Exhibit 4.4
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of March 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 2002-1, a Delaware business trust (the "Issuer"), MITSUBISHI MOTORS
CREDIT OF AMERICA, INC., a Delaware corporation, as administrator (the
"Administrator"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H:
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WHEREAS, the Issuer is issuing 2.00875% Class A-1 Asset
Backed Notes, 3.03% Class A-2 Asset Backed Notes, 4.15% Class A-3 Asset
Backed Notes, Floating Rate Class A-4 Asset Backed Notes, 5.37% Class B
Asset Backed Notes and 6.20% Class C Asset Backed Notes (collectively, the
"Notes") pursuant to the Indenture, dated as of March 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 October 1, 1999,
between the Administrator, as beneficiary, and Chase Manhattan Bank USA,
N.A. (formerly known as Chase Manhattan Bank Delaware), a national banking
association, as trustee);
WHEREAS, the Issuer has entered into certain agreements
in connection with the issuance of the Notes and of certain beneficial
interests in the Issuer, including (i) a Sale and Servicing Agreement,
dated as of March 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, as seller (the "Seller"), (ii) a Letter of
Representations, dated as of the Closing Date (as amended, supplemented or
otherwise modified and in effect from time to time, the "Note Depository
Agreement"), among the Issuer, the Administrator, the Indenture Trustee and
The Depository Trust Company ("DTC") relating to the Notes, (iii) the
Interest Rate Swap Agreement and (iv) the Indenture (collectively, the
"Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer
and the Owner Trustee are required to perform certain duties in connection
with (a) the Notes and the collateral therefor pledged pursuant to the
Indenture (the "Collateral") and (b) the beneficial interests in the Issuer
(the registered holders of such interests being referred to herein as the
"Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have
the Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide
the services required hereby and is willing to perform such services for
the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Duties of the Administrator.
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(a) Duties with Respect to the Related Agreements.
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(i) The Administrator agrees to perform all its duties
as Administrator under the Note Depository
Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties
of the Issuer or the Owner Trustee under the
Related Agreements. The Administrator shall monitor
the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply
with the Issuer's or the Owner Trustee's duties
under the Related Agreements. The Administrator
shall prepare for execution by the Issuer or the
Owner Trustee, or shall cause the preparation by
other appropriate persons of, all such documents,
reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements. In furtherance
of the foregoing, the Administrator shall take all
appropriate action that is the duty of the Issuer
or the Owner Trustee to take pursuant to the
Indenture including, without limitation, such of
the foregoing as are required with respect to the
following matters under the Indenture (references
are to sections of the Indenture):
(A) causing the Note Register to be kept and
notifying the Indenture Trustee of any
appointment of a new Note Registrar and the
location, or change in location, of the Note
Register (Section 2.5);
(B) notifying the Noteholders of the final
principal payment on their Notes (Section
2.8(e));
(C) preparing or obtaining the documents and
instruments required for authentication of
the Notes and delivering the same to the
Indenture Trustee (Section 2.2);
(D) preparing, obtaining or filing of the
instruments, opinions and certificates and
other documents required for the release of
collateral (Section 2.10);
(E) maintaining an office in the Borough of
Manhattan, City of New York, for registration
of transfer or exchange of the Notes (Section
3.2);
(F) causing newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the
instrument specified in the Indenture
regarding funds held in trust (Section 3.3);
(G) directing the Indenture Trustee to deposit
monies with Paying Agents, if any, other than
the Indenture Trustee (Section 3.3);
(H) obtaining and preserving the Issuer's
qualification to do business in each
jurisdiction in which such qualification is
or shall be necessary to protect the validity
and enforceability of the Indenture, the
Notes, the Collateral and each other
instrument and agreement included in the
Trust Estate (Section 3.4);
(I) preparing all supplements and amendments to
the Indenture and all financing statements,
continuation statements, instruments of
further assurance and other instruments and
taking such other action as is necessary or
advisable to protect the Trust Estate
(Section 3.5);
(J) delivering the Opinion of Counsel on the
Closing Date and annually delivering Opinions
of Counsel as to the Trust Estate, and
