the issuance of any Securities or Certificates.
ARTICLE III
MANAGEMENT OF MART; THE BOARD OF MANAGERS; OFFICERS
Section 3.1 General Management of MART. (a) The business,
properties and affairs of MART shall be managed by the Board of Managers
(the "Board of Managers") which, without limiting the generality of the
foregoing, shall have the power to appoint officers of MART, to appoint and
direct agents, to grant general or limited authority to officers, employees
and agents of MART, and to make, execute and deliver contracts and other
instruments and documents in the name and on behalf of MART, including the
documentation referred to in Section 3.1(b).
(b) The Board of Managers shall have the power and authority to
execute, deliver and file with the Commission in the name of and on behalf
of MART one or more registration statements in connection with the offering
of Securities or Certificates by MART or any Affiliate of MART. The Board of
Managers shall also have the power and authority to execute, deliver and file
with the Commission in the name of and on behalf of MART such other
documentation that is required to be executed, delivered and filed with the
Commission from time to time under the Securities Act or the Exchange Act in
connection with the offering of Securities or Certificates by MART or any
Affiliate of MART.
Section 3.2 Appointment and Term. The Beneficial Owner shall be
entitled to appoint from time to time persons to serve as the managers
(each, a "Manager") on the Board of Managers. Managers shall serve until
their respective successors are appointed by the Beneficial Owner or until
their earlier death, resignation, retirement or removal.
Section 3.3 Number. The number of Managers which shall
constitute the whole Board of Managers shall be five. The number may be
increased or reduced from time to time by amendment of this Agreement.
Section 3.4 Standard of Care; Independent Managers. (a) A
Manager shall owe such fiduciary duties of loyalty and due care to MART as
is required of a director of a Delaware corporation under applicable
Delaware law. Every Manager shall discharge his or her duties in good
faith, with the care an ordinary prudent person in a like position would
exercise under similar circumstances, and in a manner her or she reasonably
believes to be in the best interest of MART.
(b) The Board of Managers of MART shall include at least two
Independent Managers until one year and one day after all Securities and
Certificates are paid in full. So long as any Securities or Certificates
rated by any Rating Agency are outstanding, this Section 3.4(b) and
Sections 3.4(c) and (d) shall not be amended without the prior written
consent of each of the Independent Managers. When voting on matters subject
to the vote of the Board of Managers, including those matters specified in
Section 3.4(d), (i) notwithstanding that MART is not then subject to an
Insolvency Event, the Independent Managers shall take into account the
interests of the creditors of MART as well as the interests of MART and
(ii) if MART is then subject to an Insolvency Event, in any action
requiring the vote of the Independent Managers pursuant to Section 3.4(d),
the Independent Managers and each other Manager shall owe their fiduciary
duties to MART and the creditors of MART. Except as provided in Section
3.4(d), any action permitted or required to be taken by the Board of
Managers may be taken by a simple majority of the members of the Board of
Managers. The actions set forth in Section 3.4(d) shall be the only actions
by the Board of Managers that shall require the affirmative vote of 100% of
the Board of Managers or the vote of the majority that includes at least
two Independent Managers.
(c) The following terms shall have the meanings set forth below
(which other than the definition of "Independent Manager" set forth in
clause (i) below shall be solely for purposes of this Section 3.4(c)):
(i) An "Independent Manager" shall be an individual who:
(A) is not and has not been employed by MMCA or any of its
subsidiaries or affiliates as a director, officer or employee within
the five years immediately prior to such individual's appointment as
an Independent Manager; (B) is not and has not been affiliated with
either a significant customer of MMCA or any of its subsidiaries or
affiliates within the five years immediately prior to such
individual's appointment as an Independent Manager or a significant
supplier of MMCA or any of its subsidiaries within the five years
immediately prior to such individual's appointment as an Independent
Manager; (C) is not and has not been affiliated with a company of
which MMCA or any of its subsidiaries and affiliates is a significant
customer or significant supplier within the five years immediately
prior to such individual's appointment as an Independent Manager; (D)
does not have and has not had significant personal services
contract(s) with MMCA or any of its subsidiaries or affiliates within
the five years immediately prior to such individual's appointment as
an Independent Manager; (E) is not affiliated with a tax-exempt
entity that receives significant contributions from MMCA or any of
its subsidiaries or affiliates within the five years immediately
prior to such individual's appointment as an Independent Manager; (F)
is not the beneficial owner at the time of such individual's
appointment as an Independent Manager, or at any time thereafter
while serving as an Independent Manager, of such number of shares of
any class of common stock of MMCA the value of which constitutes more
than 3% of such individual's net worth; (G) is not a spouse, parent,
sibling or child of any person described by clauses (A) through (F);
and (H) is not and was not a major creditor of MMCA or any of its
subsidiaries or affiliates within the five years prior to such
appointment as an Independent Manager.
(ii) An "affiliate" of a person, or a person "affiliated
with," a specified person, shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the specified person.
(iii) The term "control" (including the terms
"controlling," "controlled by" and "under common control with") shall
mean the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a person,
whether through the ownership or voting securities, by contract, or
otherwise; provided, however, that a person shall not be deemed to
control another person solely because he or she is a director of such
other person.
(iv) The term "person" shall mean any individual,
partnership, firm, corporation, association, trust, unincorporated
organization or other entity, as well as any syndicate or group deemed to
be a person pursuant to Section 13(d)(3) of the Exchange Act.
(v) A "subsidiary" of MMCA shall mean any corporation a
majority of the voting stock of which is owned, directly or
indirectly through one or more other subsidiaries, by MMCA.
