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AMENDED AND RESTATED TRUST AGREEMENT
dated as of October 1, 1999
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Beneficial Owner,
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..............................................1
Section 1.2 Other Definitional Provisions............................5
ARTICLE II
ORGANIZATION
Section 2.1 Name and Office..........................................5
Section 2.2 Purposes and Powers......................................5
Section 2.3 Confirmation of Appointment of the Trustee...............7
Section 2.4 Initial Assets...........................................7
Section 2.5 Declaration of Trust.....................................7
Section 2.6 Situs of Trust...........................................7
Section 2.7 Title to Trust Property..................................8
Section 2.8 Representations and Warranties of MMCA...................8
Section 2.9 Conduct of Business by MART..............................9
ARTICLE III
MANAGEMENT OF MART; THE BOARD OF MANAGERS; OFFICERS
Section 3.1 General Management of MART..............................11
Section 3.2 Appointment and Term....................................11
Section 3.3 Number; Independent Managers............................11
Section 3.4 Standard of Care; Independent Managers..................11
Section 3.5 Resignation.............................................15
Section 3.6 Removal of Managers.....................................15
Section 3.7 Filling of Vacancies....................................15
Section 3.8 Managers' Compensation..................................16
Section 3.9 Liability of Managers...................................16
Section 3.10 Officers................................................16
Section 3.11 Liability of Authorized Officers........................18
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ARTICLE IV
THE SUBTRUSTS
Section 4.1 Beneficial Ownership....................................19
Section 4.2 Subtrusts...............................................19
ARTICLE V
THE TRUSTEE
Section 5.1 Duties of the Trustee...................................21
Section 5.2 Acceptance of Trusts and Duties.........................22
Section 5.3 Action upon Instruction by the Board of Managers or
Authorized Officers; Rights of the Trustee..............23
Section 5.4 Furnishing of Documents.................................26
Section 5.5 Representations and Warranties of the Trustee...........26
Section 5.6 Reliance; Advice of Counsel.............................27
Section 5.7 Compensation and Indemnity..............................28
Section 5.8 Resignation or Removal of the Trustee...................28
Section 5.9 Merger or Consolidation of the Trustee..................30
Section 5.10 Appointment of Co-Trustee or Separate Trustee...........30
Section 5.11 Eligibility Requirements for the Trustee................31
ARTICLE VI
TERMINATION OF TRUST AGREEMENT
Section 6.1 Termination of Trust Agreement..........................32
ARTICLE VII
AMENDMENTS
Section 7.1 Amendments..............................................32
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Direction of the Trustee................................33
Section 8.2 Limitations on Rights of Others.........................33
Section 8.3 Notices.................................................33
Section 8.4 Severability of Provisions..............................34
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Page
Section 8.5 Counterparts............................................34
Section 8.6 Successors and Assigns..................................34
Section 8.7 No Petition.............................................35
Section 8.8 Headings................................................35
Section 8.9 Governing Law...........................................35
EXHIBITS
Exhibit A Form of Certificate of Trust............................A-1
Exhibit B Form of Notice to Trustee Pursuant to
Section 3.10(l).........................................B-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as of October 1,
1999 (as the same may be further amended and restated, amended, supplemented or
otherwise modified and in effect from time to time in accordance with the terms
hereof, this "Agreement"), between MITSUBISHI MOTORS CREDIT OF AMERICA, INC., a
Delaware corporation ("MMCA"), as beneficial owner under this Agreement (in such
capacity, together with any successor or assign, the "Beneficial Owner"), and
CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation ("Chase Manhattan
Bank Delaware"), as trustee under this Agreement (in such capacity, or permitted
assign, the "Trustee");
WHEREAS, MMCA and the Trustee entered into a trust agreement, dated and
effective as of May 19, 1999 (the "Original Agreement"), pursuant to which (i)
MMCA Auto Receivables Trust, a Delaware business trust ("MART"), was created and
(ii) Chase Manhattan Bank Delaware was appointed as Trustee; and
WHEREAS, MMCA and the Trustee intend to amend and restate, on the terms and
conditions set forth herein, the Original Agreement to more fully set forth the
terms of MART and the rights and obligations of the parties hereto.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person shall mean the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Authorized Officer" shall have the meaning set forth in Section 3.10(d).
"Beneficial Owner" shall mean MMCA in its capacity as the exclusive
beneficial owner of MART and its successors and assigns in such capacity.