annually delivering the Officer's Certificate
and certain other statements as to compliance
with the Indenture (Sections 3.6 and 3.9);
(K) identifying to the Indenture Trustee in an
Officer's Certificate a Person with whom the
Issuer has contracted to perform its duties
under the Indenture (Section 3.7(b));
(L) notifying the Indenture Trustee and the
Rating Agencies of an Event of Servicing
Termination under the Sale and Servicing
Agreement and, if such Event of Servicing
Termination arises from the failure of the
Servicer to perform any of its duties under
the Sale and Servicing Agreement with respect
to the Receivables, taking all reasonable
steps available to remedy such failure
(Section 3.7(d));
(M) causing the Servicer to comply with Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, and
4.9 and Article VII of the Sale and Servicing
Agreement (Section 3.13);
(N) preparing and obtaining documents and
instruments required for the conveyance or
transfer of any of the Issuer's properties or
assets (Section 3.10(b));
(O) delivering written notice to the Indenture
Trustee and the Rating Agencies of each Event
of Default under the Indenture and each
default by the Issuer, the Servicer or the
Seller under the Sale and Servicing
Agreement, by the Seller or Mitsubishi Motors
Credit of America, Inc. under the Purchase
Agreement, or by the Swap Counterparty under
the Interest Rate Swap Agreement (Section
3.18);
(P) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture
and preparing an Officer's Certificate and
obtaining the Opinion of Counsel and the
Independent Certificate relating thereto
(Section 4.1);
(Q) delivering to the Noteholders and the Note
Owners any Officer's Certificate received
from the Issuer regarding the default in the
observance or performance of any material
covenant or agreement of the Issuer made in
the Indenture or the breach of any
representation or warranty of the Issuer made
in the Indenture or in any certificate or
other writing delivered pursuant to the
Indenture (Sections 5.1 and 7.4(b));
(R) complying with any written direction of the
Indenture Trustee with respect to the sale of
the Trust Estate at one or more public or
private sales called and conducted in any
manner permitted by law if an Event of
Default shall have occurred and be continuing
(Section 5.4);
(S) preparing and delivering notice to the
Noteholders of the removal of the Indenture
Trustee and appointing a successor Indenture
Trustee (Section 6.8);
(T) preparing any written instruments required to
confirm more fully the authority of any
co-trustee or separate trustee and any
written instruments necessary in connection
with the resignation or removal of any
co-trustee or separate trustee (Section
6.10);
(U) furnishing the Indenture Trustee with the
names and addresses of the Noteholders during
any period when the Indenture Trustee is not
the Note Registrar (Section 7.1);
(V) preparing and, after execution by the Issuer,
filing with the Securities and Exchange
Commission (the "Commission"), any applicable
state agencies and the Indenture Trustee,
documents required to be filed on a periodic
basis with, and summaries thereof as may be
required by rules and regulations prescribed
by, the Commission and any applicable state
agencies and transmitting such summaries, as
necessary, to the Noteholders (Section 7.3);
(W) delivering to the Noteholders of Officer's
Certificates and reports, if any, delivered
to the Indenture Trustee pursuant to Section
3.10 and 3.11 of the Sale and Servicing
Agreement (Section 7.4);
(X) opening one or more accounts in the Issuer's
name, preparing and delivering Issuer Orders,
Officer's Certificates and Opinions of
Counsel and all other actions necessary with
respect to investment and reinvestment of
funds in the Trust Accounts (Sections 8.2 and
8.3);
(Y) preparing an Issuer Request and Officer's
Certificate and obtaining an Opinion of
Counsel and Independent Certificates, if
necessary, for the release of the Trust
Estate (Sections 8.4 and 8.5);
(Z) preparing Issuer Orders and obtaining
Opinions of Counsel with respect to the
execution of supplemental indentures and
mailing to the Noteholders and to the Rating
Agencies notices with respect to such
supplemental indentures (Sections 9.1, 9.2
and 9.3);
(AA) executing and delivering new Notes conforming
to any supplemental indenture (Section 9.6);
(BB) notifying the Noteholders and the Rating
Agencies of redemption of the Notes or
causing the Indenture Trustee to provide such
notification (Section 10.1);
(CC) preparing and delivering all Officer's
Certificates and Opinions of Counsel and
obtaining any Independent Certificates with
respect to any requests by the Issuer to the
Indenture Trustee to take any action under
the Indenture (Section 11.1(a));
(DD) preparing and delivering Officer's
Certificates and obtaining any Independent
Certificates necessary for the release of
property from the lien of the Indenture
(Section 11.1(b));
(EE) notifying the Rating Agencies, upon the
failure of the Indenture Trustee to give such
notification, of the information required
pursuant to Section 11.4 of the Indenture
(Section 11.4);