(vi) A "significant customer of MMCA or any of its
subsidiaries or affiliates" shall mean a customer from which MMCA and
any of its subsidiaries or affiliates collectively in the last fiscal
year of MMCA received payments in consideration for the products and
services of MMCA and its subsidiaries and affiliates which are in
excess of 1% of the consolidated gross revenues of MMCA and its
subsidiaries during such fiscal year.
(vii) A "significant supplier of MMCA or any of its
subsidiaries or affiliates" shall mean a supplier to which MMCA and
any of its subsidiaries or affiliates collectively in the last fiscal
year of MMCA made payments in consideration for the supplier's
products and services in excess of 3% of the consolidated gross
revenues of MMCA and its subsidiaries during such fiscal year.
(viii) MMCA or any of its subsidiaries and affiliates
shall be deemed a "significant customer" of a company if MMCA and any
of its subsidiaries and affiliates collectively were the direct
source during such company's last fiscal year in excess of 3% of the
gross revenues which such company received from the sale of its
products and services during such fiscal year.
(ix) MMCA or any of its subsidiaries and affiliates shall
be deemed a "significant supplier" of a company if MMCA and any of
its subsidiaries or affiliates collectively received in such
company's fiscal year payments from such company in excess of 3% of
the gross revenues which such company received during such fiscal
year for the sale of its products and services.
(x) A person shall be deemed to have "significant
personal services contract(s) with MMCA or any of its subsidiaries or
affiliates" if the fees and other compensation received by the person
pursuant to personal services contract(s) with MMCA and any of its
subsidiaries or affiliates exceeded or would exceed 3% of his or her
gross revenues during the last calendar year.
(xi) A tax-exempt entity shall be deemed to receive
"significant contributions from MMCA or any of its subsidiaries or
affiliates" if such tax-exempt entity received during its last fiscal
year, or expects to receive during its current fiscal year,
contributions from MMCA or its subsidiaries or affiliates in excess of
the lesser of (i) 3% of the consolidated gross revenues of MMCA and
its subsidiaries during such fiscal year and (ii) 1% of the
contributions received by the tax-exempt entity during such fiscal
year.
(xii) A person shall be deemed to be a "major creditor of
MMCA or any of its subsidiaries or affiliates" if it is a financial
institution which MMCA, such subsidiary or such affiliate owes
outstanding indebtedness for borrowed money in a sum exceeding more
than 5% of MMCA's total consolidated assets.
(d) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers MART, MART shall not,
without the affirmative vote of a majority of the members of the Board of
Managers, including each Independent Manager, do any of the following:
(i) engage in any business or activity other than
those set forth in Section 2.2;
(ii) incur any indebtedness, or assume or guaranty any
indebtedness of any other person, other than (A) indebtedness
incurred to MMCA or any Affiliate of MART in connection with the
acquisition of Contracts from time to time and the other businesses
and activities set forth in Section 2.2, which indebtedness will be
subordinate to any Certificates and any Securities and will only be
payable to the extent MART has available cash to pay such
indebtedness; (B) indebtedness incurred in connection with Securities
or Certificates issued in compliance with a Pooling Agreement or an
Indenture; (C) salaries, fees and expenses to its professional
advisors and counsel, Managers, officers and employees; (D)
indebtedness where the person to whom the indebtedness is owing has
delivered to MART an undertaking that it will not institute against,
or join any other person in instituting against, MART any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or
other proceeding under any federal or state bankruptcy or similar
law, for one year and one day after all Securities and Certificates
are paid in full, or look to property or assets of MART in respect of
such obligations and that such obligations shall not constitute a
claim against MART in the event that MART's assets are insufficient
to pay in full such obligations; and (E) other indebtedness not
exceeding $5,000 at any one time outstanding, on account of
incidentals or services supplied or furnished to MART; or
(iii) engage in or take any other action that would
constitute an Insolvency Event.
Section 3.5 Resignation. Any Manager may resign at any time
upon written notice of resignation to the Trustee and the Beneficial Owner.
Any resignation shall be effective immediately unless a date certain is
specified for it to take effect, in which event it shall be effective upon
such date, and acceptance of any resignation shall not be necessary to make
it effective, irrespective of whether the resignation is tendered subject
to such acceptance.
Section 3.6 Removal of Managers. Any Manager may be
removed, either for or without cause, by the Beneficial Owner.
Section 3.7 Filling of Vacancies. In the case of any increase
in the number of Managers, or of any vacancy in the Board of Managers, the
additional Manager shall be appointed by the Beneficial Owner.
Section 3.8 Managers' Compensation. Any or all Managers may
receive such reasonable compensation for their services, whether in the
form of salary or otherwise, with expenses, if any, as the Board of
Managers may from time to time determine.
Section 3.9 Liability of Managers. No person shall be
personally liable to MART or the Beneficial Owner for any breach of its
duties as a Manager; provided, however, that the foregoing shall not
eliminate or limit the liability of a Manager for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation
of the law.
Section 3.10 Officers. (a) The Board of Managers, by a simple
majority, shall appoint a chief executive officer of MART (the "Chief
Executive Officer"). The Chief Executive Officer shall be the chief
executive officer of MART. The Chief Executive Officer shall have general
authority to exercise all the powers necessary for the chief executive
officer of MART. The Chief Executive Officer shall also be the chief
operating officer of MART. The Chief Executive Officer shall implement the
general directives, plans and policies of MART within the scope of the
authority delegated to the Chief Executive Officer by the Board of
Managers. The Chief Executive Officer shall have the primary responsibility
for (i) maintaining the separate status of MART from any Affiliate of MART,
(ii) overseeing the proper segregation of the assets of MART from the
assets of third parties who may have general authority to execute bonds,
deeds and contracts in the name and on behalf of MART, (iii) employing or
appointing such employees, agents and officers as may be required to carry
on the operation of the business of MART, and (iv) supervising the proper
segregation of the Subtrust Assets allocated to each Subtrust from the
Subtrust Assets allocated to any other Subtrust in accordance with Section
4.2. In the absence of the Chief Executive Officer, the duties of the Chief
Executive Officer shall be performed and the authority of the Chief
Executive Officer shall be exercised by such officer as may have been
designated by the most senior officer of MART who has made any such
designation, with the right reserved to the Board of Managers to make the
designation or supersede any designation so made.
