Exhibit 4.4
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of June 1, 2001
(as the same may be amended, supplemented or otherwise modified from time
to time and in effect, this "Agreement"), is by and among MMCA AUTO OWNER
TRUST 2001-2, a Delaware business trust (the "Issuer"), MITSUBISHI MOTORS
CREDIT OF AMERICA, INC., a Delaware corporation, as administrator (the
"Administrator"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 3.8975% Class A-1 Asset
Backed Notes, Floating Rate Class A-2 Asset Backed Notes, Floating Rate
Class A-3 Asset Backed Notes, Floating Rate Class A-4 Asset Backed Notes
and 5.75% Class B Asset Backed Notes (collectively, the "Notes") pursuant
to the Indenture, dated as of June 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"),
between the Issuer and the Indenture Trustee (terms not defined in this
Agreement shall have the meaning set forth in, or incorporated by reference
into, the Sale and Servicing Agreement or, if not defined therein, in the
Indenture or 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 June 1, 2001 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Sale and Servicing Agreement"), among
the Issuer, Mitsubishi Motors Credit of America, Inc., as servicer, and
MMCA Auto Receivables Trust, as seller (the "Seller"), (ii) a Letter of
Representations, dated June 14, 2001 (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 Agreements and (iv) the Indenture (the Sale and Servicing
Agreement, the Note Depository Agreement, the Interest Rate Swap Agreements
and the Indenture being referred to hereinafter collectively as 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 3.14);
(N) preparing and obtaining documents and instruments
required for the conveyance or transfer of any of the
Issuer's properties or assets (Section 3.10(b));
(O) delivering written notice to the Indenture Trustee and
the Rating Agencies of each Event of Default under the
Indenture and each default by the Issuer, the Servicer or the
Seller under the Sale and Servicing Agreement, by the Seller
or Mitsubishi Motors Credit of America, Inc. under the
Purchase Agreement, or by any Swap Counterparty under the
Interest Rate Swap Agreements (Section 3.19);
(P) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture and preparing an
Officer's Certificate and obtaining the Opinion of Counsel
and the Independent Certificate relating thereto (Section
4.1);
(Q) delivering to the Noteholders and the Note Owners any
Officer's Certificate received from the Issuer regarding the
default in the observance or performance of any material
covenant or agreement of the Issuer made in the Indenture or
the breach of any representation or warranty of the Issuer
made in the Indenture or in any certificate or other writing
delivered pursuant to the Indenture (Sections 5.1 and
7.4(b));
(R) complying with any written direction of the Indenture
Trustee with respect to the sale of the Trust Estate at one
or more public or private sales called and conducted in any
manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(S) preparing and delivering notice to the Noteholders of the
removal of the Indenture Trustee and appointing a successor
Indenture Trustee (Section 6.8);
(T) preparing any written instruments required to confirm
more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection
with the resignation or removal of any co-trustee or separate
trustee (Section 6.10);
(U) furnishing the Indenture Trustee with the names and
addresses of the Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.1);
(V) preparing and, after execution by the Issuer, filing with
the Securities and Exchange Commission (the "Commission"),
any applicable state agencies and the Indenture Trustee,
documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state
agencies and transmitting such summaries, as necessary, to
the Noteholders (Section 7.3);
(W) delivering to the Noteholders of Officer's Certificates
and reports, if any, delivered to the Indenture Trustee
pursuant to Section 3.10 and 3.11 of the Sale and Servicing
Agreement (Section 7.4);
(X) opening one or more accounts in the Issuer's name,
preparing and delivering Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of
funds in the Trust Accounts (Sections 8.2 and 8.3);
(Y) preparing an Issuer Request and Officer's Certificate and
obtaining an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Trust Estate (Sections
8.4 and 8.5);
(Z) preparing Issuer Orders and obtaining Opinions of Counsel
with respect to the execution of supplemental indentures and
mailing to the Noteholders and to the Rating Agencies notices
with respect to such supplemental indentures (Sections 9.1,
9.2 and 9.3);
(AA) executing and delivering new Notes conforming to any
supplemental indenture (Section 9.6);
(BB) notifying the Noteholders and the Rating Agencies of
redemption of the Notes or causing the Indenture Trustee to
provide such notification (Section 10.1);
(CC) preparing and delivering all Officer's Certificates and
Opinions of Counsel and obtaining any Independent
Certificates with respect to any requests by the Issuer to
the Indenture Trustee to take any action under the Indenture
(Section 11.1(a));
(DD) preparing and delivering Officer's Certificates and
obtaining any Independent Certificates necessary for the
release of property from the lien of the Indenture (Section
11.1(b));
(EE) notifying the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the
information required pursuant to Section 11.4 of the
Indenture (Section 11.4);
(FF) preparing and delivering to the Noteholders and the
Indenture Trustee any agreements with respect to alternate
payment and notice provisions (Section 11.6);
(GG) recording the Indenture, if applicable (Section 11.15);
and
(HH) preparing Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture
Trustee under the Indenture (which compensation shall not be
limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Indenture Trustee in accordance with any
provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and
hold them harmless against, any losses, liability or expense
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Indenture; and
(D) indemnify the Owner Trustee (in its individual and trust
capacities) and its agents for, and hold them harmless
against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement, including
the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the
exercise or performance of any of their powers or duties
under the Trust Agreement.