(FF) preparing and delivering to the Noteholders
and the Indenture Trustee any agreements with
respect to alternate payment and notice
provisions (Section 11.6);
(GG) recording the Indenture, if applicable
(Section 11.15); and
(HH) preparing Definitive Notes in accordance with
the instructions of the Clearing Agency
(Section 2.13).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services
rendered by the Indenture Trustee under the
Indenture (which compensation shall not be
limited by any provision of law in regard to
the compensation of a trustee of an express
trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee
upon its request for all reasonable expenses,
disbursements and advances incurred or made
by the Indenture Trustee in accordance with
any provision of the Indenture (including the
reasonable compensation, expenses and
disbursements of its agents and counsel),
except any such expense, disbursement or
advance as may be attributable to its
negligence or bad faith;
(C) indemnify the Indenture Trustee and its
agents for, and hold them harmless against,
any losses, liability or expense incurred
without negligence or bad faith on their
part, arising out of or in connection with
the acceptance or administration of the
transactions contemplated by the Indenture,
including the reasonable costs and expenses
of defending themselves against any claim or
liability in connection with the exercise or
performance of any of their powers or duties
under the Indenture; and
(D) indemnify the Owner Trustee (in its
individual and trust capacities) and its
agents for, and hold them harmless against,
any losses, liability or expense incurred
without negligence or bad faith on their
part, arising out of or in connection with
the acceptance or administration of the
transactions contemplated by the Trust
Agreement, including the reasonable costs and
expenses of defending themselves against any
claim or liability in connection with the
exercise or performance of any of their
powers or duties under the Trust Agreement.
(b) Duties with Respect to the Interest Rate Swap Agreement.
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(i) Promptly following the early termination of the
Interest Rate Swap Agreement due to a Termination
Event or an Event of Default (as such terms are
defined in the Interest Rate Swap Agreement)
(unless the Indenture Trustee is selling or
liquidating the Trust Estate), the Administrator
agrees to use reasonable efforts to cause the
Issuer to enter into a replacement interest rate
swap agreement on terms similar to those of the
Interest Rate Swap Agreement with an eligible swap
counterparty. If and to the extent any Swap
Termination Payments that are received from the
Swap Counterparty are to be applied as an initial
payment to a replacement Swap Counterparty, the
Administrator shall direct the Indenture Trustee to
retain such amounts and shall provide the Indenture
Trustee with written instructions regarding the
application and payment of such amounts.
(ii) If the Swap Counterparty is required to
collateralize the Interest Rate Swap transaction,
the Administrator shall send written instructions
to the Indenture Trustee to establish individual
collateral accounts and to hold any securities
deposited therein in trust and invest any cash
amounts therein in accordance with the provisions
of the Interest Rate Swap Agreement.
(iii) The Administrator shall notify the Indenture
Trustee of the occurrence or existence of a
default, event of default or similar condition or
event with respect to any credit support provider
for the Swap Counterparty.
(iv) The Administrator shall notify the Swap
Counterparty of any proposed amendment or
supplement to this Agreement or to any of the
Indenture, the Purchase Agreement, the Sale and
Servicing Agreement or the Trust Agreement. If such
proposed amendment or supplement would adversely
affect any of the Swap Counterparty's rights or
obligations under the Interest Rate Swap Agreement
or modify the obligations of, or impair the ability
of the Issuer to fully perform any of its
obligations under, the Interest Rate Swap
Agreement, the Administrator shall obtain the
consent of the Swap Counterparty prior to the
adoption of such amendment or supplement, provided,
the Swap Counterparty's consent to any such
amendment or supplement shall not be unreasonably
withheld, and provided further, the Swap
Counterparty's consent will be deemed to have been
given if the Swap Counterparty does not object in
writing within ten Business Days of receipt of a
written request for such consent and in accordance
with the terms of the Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of
any proposed amendment or supplement to the
Interest Rate Swap Agreement, the Administrator
shall provide the Rating Agencies with a copy of
the amendment or supplement. Unless the amendment
or supplement clarifies any term or provision,
corrects any inconsistency, cures any ambiguity, or
corrects any typographical error in the Interest
Rate Swap Agreement, an amendment or supplement to
the Interest Rate Swap Agreement will be effective
only after satisfaction of the Rating Agency
Condition.