(b) The Board of Managers, by a simple majority, or the Chief
Executive Officer shall appoint a chief financial officer of MART (the
"Chief Financial Officer"). The Chief Financial Officer shall be the chief
financial officer of MART. Except as otherwise provided by the Board of
Managers or the Chief Executive Officer, the Chief Financial Officer shall
perform all necessary acts and duties in connection with the administration
of the financial affairs of MART and shall generally perform all the duties
usually appertaining to the office of the chief financial officer of a
business. In the absence of the Chief Financial Officer, the duties of the
Chief Financial Officer shall be performed and the authority of the Chief
Financial Officer shall be exercised by such officer as may be designated
by the Chief Executive Officer, with the right reserved to the Board of
Managers to make the designation or supersede any designation so made.
(c) The Board of Managers, by a simple majority, or the Chief
Executive Officer shall appoint a chief accounting officer of MART (the
"Chief Accounting Officer"). The Chief Accounting Officer shall be the
chief accounting officer of MART. Except as otherwise provided by the Board
of Managers or the Chief Executive Officer, the Chief Accounting Officer
shall perform all necessary acts and duties usually appertaining to the
office of the chief accounting officer of a business. In the absence of the
Chief Accounting Officer, the duties of the Chief Accounting Officer shall
be performed and the authority of the Chief Accounting Officer shall be
exercised by such officer as may be designated by the Chief Executive
Officer, with the right reserved to the Board of Managers to make the
designation or supersede any designation so made.
(d) The Board of Managers, by a simple majority, or the Chief
Executive Officer may, from time to time, appoint other officers of MART as
may be necessary or appropriate for the conduct of MART's business, subject
to the supervision and control of the Board of Managers and the Chief
Executive Officer (each such officer together with the Chief Executive
Officer, the Chief Financial Officer and the Chief Accounting Officer, an
"Authorized Officer"). Any Authorized Officers so designated shall have
such authority and perform such duties as the Board of Managers or the
Chief Executive Officer may, from time to time, delegate to them. Either
the Board of Managers or the Chief Executive Officer may assign titles to
particular officers in addition to the Chief Financial Officer and the
Chief Accounting Officer.
(e) The Chief Executive Officer shall have authority to fix the
compensation of the employees, agents and officers of MART. The Chief
Executive Officer shall also have the authority to appoint, suspend or
remove any other Authorized Officer, employee or agent of MART.
(f) All Authorized Officers appointed by the Board of Managers
or the Chief Executive Officer shall hold office until their respective
successors are appointed or until their earlier resignation or removal. All
Authorized Officers shall hold office at the pleasure of the Board of
Managers. If any vacancy shall occur in any office, the Board of Managers
or the Chief Executive Officer may appoint a successor to fill such
vacancy.
(g) The Chief Executive Officer may be removed at any time,
either for or without cause, by a simple majority of the Board of Managers.
Any of the other Authorized Officers may be removed at any time, either for
or without cause, by a simple majority of the Board of Managers or the
Chief Executive Officer.
(h) Any Authorized Officer may resign at any time upon written
notice of resignation to MART. Any resignation shall be effective
immediately unless a date certain is specified for it to take effect, in
which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary to make it effective, irrespective of
whether the resignation is tendered subject to such acceptance.
(i) Any Authorized Officer may hold two or more offices the
duties of which can be consistently performed by the same Person.
(j) In addition to the foregoing specifically enumerated duties
and authority, the Authorized Officers shall perform such other duties and
may exercise such further authority as the Board of Managers or the Chief
Executive Officer may determine from time to time or may be assigned to
them from time to time by any superior officer.
(k) Except as fixed or controlled by the Board of Managers,
compensation of all officers and employees shall be fixed by the Chief
Executive Officer or by other Authorized Officers exercising authority
granted to them.
(l) On or prior to the date of this Agreement, an Authorized
Officer shall provide a written notice to the Trustee in substantially the
form attached hereto as Exhibit B setting forth the name and title of each
officer of MART who shall be an Authorized Officer for purposes of this
Agreement. An Authorized Officer shall also provide prompt written notice
to the Trustee if any additional Person shall be appointed an Authorized
Officer for purposes of this Agreement or if any Person shall no longer be
an Authorized Officer for purposes of this Agreement because of such
officer's resignation, removal or otherwise. The Trustee shall be entitled
to rely upon, and shall be protected in relying upon, any written notice
delivered to the Trustee pursuant to this Section 3.10(l).
Section 3.11 Liability of Authorized Officers. No Authorized
Officer shall be personally liable to MART or the Beneficial Owner for any
breach of its duties as an Authorized Officer; provided, however, that the
foregoing shall not eliminate or limit the liability of an Authorized
Officer of MART for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law.
ARTICLE IV
THE SUBTRUSTS
Section 4.1 Beneficial Ownership. The Beneficial Owner
shall be the exclusive beneficial owner of MART and each Subtrust.
