Exhibit 4.4
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 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 2002-4, 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 1.76375% Class A-1 Asset
Backed Notes, 1.92% Class A-2 Asset Backed Notes, 2.55% Class A-3 Asset
Backed Notes, 3.05% Class A-4 Asset Backed Notes, 3.82% Class B Asset
Backed Notes and 4.56% Class C Asset Backed Notes (collectively, the
"Notes") pursuant to the Indenture, dated as of October 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 October 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 and (iii) the
Indenture (collectively, the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer
and the Owner Trustee are required to perform certain duties in connection
with (a) the Notes and the collateral therefor pledged pursuant to the
Indenture (the "Collateral") and (b) the beneficial interests in the Issuer
(the registered holders of such interests being referred to herein as the
"Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have
the Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide
the services required hereby and is willing to perform such services for
the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Related Agreements.
(i) The Administrator agrees to perform all its duties as
Administrator under the Note Depository Agreement. In addition,
the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the Related
Agreements. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary
to comply with the Issuer's or the Owner Trustee's duties under
the Related Agreements. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee, or shall cause the
preparation by other appropriate persons of, all such documents,
reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Related Agreements. In furtherance
of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Owner Trustee to take
pursuant to the Indenture including, without limitation, such of
the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the
Indenture):
(A) causing the Note Register to be kept and
notifying the Indenture Trustee of any
appointment of a new Note Registrar and the
location, or change in location, of the Note
Register (Section 2.5);
(B) notifying the Noteholders of the final principal
payment on their Notes (Section 2.8(e));
(C) preparing or obtaining the documents and
instruments required for authentication of the
Notes and delivering the same to the Indenture
Trustee (Section 2.2);
(D) preparing, obtaining or filing of the
instruments, opinions and certificates and other
documents required for the release of collateral
(Section 2.10);
(E) maintaining an office in the Borough of
Manhattan, City of New York, for registration of
transfer or exchange of the Notes (Section 3.2);
(F) causing newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding
funds held in trust (Section 3.3);
(G) directing the Indenture Trustee to deposit
monies with Paying Agents, if any, other than
the Indenture Trustee (Section 3.3);
(H) obtaining and preserving the Issuer's
qualification to do business in each
jurisdiction in which such qualification is or
shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the
Collateral and each other instrument and
agreement included in the Trust Estate (Section
3.4);
(I) preparing all supplements and amendments to the
Indenture and all financing statements,
continuation statements, instruments of further
assurance and other instruments and taking such
other action as is necessary or advisable to
protect the Trust Estate (Section 3.5);
(J) delivering the Opinion of Counsel on the Closing
Date and annually delivering Opinions of Counsel
as to the Trust Estate, and annually delivering
the Officer's Certificate and certain other
statements as to compliance with the Indenture
(Sections 3.6 and 3.9);
(K) identifying to the Indenture Trustee in an
Officer's Certificate a Person with whom the
Issuer has contracted to perform its duties
under the Indenture (Section 3.7(b));
(L) notifying the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination
under the Sale and Servicing Agreement and, if
such Event of Servicing Termination arises from
the failure of the Servicer to perform any of
its duties under the Sale and Servicing
Agreement with respect to the Receivables,
taking all reasonable steps available to remedy
such failure (Section 3.7(d));
(M) causing the Servicer to comply with Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, and 4.9
and Article VII of the Sale and Servicing
Agreement (Section 3.13);
(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 (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) 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 November
15, 2002, a certificate of a Responsible Officer in form and
substance satisfactory to the Owner Trustee as to whether any tax
withholding is then required and, if required, the procedures to
be followed with respect thereto to comply with the requirements
of the Code. The Administrator shall be required to update the
letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding
shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust
Agreement or any other Related Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions or otherwise deal with any of its
affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable
time before the taking of such action, the Administrator shall
have notified the Owner Trustee of the proposed action and the
Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer (other
than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture
Trustees pursuant to the Indenture or the
appointment of successor Administrators or
Successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not, (x) make any payments to the Noteholders under the Related
Agreements or (y) take any other action that the Issuer directs
the Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder,
which books of account and records shall be accessible for inspection by
the Issuer, the Owner Trustee and the Indenture Trustee at any time during
normal business hours.
3. Compensation. As compensation for the performance of
the Administrator's obligations under this Agreement and, as reimbursement
for its expenses related thereto, the Administrator shall be entitled to
$500 per month which shall be solely an obligation of the Seller.
4. Additional Information to be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall
reasonably request.
5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Owner Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Administrator and either of the Issuer or the
Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority
to incur any obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as
an administrator for any other person or entity even though such person or
entity may engage in business activities similar to those of the Issuer,
the Owner Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this Agreement shall
automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator
may resign its duties hereunder by providing the Issuer with at least 60
days' prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may
remove the Administrator without cause by providing the Administrator with
at least 60 days' prior written notice; provided, however, that in the
event the Servicer is removed as the Servicer pursuant to Section 8.1 of
the Sale and Servicing Agreement upon the occurrence of a Event of
Servicing Termination, the Servicer shall be simultaneously removed as
Administrator hereunder.
(d) Subject to Sections 8(e) and 8(f), at the sole option
of the Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within 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 2002-4
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
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. This Agreement may be amended from time
to time by a written amendment duly executed and delivered by the Issuer,
the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee and the consent of the Certificateholder (which consent
shall not be unreasonably withheld) but without the consent of the
Noteholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement in order to:
(i) cure any ambiguity, to revise, correct or supplement any provisions
herein, (ii) enable the transfer to the Issuer of all or any portion of the
Receivables to be derecognized under GAAP, (iii) enable the transfer to the
Issuer of all or any portion of the Receivables to be derecognized by MMCA
under GAAP, (iv) enable the Issuer to avoid becoming a member of the
Servicer's consolidated group under GAAP or (v) enable the Transferor or
any Affiliate of the Transferor or any of their Affiliates to otherwise
comply with or obtain more favorable treatment under any law or regulation
or any accounting rule or principle; provided that such amendment will not,
as set forth in an Opinion of Counsel satisfactory to the Indenture Trustee
and the Owner Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder; provided, further, that no such amendment
shall be inconsistent with the derecognition of the Receivables by MMCA
under GAAP or cause the Issuer to become a member of MMCA's consolidated
group under GAAP. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the
Owner Trustee and the holders of Notes evidencing at least a majority of
the Outstanding Amount of the Notes, voting as a group, and the holders of
Certificates evidencing at least a majority of the Certificate Balance for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment may increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit
of the Noteholders or the Certificateholders or reduce the aforesaid
percentages of the holders of Notes and Certificates which are required to
consent to any such amendment, without the consent of the holders of all
the outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the consent of the
Seller, which permission shall not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously
consented to in writing by the Issuer and the Owner Trustee and subject to
the satisfaction of the Rating Agency Condition in respect thereof. Any
assignment without such consent and satisfaction shall be null and void. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator
is bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer or the
Owner Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the Administrator;
provided that such successor organization executes and delivers to the
Issuer, the Owner Trustee and the Indenture Trustee an agreement in which
such corporation or other organization agrees to be bound hereunder by the
terms of said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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 2002-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ X. Xxxxxxxxx
------------------------------------
Name: X. Xxxxxxxxx
Title: Trust Officer
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Administrator
By: /s/ C. A. Xxxxxxx
-------------------------------------
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