(c) Additional Duties.
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(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the
preparation by other appropriate persons of, and
shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings,
instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the
Related Agreements or Section 5.5 of the Trust
Agreement, and at the request of the Owner Trustee
shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take
pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall, on behalf of
itself and of the Issuer, execute and deliver to
the Administrator and to each successor
Administrator appointed pursuant to the terms
hereof, one or more powers of attorney
substantially in the form of Exhibit A hereto,
appointing the Administrator the attorney-in-fact
of the Owner Trustee and the Issuer for the purpose
of executing on behalf of the Owner Trustee and the
Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to
Section 5 of this Agreement, and in accordance with
the directions of the Owner Trustee, the
Administrator shall administer, perform or
supervise the performance of such other activities
in connection with the Collateral (including the
Related Agreements) as are not covered by any of
the foregoing provisions and as are expressly
requested by the Owner Trustee and are reasonably
within the capability of the Administrator. Such
responsibilities shall include obtaining and
maintaining any licenses required to be obtained or
maintained by the Issuer under the Pennsylvania
Motor Vehicle Sales Finance Act. In addition, the
Administrator shall promptly notify the Indenture
Trustee and the Owner Trustee in writing of any
amendment to the Pennsylvania Motor Vehicle Sales
Finance Act that would affect the duties or
obligations of the Indenture Trustee or the Owner
Trustee under any Basic Document and shall assist
the Indenture Trustee or the Owner Trustee in
obtaining and maintaining any licenses required to
be obtained or maintained by the Indenture Trustee
or the Owner Trustee thereunder. In connection
therewith, the Administrator shall cause the Seller
to pay all fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the
Administrator shall be responsible for promptly
notifying the Owner Trustee in the event that any
withholding tax is imposed on the Issuer's payments
(or allocations of income) to a Certificateholder
as contemplated in Section 5.2(c) of the Trust
Agreement. Any such notice shall specify the amount
of any withholding tax required to be withheld by
the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the
Administrator shall be responsible for performing
the duties of the Issuer or the Owner Trustee set
forth in Section 5.2(b) and (c), Section 5.5(a),
(b), (c), (d) and (e), the second paragraph of
Section 5.5 and Section 5.6(a) of the Trust
Agreement with respect to, among other things,
accounting and reports to the Certificateholders.
(iv) The Administrator will provide, prior to April 15,
2002, a certificate of a Responsible Officer in
form and substance satisfactory to the Owner
Trustee as to whether any tax withholding is then
required and, if required, the procedures to be
followed with respect thereto to comply with the
requirements of the Code. The Administrator shall
be required to update the letter in each instance
that any additional tax withholding is subsequently
required or any previously required tax withholding
shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the
Trust Agreement required to be performed in
connection with the resignation or removal of the
Owner Trustee, and any other duties expressly
required to be performed by the Administrator under
the Trust Agreement or any other Related Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the
Administrator may enter into transactions or
otherwise deal with any of its affiliates;
provided, however, that the terms of any such
transactions or dealings shall be in accordance
with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available
from unaffiliated parties.
(d) Non-Ministerial Matters.
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(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial,
the Administrator shall not take any action unless
within a reasonable time before the taking of such
action, the Administrator shall have notified the
Owner Trustee of the proposed action and the Owner
Trustee shall not have withheld consent or provided
an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action,
claim or lawsuit brought by or against the
Issuer (other than in connection with the
collection of the Receivables or Permitted
Investments);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture
or the appointment of successor
Administrators or Successor Servicers, or the
consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee
of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated
to, and shall not, (x) make any payments to the
Noteholders under the Related Agreements or (y)
take any other action that the Issuer directs the
Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder,
which books of account and records shall be accessible for
inspection by the Issuer, the Owner Trustee and the Indenture
Trustee at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as
reimbursement for its expenses related thereto, the Administrator
shall be entitled to $500 per month which shall be solely an
obligation of the Seller.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer
shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor
and shall not be subject to the supervision of the Issuer or the
Owner Trustee with respect to the manner in which it accomplishes
the performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no
authority to act for or represent the Issuer or the Owner Trustee
in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability
on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar
capacity as an administrator for any other person or entity even
though such person or entity may engage in business activities
similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this
Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign its duties hereunder by providing the Issuer with
at least 60 days' prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove
the Administrator without cause by providing the
Administrator with at least 60 days' prior written
notice; provided, however, that in the event the Servicer
is removed as the Servicer pursuant to Section 8.1 of the
Sale and Servicing Agreement upon the occurrence of a
Event of Servicing Termination, the Servicer shall be
simultaneously removed as Administrator hereunder.