Section 4.2 Subtrusts. (a) The MART Assets, immediately upon
the acquisition thereof by MART, shall be allocated to, and identified only
with, a Subtrust under this Agreement (each such subtrust, a "Subtrust",
and the assets allocated to each such Subtrust, "Subtrust Assets"). Each
Subtrust shall be a separate series of MART pursuant to Section 3806(b)(2)
of the Business Trust Statute. The Board of Managers shall cause an
Authorized Officer to account for and record separately all Subtrust Assets
and the proceeds thereof allocated to any Subtrust from the Subtrust Assets
and the proceeds thereof allocated to any other Subtrust. The Board of
Managers shall cause an Authorized Officer to maintain separate and
distinct records for the Subtrust Assets related to each Subtrust and to
hold and account for the Subtrust Assets related to each Subtrust
separately from the Subtrust Assets related to any other Subtrust. Except
to the extent required by law or specified in this Agreement, the debts,
liabilities and expenses incurred, contracted for or otherwise existing
with respect to any Subtrust shall be enforceable against the assets of
such Subtrust only, and not against the assets of MART generally or of any
other Subtrust, and, except to the extent required by law or specified in
this Agreement, none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to MART
generally shall be enforceable against the assets of any Subtrust.
(b) Notice of the limitation on interseries liabilities between
Subtrusts applicable to each Subtrust and the Subtrust Assets has been set
forth in the Certificate of Trust as filed in the office of the Secretary
of State pursuant to the Business Trust Statute and the Original Agreement.
It is the express intent of the parties hereto that effective upon the
giving of such notice in the Certificate of Trust, the statutory provisions
of Section 3804 of the Business Trust Statute relating to limitations on
interseries liabilities (and the statutory effect under Section 3804 of the
Business Trust Statute of setting forth such notice in the Certificate of
Trust) became applicable to MART, the Trustee, the Beneficial Owner and the
Subtrust Assets related to each Subtrust. The limitation on interseries
liabilities is included in the Certificate of Trust as filed with the
Secretary of State in the form attached hereto as Exhibit A.
(c) Any Security and every note, bond, contract or other
undertaking issued by or on behalf of any Subtrust shall include a
recitation limiting the obligation represented thereby to the related
Subtrust and the related Subtrust Assets. Any such Security, note, bond,
contract or undertaking, whether secured or unsecured, shall also include
an acknowledgment and agreement by the holder thereof to the effect that
any claim that such holder may have at any time against any MART Assets
that are allocated to an unrelated Subtrust, and any claim that such holder
may have at any time against MART that such holder may seek to enforce
against any MART Assets that are allocated to an unrelated Subtrust, shall
be subordinate to the payment in full, including post-petition interest, in
the event that MART becomes subject to an Insolvency Event, of the claims
of the holders of any Securities or Certificates that are related to such
unrelated Subtrust and the holders of any other notes, bonds, contracts or
other obligations that are related to such unrelated Subtrust. Any Security
and every note, bond, contract or other undertaking issued by or on behalf
of any Subtrust shall include a recitation that each holder or owner of
such Security, note, bond, contract or other undertaking shall, by
acceptance of such Security, note, bond, contract or other undertaking (or,
in the case of an owner, a beneficial interest in such Security, note,
bond, contract or other undertaking), irrevocably makes 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 such holder or
owner may have at any time against the seller.
(d) The Subtrust to which any MART Assets shall be allocated
shall be specified in a certificate (each, a "Subtrust Designation
Certificate") executed by an Authorized Officer and delivered to the
Trustee not less than one Business Day prior to the acquisition of the
applicable MART Assets. Each Subtrust Designation Certificate shall include
the following:
(i) a designation of the Subtrust to which the MART
Assets are to be allocated, which shall be in form and substance
sufficient to allow the Trustee to differentiate between the Subtrust
to which the MART Assets are to be allocated and any other Subtrust;
(ii) the date on which the MART Assets to be allocated to
such Subtrust are to be transferred to MART and allocated to such
Subtrust; and
(iii) a list of the MART Assets to be allocated to the
Subtrust, which shall identify the MART Assets in such a manner as
may be reasonably required by the Trustee to differentiate between
such MART Assets allocated to such Subtrust and any other MART
Assets.
ARTICLE V
THE TRUSTEE
Section 5.1 Duties of the Trustee. (a) The Trustee is
authorized and directed to execute and deliver this Agreement and each
certificate or other document attached as an exhibit to or contemplated by
this Agreement to which MART is to be a party, in such form as the
Beneficial Owner, the Board of Managers or any Authorized Officer shall
approve, such approval in the case of this Agreement to be evidenced by the
signature of an authorized officer of the Beneficial Owner on the signature
page hereto. Neither the Board of Managers nor any Authorized Officer shall
direct the Trustee to take or refrain from taking any action if such action
or inaction would be contrary to any obligation of MART or the Trustee
under this Agreement, and the Trustee shall not be obligated to follow any
such direction, if given. The Trustee shall perform such duties, and only
such duties, as are specifically set forth in this Agreement. No implied
covenants or obligations on the part of the Trustee shall be read into this
Agreement.
(b) In addition to the foregoing, the Trustee is authorized
(but shall not be obligated) to take all actions required of MART pursuant
to this Agreement. The Trustee is further authorized from time to time to
take such action on behalf of MART as is permitted by this Agreement and
which any Authorized Officer recommends with respect to the Trust
Agreement, except to the extent that this Agreement expressly requires the
consent of the Board of Managers for such action.
(c) It shall be the duty of the Trustee to discharge (or cause
to be discharged) all of its responsibilities pursuant to the terms of this
Agreement. Notwithstanding the foregoing, the Trustee shall be deemed to
have discharged its duties and responsibilities hereunder to the extent the
Board of Managers or an Authorized Officer is required hereunder to perform
any act or to discharge such duty of the Trustee or MART hereunder, and the
Trustee shall not be held liable for the default or failure of the Board of
Managers or an Authorized Officer, as the case may be, to carry out its
obligations hereunder. The Trustee shall have no obligation to administer,
service or collect the Contracts or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Contracts.