"Board of Managers" shall have the meaning set forth in Section 3.1.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day
on which banking institutions or trust companies in New York, New York,
Wilmington, Delaware or Los Angeles, California shall be authorized or obligated
by law, regulation or executive order to be closed.
"Business Trust Statute" shall have the meaning set forth in Section 2.5.
"Certificate of Trust" shall mean the Certificate of Trust in substantially
the form of Exhibit A hereto filed for MART pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificates" shall have the meaning set forth in Section 2.2(d).
"Chief Accounting Officer" shall have the meaning set forth in Section
3.10(c).
"Chief Executive Officer" shall have the meaning set forth in Section
3.10(a).
"Chief Financial Officer" shall have the meaning set forth in Section
3.10(b).
"Commission" shall mean the Securities and Exchange Commission.
"Contracts" shall have the meaning set forth in Section 2.2(a).
"Corporate Trust Office" shall mean, with respect to the Trustee, the
principal corporate trust office of the Trustee located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, or at such other address as the Trustee may designate from
time to time by notice to the Board of Managers, or the principal corporate
trust office of any successor Trustee (the address of which the successor
Trustee will notify the Board of Managers).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
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"Indemnified Person" and "Indemnified Persons" shall have the meanings set
forth in Section 5.7(b).
"Indentures" shall have the meaning set forth in Section 2.2(e).
"Independent Manager" shall have the meaning set forth in Section 3.4(c).
"Insolvency Event" shall mean, with respect to any Person, (i) the making
of a general assignment for the benefit of creditors, (ii) the filing of a
voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or insolvent,
or having had entered against such Person an order for relief in any bankruptcy
or insolvency proceeding, (iv) the filing by such Person of a petition or answer
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, (v) the
filing by such Person of an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against such Person in any
proceeding specified in clause (vii) below, (vi) seeking, consenting to or
acquiescing in the appointment of a trustee, receiver or liquidator of such
Person or of all or any substantial part of the assets of such Person or (vii)
the failure to obtain dismissal within 60 days of the commencement of any
proceeding against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, or the entry of any order appointing a trustee, liquidator or
receiver of such Person or of such Person's assets or any substantial portion
thereof.
"Manager" shall have the meaning set forth in Section 3.2.
"MART" shall mean MMCA Auto Receivables Trust, a business trust established
pursuant to this Agreement and the Business Trust Statute, and its successors
and assigns.
"MART Assets" shall mean, as of any date of determination, all right, title
and interest of MART in, to and under the Contracts and any related property,
Certificates representing beneficial interests therein and all other property
acquired by MART from MMCA or any other Person from time to time as of such date
of determination and all proceeds thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc., a Delaware
corporation, and its successor and assigns.
"Opinion of Counsel" shall mean a written opinion of counsel of MART, who
may be an employee of MART or any Affiliate of MART or outside counsel to MART
or any Affiliate of MART.
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"Original Agreement" shall have the meaning set forth in the recitals of
this Agreement.
"Person" shall mean a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, limited liability partnership, trust, unincorporated
organization, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Pooling Agreements" shall have the meaning set forth in Section 2.2(c).
"Rating Agency" shall mean any nationally recognized statistical rating
organization.
"Responsible Officer" shall mean, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee with direct responsibility for
the administration of this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities" shall have the meaning set forth in Section 2.2(f).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subtrust" shall have the meaning set forth in Section 4.2(a).
"Subtrust Assets" shall have the meaning set forth in Section 4.2(a).
"Subtrust Designation Certificate" shall have the meaning set forth in
Section 4.2(c).
"Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware banking
corporation, acting not in its individual capacity but solely as trustee under
this Agreement, and its permitted successors and assigns in such capacity.
"Trusts" shall have the meaning set forth on Section 2.2(c).
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Section 1.2 Other Definitional Provisions.
(a) All terms in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) The words "hereof", "herein", "hereunder", and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(c) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.1 Name and Office. The trust created hereby shall be known as
"MMCA Auto Receivables Trust" or "MART", in which name the Board of Managers may
conduct the business of MART, make and execute contracts and other instruments
on behalf of MART and xxx and be sued. The office of MART shall be at the
address for MART set forth in Section 8.3 or at such other address as an
Authorized Officer may designate by written notice to the Trustee from time to
time.
Section 2.2 Purposes and Powers. The purpose of MART is to engage solely in
any or all of the following activities, all in accordance with the terms of this
Agreement:
(a) to acquire from time to time all right, title and interest in and to
installment sale contracts, receivables or leases arising out of or relating to
the sale, lease or financing of new or used motor vehicles (including
automobiles and light and heavy
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duty trucks), monies due thereunder, security interests in the motor vehicles or
equipment financed thereby, proceeds from claims on insurance policies related
thereto and related rights (collectively, the "Contracts").