(d) Subject to Sections 8(e) and 8(f), at the sole option of
the Issuer, the Administrator may be removed immediately
upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of
such default, shall not cure such default within ten days
(or, it such default cannot be cured in such time, shall
not give within ten days such assurance of cure as shall
be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree
or order shall not have been vacated within 60
days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar
official for the Administrator or any substantial
part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, shall consent
to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any
substantial part of its property, shall consent to
the taking of possession by any such official of
any substantial part of its property, shall make
any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they
become due.
The Administrator agrees that if any of the events
specified in clauses (ii) or (iii) of this Section
8 shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within
seven days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant
to this Section shall be effective until a successor
Administrator shall have been appointed by the Issuer and
such successor Administrator shall have agreed in writing
to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency
Condition with respect to the proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor
Servicer pursuant to the Sale and Servicing Agreement,
the Administrator shall immediately resign and such
Successor Servicer shall automatically become the
Administrator under this Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to
Section 8(a), the resignation of the Administrator pursuant to
Section 8(b) or the removal of the Administrator pursuant to
Section 8(c) or (d), the Administrator shall be entitled to be
paid all fees and reimbursable expenses accruing to it to this
date of such termination, resignation or removal. The
Administrator shall forthwith upon such termination pursuant to
Section 8(a) deliver to the Issuer all property and documents of
or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation of the
Administrator pursuant to Section 8(b) or the removal of the
Administrator pursuant to Section 8(c) or (d), the Administrator
shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
MMCA Auto Owner Trust 2002-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided
to the other parties in writing. Any notice required to
be in writing hereunder shall be deemed given if such
notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided
above.
11. Amendments.
(a) This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with
the written consent of the Owner Trustee and the consent
of the Certificateholder (which consent shall not be
unreasonably withheld) but without the consent of the
Noteholders, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the
provisions of this Agreement in order to: (i) cure any
ambiguity, to revise, correct or supplement any
provisions herein, (ii) enable the transfer to the Issuer
of all or any portion of the Receivables to be
derecognized under GAAP, (iii) enable the transfer to the
Issuer of all or any portion of the Receivables to be
derecognized by MMCA under GAAP, (iv) enable the Issuer
to avoid becoming a member of the Servicer's consolidated
group under GAAP or (v) enable the Transferor or any
Affiliate of the Transferor or any of their Affiliates to
otherwise comply with or obtain more favorable treatment
under any law or regulation or any accounting rule or
principle; provided that such amendment will not, as set
forth in an Opinion of Counsel satisfactory to the
Indenture Trustee and the Owner Trustee, materially and
adversely affect the interest of any Noteholder or
Certificateholder; provided, further, that no such
amendment shall be inconsistent with the derecognition of
the Receivables by MMCA under GAAP or cause the Issuer to
become a member of MMCA's consolidated group under GAAP.
This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written
consent of the Owner Trustee and the holders of Notes
evidencing at least a majority of the Outstanding Amount
of the Notes, voting as a group, and the holders of
Certificates evidencing at least a majority of the
Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying
in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such
amendment may increase or reduce in any manner the amount
of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or
the Certificateholders or reduce the aforesaid
percentages of the holders of Notes and Certificates
which are required to consent to any such amendment,
without the consent of the holders of all the outstanding
Notes and Certificates. Notwithstanding the foregoing,
the Administrator may not amend this Agreement without
the consent of the Seller, which permission shall not be
unreasonably withheld.