(d) In the absence of bad faith on its part, the Trustee may
conclusively rely upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement in determining the
truth of the statements and the correctness of the opinions contained
therein; provided, however, that the Trustee shall have examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(e) Neither the Board of Managers nor any Authorized Officer
shall direct the Trustee to take any action that is inconsistent with
Section 2.2 or the terms of this Agreement.
(f) The Trustee shall not be required (i) to keep itself
informed as to the performance or observance by the Board of Managers or
any Authorized Officer of any obligations of the Board of Managers or any
Authorized Officer under this Agreement or any other document or agreement
to which the Trust is a party referred to or provided for herein or (ii) to
inspect the properties or books or records of the Board of Managers or any
Authorized Officer maintained on behalf of the Trust.
(g) Neither the Board of Managers nor any Authorized Officer
shall, without the prior written consent of the Trustee, enter into any
agreement or other instrument on behalf of the Trust that obligates the
Trustee to take any action or perform any service or that creates on behalf
of the Trustee any other duty or obligation.
Section 5.2 Acceptance of Trusts and Duties. Except as
otherwise provided in this Article V, in accepting the trusts hereby
created, the Trustee acts solely as trustee hereunder and not in its
individual capacity. All Persons having any claim against the Trustee by
reason of the transactions contemplated by this Agreement shall not be
entitled to payment or satisfaction thereof from the Trustee in its
individual capacity, except in the manner and to the extent provided by
this Section 5.2. The Trustee accepts the trusts hereby created and agrees
to perform its duties hereunder with respect to such trusts but only upon
the terms of this Agreement. The Trustee shall not be liable or accountable
hereunder under any circumstances, except (i) for its own negligent action,
its own negligent failure to act or its own willful misconduct or (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 5.5 and expressly made by the Trustee in its individual capacity.
In particular, but not by way of limitation (and subject to the exceptions
set forth in the preceding sentence):
(a) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Board of Managers or an Authorized Officer pursuant to Section 5.3;
(b) no provision of this Agreement shall require the Trustee to
expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder, if the Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
or provided to it;
(c) the Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by MMCA or for the form,
character, genuineness, sufficiency, value or validity of any MART Assets
or for or in respect of the validity or sufficiency of any agreement or
other document to which MART is a party, and in no event shall the Trustee
assume or incur any liability, duty or obligation to the Board of Managers,
other than as expressly provided for herein;
(d) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement, at the request, order or direction of the Board
of Managers or an Authorized Officer, unless the Beneficial Owner has
offered to the Trustee security or indemnity satisfactory to it against the
fees, costs, expenses and liabilities that may be incurred by the Trustee
therein or thereby;
(f) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its own negligent action or
willful misconduct in the performance of any such act; and
(g) in no event shall the Trustee be liable for the acts or
omissions of the Board of Managers or an Authorized Officer or be
responsible for performing or monitoring the performance of the Board of
Managers or any Authorized Officer.
Every provision of this Agreement relating to the Trustee shall
be subject to the provisions of this Section 5.2.
Section 5.3 Action upon Instruction by the Board of Managers or
Authorized Officers; Rights of the Trustee. (a) Notwithstanding the
foregoing, and in accordance with Section 5.2(d), the Trustee shall not be
required to take any action or refrain from taking action hereunder if the
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of
the Trustee or is contrary to the terms of this Agreement or is otherwise
contrary to law.
(b) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement, or
is unsure as to the application, intent, interpretation or meaning of any
provision of this Agreement, the Trustee may request an Opinion of Counsel
(at the expense of MART) as to such application, intent, interpretation or
meaning, or may give notice (in such form as shall be appropriate under the
circumstances) to the Board of Managers requesting instruction as to the
course of action to be adopted, and, to the extent the Trustee acts in good
faith in accordance with such Opinion of Counsel or any such instruction
received from the Board of Managers or an Authorized Officer, as the case
may be, the Trustee shall not be liable on account of such action to any
Person. If the Trustee shall not have received an Opinion of Counsel or
appropriate instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances), it may, but shall be under no duty
to, take or refrain from taking such action which is consistent, in its
view, with this Agreement, and the Trustee shall have no liability to any
Person for any such action or inaction.
(c) The Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose
of, or otherwise deal with the MART Assets, or to otherwise take or refrain
from taking any action under, or in connection with, any document
contemplated hereby to which the Trustee or MART is a party, except as
expressly provided by the terms of this Agreement or in any document or
written instruction received by the Trustee pursuant to this Section 5.3;
and no implied duties or obligations shall be read into this Agreement
against the Trustee. The Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or
to otherwise perfect or maintain the perfection of any security interest or
lien granted to it pursuant to any agreement or other document to which it
is a party in its capacity as Trustee. The Trustee nevertheless agrees that
it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any lien on any part of the MART Assets that results
from actions by, or claims against, the Trustee in its individual capacity
that are not related to the ownership or the administration of the MART
Assets.
(d) The Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any MART Assets except (i) in accordance with
powers granted to and the authority conferred upon the Trustee pursuant to
this Agreement and (ii) pursuant to any document or instruction delivered
to the Trustee in accordance with this Agreement.
(e) Except in accordance with the written instructions
furnished by an Authorized Officer and except as provided herein, the
Trustee shall have no duty (i) to see to any recording or filing of any
document, (ii) to see to the payment or discharge of any tax, assessment or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against any part of MART, (iii) to confirm
or verify any financial statements of MART or any statements or reports of
the Board of Managers or an Authorized Officer or (iv) to inspect MART's
books and records at any time.