(b) to acquire, own, hold, service, sell, assign, pledge and otherwise deal
with the Contracts, collateral securing the Contracts, related insurance
policies, agreements with motor vehicle dealers or equipment dealers or lessors
or other originators or servicer of Contracts and any proceeds or further rights
associated with any of the foregoing;
(c) to transfer Contracts to trusts (collectively, the "Trusts") pursuant
to one or more pooling agreements, sale and servicing agreements or other
agreements (collectively, the "Pooling Agreements") to be entered into by and
among, among others, MART, the trustees named therein and any entities acting as
servicers of the Contracts;
(d) to authorize, sell and deliver any class of certificates or other
securities issued by the Trusts under the related Pooling Agreements
(collectively, the "Certificates");
(e) to enter into one or more indentures or other agreements (collectively,
the "Indentures") with the trustees named therein, providing, among other
things, for the issuance of the Securities referred to in clause (f) below and
the pledging of the pools of Contracts or Certificates of any class issued by
one or more Trusts;
(f) to authorize, issue, sell and deliver one or more series and classes of
certificates, bonds, notes or other evidence of indebtedness or other securities
secured or collateralized by one or more pools of Contracts or by Certificates
(collectively, the "Securities"), provided that MART shall have no liability
under any Securities except to the extent of the one or more pools of Contracts
or Certificates securing or collateralizing such Securities;
(g) to hold and enjoy all of the rights and privileges of any class of any
series of Certificates issued by the Trusts to MART under the related Pooling
Agreements and to hold and enjoy all of the rights and privileges of any class
of any series of Securities issued under the related Indentures, including any
class of Securities or Certificates which may be subordinate to any other class
of Securities or Certificates, respectively;
(h) to perform its obligations under the Pooling Agreements and Indentures;
and
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(i) to enter into all such other agreements, to engage in all such other
activities and to exercise all such other powers permitted to business trusts
under the Business Trust Statute that are incidental to or connected with the
foregoing business or purposes or necessary or desirable to accomplish the
foregoing.
Section 2.3 Confirmation of Appointment of the Trustee. The Beneficial
Owner hereby confirms the appointment of Chase Manhattan Bank Delaware as
Trustee, effective as of the date of the Original Agreement. Effective as of the
date hereof, the Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Statute with respect to accomplishing the
purposes of MART.
Section 2.4 Initial Assets. Pursuant to the Original Agreement, MMCA, as
Beneficial Owner, granted, assigned, transferred, conveyed and set over to MART,
as of the date thereof, the sum of $100. The Trustee, on behalf of MART, has
acknowledged receipt in trust from the Beneficial Owner, as of the date thereof,
of the foregoing contribution, which constituted the initial assets of MART.
Section 2.5 Declaration of Trust. The Trustee hereby declares that, subject
to the terms and conditions of this Agreement, it shall hold all assets of MART
conveyed or to be conveyed to MART, including all monies and proceeds of such
assets, in trust for the benefit of the Beneficial Owner. It is the intention of
the parties hereto that (i) MART constitutes a business trust under Chapter 38
of Title 12 of the Delaware Code, 12 Delaware Code ss. 3801 et seq. (the
"Business Trust Statute") and that this document constitute the governing
instrument of MART and (ii) solely for income and franchise tax purposes, MART
shall be treated (a) if it has a single beneficial owner, as a non-entity, and
if has more than one beneficial owner, as a partnership, with the assets of the
partnership being the assets held by MART and the partners of the partnership
being the beneficial owners. The parties agree that, unless otherwise required
by the appropriate tax authorities, MART will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of MART either as a non-entity or as a partnership for such tax
purposes. Effective as of the date hereof, the Trustee shall have the rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of MART.
Section 2.6 Situs of Trust. MART shall be located and administered in the
State of Delaware. Any bank accounts maintained by the Trustee on behalf of MART
shall be located in the State of California, the State of Delaware or the State
of New York. Payments will be received by MART only in California, Delaware or
New York, and payments will be made by MART only from California, Delaware or
New York.
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Section 2.7 Title to Trust Property. Legal title to all assets of MART
shall at all times be vested in MART as a separate legal entity, except where
applicable law in any jurisdiction requires title to any part of the assets of
MART to be vested in the trustee or trustees, in which case title shall be
deemed to be vested in the Trustee, a co-trustee and/or a separate trustee, as
the case may be.