(b) Upon any proposed amendment or supplement to this
Agreement pursuant to this Section 11, if such proposed
amendment or supplement would adversely affect any of the
Swap Counterparty's rights or obligations under the
Interest Rate Swap Agreement or modify the obligations
of, or impair the ability of the Issuer to fully perform
any of its obligations under, the Interest Rate Swap
Agreement, then the Administrator shall obtain the
consent of the Swap Counterparty prior to the adoption of
such amendment or supplement, provided the Swap
Counterparty's consent shall not be unreasonably
withheld, and provided, further, the Swap Counterparty's
consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten
Business Days of receipt of a written request for such
consent and in accordance with the terms of the Interest
Rate Swap Agreement.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof.
Any assignment without such consent and satisfaction shall be null
and void. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the assignee hereunder in the
same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer or the Owner
Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the
Administrator; provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
14. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect
the meaning, construction or affect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which
together shall constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
17. Not Applicable to Mitsubishi Motors Credit of America, Inc. in
Other Capacities. Nothing in this Agreement shall affect any
obligation Mitsubishi Motors Credit of America, Inc. may have in
any capacity other than as Administrator under this Agreement.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the
contrary, this instrument has been countersigned by
Wilmington Trust Company not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its
individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer
hereunder, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by Bank
of Tokyo-Mitsubishi Trust Company not in its individual
capacity but solely as Indenture Trustee and in no event
shall Bank of Tokyo-Mitsubishi Trust Company have any
liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it
were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers
pursuant to Section 8.2 of the Sale and Servicing Agreement, to
enforce the provisions of Section 8.2 with respect to the
appointment of a successor Servicer. Such successor Servicer
shall, upon compliance with the last sentence of Section 8.2 of
the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture
Trustee shall become such successor Administrator, the Indenture
Trustee shall not be required to perform any obligations or duties
or conduct any activities as successor Administrator that would be
prohibited by law and not within the banking and trust powers of
the Indenture Trustee. In such event, the Indenture Trustee may
appoint a sub-administrator to perform such obligations and
duties.
21. No Petition; Subordination; Claims Against Seller.
(a) Notwithstanding any prior termination of this Agreement,
the Seller, the Administrator, the Owner Trustee and the
Indenture Trustee shall not, prior to the date which is
one year and one day after the termination of this
Agreement with respect to the Issuer, acquiesce, petition
or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the
purpose of commencing or sustaining a case against the
Issuer under any Federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation
of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement,
(x) the Issuer, the Administrator, the Owner Trustee and
the Indenture Trustee shall not, prior to the date which
is one year and one day after the termination of this
Agreement with respect to the Seller, acquiesce, petition
or otherwise invoke or cause the Seller to invoke the
process of any court or government authority for the
purpose of commencing or sustaining a case against the
Seller under any Federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation
of the affairs of the Seller; (y) any claim that the
Issuer, the Administrator, the Owner Trustee and the
Indenture Trustee may have at any time against the
Subtrust Assets of any Subtrust unrelated to the Notes,
the Certificates or the Receivables, and any claim that
they may have at any time against the Seller that they
may seek to enforce against the Subtrust Assets of any
Subtrust unrelated to the Notes, the Certificates or the
Receivables, shall be subordinate to the payment in full,
including post-petition interest, in the event that the
Seller becomes a debtor or debtor in possession in a case
under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in
effect or otherwise subject to any insolvency,
reorganization, liquidation, rehabilitation or other
similar proceedings, of the claims of the holders of any
Securities related to such unrelated Subtrust and the
holders of any other notes, bonds, contracts or other
obligations that are related to such unrelated Subtrust
and (z) the Issuer, the Administrator, the Owner Trustee
and the Indenture Trustee hereby irrevocably make the
election afforded by Title 00 Xxxxxx Xxxxxx Code Section
1111(b)(1)(A)(i) to secured creditors to receive the
treatment afforded by Title 00 Xxxxxx Xxxxxx Code Section
1111(b)(2) with respect to any secured claim that they
may have at any time against the Depositor. The
obligations of the Seller under this Agreement are
limited to the related Subtrust and the related Subtrust
Assets.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the day and year first
above written.
MMCA AUTO OWNER TRUST 2002-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
----------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
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 Manger
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 2002-1 (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 March 1, 2002 (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 __________, 2002.
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 __________, 2002.
----------------------------------
Notary Public - State of Delaware