(f) The Trustee shall not be required to take any action under
this Agreement unless the Trustee shall have been indemnified by the Beneficial
Owner, in manner and form satisfactory to the Trustee, against any
liability, cost or expense (including counsel fees and disbursements) which
may be incurred in connection therewith; and, if the Board of Managers or
an Authorized Officer shall have directed the Trustee to take any such
action or refrain from taking any action, the Beneficial Owner shall
furnish such indemnity as shall be required and, in addition, the
Beneficial Owner shall pay the reasonable compensation of the Trustee for
the services performed or to be performed by it pursuant to such direction.
(g) The Trustee shall manage the business and affairs of MART
in accordance with the terms of the Business Trust Statute; provided,
however, that the Trustee undertakes to perform only such duties as are
specifically set forth in this Agreement and as it may be directed from
time to time by the Board of Managers or an Authorized Officer.
(h) The Trustee may fully rely upon and shall have no liability
in connection with calculations or instructions forwarded to the Trustee by
the Board of Managers or an Authorized Officer. The Trustee shall not have
any obligations to furnish information to any Person if it has not received
such information as it may need from the Board of Managers or an Authorized
Officer.
(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation, at the request, order or direction of the
Board of Managers or an Authorized Officer unless the Beneficial Owner has
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Trustee
(including the reasonable fees and expenses of its counsel) therein or
thereby, including such advances as the Trustee shall request.
(j) In no event whatsoever shall the Trustee be liable for any
representation, warranty, covenant, agreement, indebtedness or other
obligation of MART or any Subtrust.
(k) Prior to taking any action under this Agreement, the
Trustee shall be entitled to receive written instructions of an Authorized
Officer pursuant to this Section 5.3.
(l) The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the instructions of an
Authorized Officer.
(m) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document.
Section 5.4 Furnishing of Documents. The Trustee shall furnish
to the Board of Managers or an Authorized Officer, promptly upon receipt of
a written request therefor, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other
instruments furnished to the Trustee by others.
Section 5.5 Representations and Warranties of the
Trustee. (a) Chase Manhattan Bank Delaware hereby represents and warrants to
the Beneficial Owner that:
(i) it is a banking corporation duly organized, validly
existing and in good standing under the laws of Delaware and has its
principal place of business in the State of Delaware;
(ii) it has full power, authority and legal right to
execute, deliver and perform this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of this Agreement;
(iii) the execution, delivery and performance by it of
this Agreement (A) shall not violate any provision of any law or
regulation of the State of Delaware governing the corporate powers of
the Trustee or any order, writ, judgment or decree of any court,
arbitrator or governmental authority of the State of Delaware
applicable to the Trustee or any of its assets, (B) shall not violate
any provision of the organizational documents of the Trustee, and (C)
shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation
or imposition of any lien on any properties of the Trustee pursuant
to the provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have a materially adverse effect
on the Trustee's performance or ability to perform its duties as
trustee under this Agreement or on the transactions contemplated in
this Agreement;
(iv) the execution, delivery and performance by the
Trustee of this Agreement shall not require the authorization,
consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of,
any governmental authority or agency regulating the banking and
corporate trust activities of the Trustee (other than as may have
been made or received, as the case may be, and other than the filing
of the Certificate of Trust with the Secretary of State); and
(v) this Agreement has been duly executed and delivered by
the Trustee and constitutes the legal, valid and binding agreement of
the Trustee, enforceable against the Trustee in accordance with its
terms, except as enforceability may be limited by insolvency,
receivership, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
Section 5.6 Reliance; Advice of Counsel. (a) The Trustee shall
incur no liability to any Person in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed
by it to be signed by the proper party or parties and need not investigate
any fact or matter in any such document. The Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of
any corporate party as conclusive evidence that such resolution has been
duly adopted by such body and that the same is in full force and effect. As
to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president, the
treasurer or the secretary or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute
full protection to the Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement,
the Trustee: (i) may, at the expense of MART, act directly or through its
agents, attorneys, custodians or nominees pursuant to agreements entered
into with any of them, and the Trustee shall not be liable for the conduct
or misconduct of such agents, attorneys, custodians or nominees if such
agents, attorneys, custodians or nominees shall have been selected by the
Trustee with reasonable care and (ii) may, at the expense of MART, consult
with counsel, accountants and other skilled professionals to be selected
with reasonable care and employed by it. The Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance
with any Opinion of Counsel or advice of such accountants or other such
skilled professionals stating that such action or omission is not contrary
to this Agreement.
Section 5.7 Compensation and Indemnity.
(a) The Trustee shall receive as compensation for its services
hereunder such fees as shall be separately agreed upon from time to time
between the Beneficial Owner and the Trustee. The Trustee shall be entitled
at all times to be reimbursed by the Beneficial Owner for its reasonable
expenses hereunder, including the reasonable expenses and disbursements of
such agents, custodians, nominees, representatives, experts and counsel as
the Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
(b) Subject to the terms of this Agreement, the Beneficial Owner
shall hold harmless the Trustee, its officers, directors, employees,
shareholders and agents (collectively the "Indemnified Persons" or
individually an "Indemnified Person"), against any and all losses,
liabilities, claims, actions, suits, costs, damages, expenses and
liabilities, joint or several (including, but not limited to, any
investigation, reasonable legal and other expenses (including expenses of
investigation) of any kind and nature whatsoever incurred in connection
with, and any amount paid in settlement of any action, suit, proceeding or
claim) (collectively, "Losses") which such Indemnified Persons may become
subject to or liable for by reason of Trustee's acting as trustee under
this Agreement. Notwithstanding the foregoing, the Beneficial Owner shall
not be liable to any Indemnified Person, and shall not be required to
indemnify the Trustee under this Agreement, for any Losses arising out of
the negligence, bad faith or wilful misconduct of such Indemnified Person
or any other Indemnified Person.