(b) Duties with Respect to the Interest Rate Swap Agreements.
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(i) Promptly following the early termination of an Interest
Rate Swap Agreement due to a Termination Event or an Event of Default
(as such terms are defined in the related 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 such Interest Rate Swap
Agreement with an eligible swap counterparty. If and to the extent any
Swap Termination Payments that are received from a 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 a Swap Counterparty is required to collateralize any
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 a
Swap Counterparty.
(iv) The Administrator shall notify the Swap Counterparties
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 Counterparties'
rights or obligations under the Interest Rate Swap Agreements or
modify the obligations of, or impair the ability of the Issuer to
fully perform any of its obligations under, the Interest Rate Swap
Agreements, the Administrator shall obtain the consent of the Swap
Counterparties prior to the adoption of such amendment or supplement,
provided, the Swap Counterparties' consent to any such amendment or
supplement shall not be unreasonably withheld, and provided further, a
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 any 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 January 15,
2002, a certificate of a Responsible Officer in form and substance
satisfactory to the Owner Trustee as to whether any tax withholding is
then required and, if required, the procedures to be followed with
respect thereto to comply with the requirements of the Code. The
Administrator shall be required to update the letter in each instance
that any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement or any other
Related Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided,
however, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and shall
be, in the Administrator's opinion, no less favorable to the Issuer
than would be available from unaffiliated parties.
(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 sixty (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
sixty (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 (10) days (or, it such default
cannot be cured in such time, shall not give within ten (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 sixty (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 (7)
days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until a successor Administrator shall
have been appointed by the Issuer and such successor Administrator
shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer
pursuant to the Sale and Servicing Agreement, the Administrator shall
immediately resign and such Successor Servicer shall automatically
become the Administrator under this Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a),
the resignation of the Administrator pursuant to Section 8(b) or the
removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to this date of such termination, resignation or
removal. The Administrator shall forthwith upon such termination pursuant
to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation of the Administrator pursuant to Section 8(b) or
the removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company
Attention: Corporate Trust Administration Department
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
Attention: Executive Vice President and Treasurer
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
Attention: Corporate Trust Administration
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
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.
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(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 Counterparties' rights or obligations
under the related 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 related Interest Rate Swap Agreement, then the
Administrator shall obtain the consent of such Swap Counterparty prior to
the adoption of such amendment or supplement, provided each such Swap
Counterparty's consent shall not be unreasonably withheld, and provided,
further, a 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, 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 2001-2
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/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
and Chief Financial Officer
EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for MMCA AUTO OWNER TRUST 2001-2 (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 June 1, 2001 (the "Administration
Agreement"), among the Issuer, Mitsubishi Motors Credit of America, Inc.
and Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee, as the
same may be amended from time to time, and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Issuer
all such documents, reports, filings, instruments, certificates and
opinions as it should be the duty of the Owner Trustee or the Issuer to
prepare, file or deliver pursuant to the Related Agreements, or pursuant to
Section 5.5 of the Trust Agreement, including, without limitation, to
appear for and represent the Owner Trustee and the Issuer in connection
with the preparation, filing and audit of Federal, state and local tax
returns pertaining to the Issuer, and with full power to perform any and
all acts associated with such returns and audits that the Owner Trustee
could perform, including without limitation, the right to distribute and
receive confidential information, defend and assert positions in response
to audits, initiate and defend litigation, and to execute waivers of
restrictions on assessments of deficiencies, consents to the extension of
any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein
shall have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this 14th day of June, 2001.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: ____________________________
Name:
Title:
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally appeared
______________________________, known to me to be the person whose name is
subscribed to the foregoing instruments, and acknowledged to me that he/she
signed the same for the purposes and considerations therein expressed.
Sworn to before me this 14th
day of June, 2001.
_______________________________________
Notary Public - State of Delaware