Section 5.8 Resignation or Removal of the Trustee. (a) The
Trustee shall not resign without the consent of the Board of Managers
unless (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.11, (ii) the Trustee shall be incapable of acting
or it shall be illegal for the Trustee to act, or (iii) the Trustee shall
have given at least 60 days' prior written notice to the Board of Managers.
(b) The Board of Managers may remove the Trustee (and shall
remove the Trustee in the case of the occurrence of an event described in
clause (i) or (iv)):
(i) if the Trustee shall cease to be eligible in
accordance with the provisions of Section 5.11 and shall fail to
resign after a written request therefor;
(ii) if the Trustee shall be adjudged bankrupt or
insolvent;
(iii) if a receiver or other public officer shall be
appointed or take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation;
(iv) if the Trustee shall otherwise be incapable of
acting or it shall be illegal for the Trustee to act; or
(v) at its discretion.
(c) If the Trustee is removed or if a vacancy exists in the
office of trustee for any reason, the Board of Managers shall promptly
appoint a successor Trustee by written instrument, in duplicate (one copy
of which instrument shall be delivered to the outgoing trustee so removed,
one copy to the successor Trustee). All costs associated with the
resignation or removal of the Trustee and the appointment of a successor
Trustee shall be general expenses of MART. If a successor Trustee shall not
have been appointed within 30 days of such resignation or removal, the
outgoing Trustee may petition a court of competent jurisdiction for the
appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section
5.8 shall not become effective until a written acceptance of appointment is
delivered by the successor Trustee. Any successor Trustee appointed
pursuant to this Section 5.8 shall be eligible to act in such capacity in
accordance with Section 5.11 and, following compliance with the preceding
sentence, shall become fully vested with all the rights, powers, duties and
obligations of the outgoing Trustee under this Agreement, with like effect
as if originally named as trustee.
(e) The outgoing Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all books, records, accounts,
documents, statements and monies held by it under this Agreement. The
outgoing Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required to fully and certainly vest and
confirm in the successor Trustee all such rights, powers, duties and
obligations. The outgoing Trustee shall cooperate with the successor
Trustee to ensure that the successor Trustee has all books, records,
accounts, documents, statements, monies held by it under this Agreement and
any other relevant information in the possession of the outgoing Trustee
relating to the MART Assets.
(f) Upon the appointment and acceptance of a successor Trustee
pursuant to this Section 5.8, such successor Trustee shall file an
amendment to the Certificate of Trust with the Secretary of State
identifying the name and principal place of business of such successor
Trustee in the State of Delaware.
Section 5.9 Merger or Consolidation of the Trustee. Any
corporation or other Person which may be merged, converted or consolidated
with Chase Manhattan Bank Delaware or any corporation resulting from any
merger, conversion or consolidation to which Chase Manhattan Bank Delaware
shall be a party, or any corporation or other Person succeeding to all or
substantially all of the corporate trust business of Chase Manhattan Bank
Delaware, shall be deemed the successor of such Trustee hereunder;
provided, however, that such corporation shall be eligible in accordance
with the provisions of Section 5.11, and without the execution or filing of
any instrument or any further act on the part of any of the parties hereto;
provided, that such corporation shall file an amendment to the Certificate
of Trust with the Secretary of State as provided in Section 5.8(e).
Section 5.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any
MART Assets may then be located, the Beneficial Owner hereby grants the
Trustee the authority and power to execute and deliver all instruments to
appoint one or more Persons to act as co-trustee, jointly with the Trustee,
or as separate trustee or trustees, of all or any part of MART and the MART
Assets, and to vest in such Person, in such capacity, such title to MART,
or any MART Assets and, subject to the other provisions of this Section
5.10, such powers, duties, obligations, rights and trusts as the Trustee
may consider necessary or desirable. No co-trustee or separate trustee
under this Agreement shall be required to be eligible in accordance with
the provisions of Section 5.11; provided, however, that no co-trustee or
separate trustee under this Agreement may be a Manager or any Affiliate
thereof.
(b) Each co-trustee and separate trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such co-trustee or separate trustee
jointly (it being understood that such co-trustee or separate trustee
is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the MART Assets or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such co-trustee or separate trustee, but solely at the
direction of the Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Board of Managers and the Trustee acting
jointly may at any time accept the resignation of or remove any
co-trustee or separate trustee appointed with respect to such MART
Assets.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then co-trustees and
separate trustees, as effectively as if given to each of them. Every
instrument appointing any co-trustee or separate trustee shall refer to
this Agreement and the conditions of this Article V. Each co-trustee and
separate trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Each such instrument shall be filed with the Trustee.
(d) Any co-trustee or separate trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any co-trustee or
separate trustee shall die, become incapable of acting, resign or be
removed or it shall become illegal for such co-trustee or separate trustee
to act, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor Trustee.
Section 5.11 Eligibility Requirements for the Trustee. The
Trustee shall at all times: (a) be a corporation or a banking association
organized under the laws of the United States of America or any state
thereof; (b) have its principal place of business in the State of Delaware;
provided, however, that this clause (b) shall be inapplicable if another
trustee or co-trustee of MART having its principal place of business in
Delaware shall have been appointed; (c) be authorized to exercise corporate
trust powers; (d) be qualified to act as the trustee in those states in
which an Authorized Officer has notified the Trustee in writing that the
MART Assets are located (or have appointed a co-trustee or separate trustee
to act as the trustee in such state); and (e) have, or be a wholly owned
subsidiary of an entity which has, a combined capital and surplus of not
less than $50,000,000.
ARTICLE VI
TERMINATION OF TRUST AGREEMENT
Section 6.1 Termination of Trust Agreement. (a) In accordance
with Section 3808(c) of the Business Trust Statute, MART shall have
perpetual existence. So long as no Securities or Certificates are
outstanding, this Agreement may also terminate and MART may dissolve at the
express written direction of the Board of Managers.
(b) Notwithstanding the foregoing, the compensation and
indemnification provisions of Section 5.7 shall survive the termination of
this Agreement and the dissolution of MART.
(c) Upon termination of MART, the Trustee shall file with the
Secretary of State a certificate of cancellation meeting the requirements
of Section 3810(d) of the Business Trust Statute.
ARTICLE VII
AMENDMENTS
Section 7.1 Amendments. (a) This Agreement may be amended by
the Beneficial Owner and the Trustee at any time; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel addressed to
the Trustee, materially adversely effect the characterization of MART for
federal income tax purposes.
(b) Notwithstanding Section 7.1(a), this Agreement may be
amended at any time by the Trustee (acting at the direction of the Board of
Managers) and the Beneficial Owner to the extent reasonably necessary for
MART and the Subtrusts to obtain the intended characterization for federal
and state income tax purposes.
(c) Notwithstanding Sections 7.1(a) and (b), Sections 3.4 (b),
(c) and (d), Section 6.1(a) and this Section 7.1(c) shall not be amended,
supplemented or otherwise modified or rescinded or affected in any way
until one year and one day after all Securities and Certificates are paid
in full without the unanimous vote of the Board of Managers, including the
affirmative vote of each Independent Manager.
(d) In executing any amendment permitted by this Section 7.1 or
the modification thereby of MART, the Trustee shall be entitled to receive
and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery
of such amendment by the Trustee have been satisfied. The Trustee may, but
shall not be obligated to, enter into any such amendment that affects the
Trustee's own rights, duties, liabilities or immunities under this
Agreement or otherwise.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Direction of the Trustee. Notwithstanding anything
herein to the contrary, the Trustee shall take no action with respect to
entering into, disposing of or making any payment or distribution with
respect to any MART Assets except in accordance with the procedures set
forth herein.
Section 8.2 Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Trustee and the Beneficial
Owner and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy
or claim in MART or the MART Assets or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 8.3 Notices. All demands, notices and communications
upon or to the Beneficial Owner, the Trustee or MART shall be in writing,
personally delivered, sent by telecopier, overnight courier or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt at the respective addresses listed below, or at
such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement from time to time.
(i) In the case of the Beneficial Owner:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the case of the Trustee:
Chase Manhattan Bank Delaware
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-[ ]
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) In the case of MART:
MMCA Auto Receivables Trust
c/o Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
with a copy to the Trustee at the address set forth in
clause (ii) above.
Section 8.4 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other covenants, agreements,
provisions and terms of this Agreement.
Section 8.5 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts may be executed and delivered by facsimile and shall be deemed
to be an original, and all of which counterparts shall constitute but one
and the same instrument.
Section 8.6 Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the Beneficial Owner and the Trustee
and their respective successors and permitted assigns.
Section 8.7 No Petition. Each of the Trustee and the Beneficial
Owner, by entering into this Agreement, hereby covenants and agrees that it
will not at any time institute against MART, or join in any institution
against MART of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law in connection with any obligations relating to
this Agreement or any Securities or Certificates.
Section 8.8 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 8.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT THAT, PURSUANT TO SECTION
3809 OF TITLE 12 OF THE DELAWARE CODE, THE DOCTRINE OF MERGER SHALL NOT BE
APPLICABLE TO MART.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day
and year first above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
By:___________________________________
Name:
Title:
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC.,
as Beneficial Owner
By:___________________________________
Name:
Title:
EXHIBIT A
Form of Certificate of Trust
THIS Certificate of Trust of MMCA Auto Receivables Trust (the "Trust")
is being duly executed and filed by the undersigned, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. C. ss.3801 et
seq.) (the "Act").
1. Name. The name of the business formed hereby is MMCA
Auto Receivables Trust.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Chase Manhattan Bank
Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate
Trust Department.
3. Series Trust. The Trust shall be a series trust and the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against
the assets of such series only, and not against the assets of the Trust
generally.
4. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3810 of the Act.
CHASE MANHATTAN BANK DELAWARE, not on
its individual capacity but solely as trustee
By: ___________________________________
Name:
Title:
EXHIBIT B
MMCA AUTO RECEIVABLES TRUST
Chase Manhattan Bank Delaware
0000 Xxxxx Xxxxxx Xxxxxx
Attention: Corporate Trust Department
October 1, 1999
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Trust
Agreement, dated as of October 1, 1999 (the "Trust Agreement"), between
Mitsubishi Motors Credit of America, Inc., as beneficial owner, and Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined in this
notice have the meanings assigned to them pursuant to Section 1.1 of the
Trust Agreement.
Notice is hereby given pursuant to Section 3.9(l) of the Trust
Agreement that each of the persons named on Schedule A hereto has been duly
appointed and is duly qualified as an officer of MMCA Auto Receivables
Trust as of the date of this notice, holding the office or offices set
forth opposite his or her name. Each of such persons shall be an Authorized
Officer for purposes of the Trust Agreement. The signature of each of such
persons set forth opposite such person's name is a specimen of such
person's genuine signature.
MMCA AUTO RECEIVABLES TRUST
By:________________________________
Name:
Title:
SCHEDULE A
Name Office Signature
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