Section 2.8 Representations and Warranties of MMCA. MMCA, as Beneficial
Owner, hereby represents and warrants to the Trustee that:
(a) Organization, etc. The Beneficial Owner has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted;
(b) Due Qualification. The Beneficial Owner is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualifications;
(c) Due Authorization and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by the Beneficial Owner, and is the valid,
binding and enforceable obligation of the Beneficial Owner except as the same
may be limited by insolvency, bankruptcy, reorganization or other laws relating
to or affecting the enforcement of creditors' rights or by general equity
principles;
(d) No Violation. The execution, delivery and performance by the Beneficial
Owner of this Agreement and the consummation of the transactions contemplated
hereby and the fulfillment of the terms hereof will not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the certificate of
incorporation or bylaws of the Beneficial Owner, or conflict with, or breach any
of the terms or provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any indenture, agreement, mortgage, deed of trust
or other instrument to which the Beneficial Owner is a party or by which the
Beneficial Owner is bound or to which any of its properties are subject, or
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, or violate any law, order, rule, or regulation, applicable
to the Beneficial Owner or any of its properties, of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Beneficial Owner or any of its
properties; and
8
(e) No Proceedings. There are no proceedings or investigations pending or,
to the Beneficial Owner's best knowledge, threatened before any governmental
authorities (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Beneficial Owner of its obligations
under, or the validity and enforceability of, this Agreement.
Section 2.9 Conduct of Business by MART. (a) The business and affairs of
MART shall be operated in such a manner as the Board of Managers deems
reasonable and necessary or appropriate to preserve the limited liability of the
Beneficial Owner, the separateness of MART from the business of the Beneficial
Owner or any Affiliate of the Beneficial Owner, and until one year and one day
after all Securities and Certificates are paid in full, the special purpose,
bankruptcy remote status of MART. To the extent permitted by law, until one year
and one day after all Securities and Certificates are paid in full, the Board of
Managers shall make decisions with respect to the business and daily operations
of MART independent of, and not dictated by, the Beneficial Owner or any
Affiliate of the Beneficial Owner.
(b) MART shall at all times:
(i) maintain books and records separate from those of any other
Person;
(ii) maintain its accounts separate from those of any other Person;
(iii) conduct its business solely in its own name;
(iv) maintain financial statements separate from those of any other
Person, separately identifying its own assets, liabilities and financial
affairs;
(v) pay its indebtedness and other liabilities out of its own funds
and assets;
(vi) observe all business trust formalities required by law and this
Agreement;
(vii) maintain an arm's-length relationship with each of its
Affiliates;
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(viii) pay the salaries of its own employees and officers and maintain
a sufficient number of employees in light of its contemplated business
operations;
(ix) allocate fairly and reasonably any overhead for office space or
other expenses incurred by any Affiliate on behalf of MART;
(x) use stationery, invoices, checks and other business forms separate
from those of any other Person;
(xi) correct any known misunderstanding regarding its identity
separate from that of any other Person; and
(xii) maintain adequate capital in light of its contemplated business
operations.
(c) MART shall not do any of the following until one year and one day after
all Securities and Certificates are paid in full:
(i) seek to have its indebtedness or other obligations guaranteed by,
or secured by a pledge of the assets of, the Beneficial Owner or any
Affiliate of the Beneficial Owner (except for MART);
(ii) commingle its bank accounts or other assets with those of any
other Person;
(iii) acquire any obligations or securities of the Beneficial Owner;
(iv) operate or purport to operate as an integrated, single economic
unit with respect to any other Person; or
(v) seek or obtain credit or incur any obligation to any third party
based upon the assets of the Beneficial Owner or any Affiliate of the
Beneficial Owner (except for MART) or induce any such third party to
reasonably rely on the creditworthiness of the Beneficial Owner or any
Affiliate of the Beneficial Owner (except for MART), or suggest in any way
that its assets are directly available to pay the claims of creditors of
the Beneficial Owner or any Affiliate of the Beneficial Owner (except for
MART).
(d) Notwithstanding any provision in this Agreement to the contrary, MMCA
may pay the fees and expenses and indemnify (i) the Trustee pursuant to this
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Agreement and (ii) any underwriter, placement agent, initial purchaser for
resale or other Person performing similar functions in connection with the
issuance of any Securities or Certificates.
ARTICLE III
MANAGEMENT OF MART; THE BOARD OF MANAGERS; OFFICERS
Section 3.1 General Management of MART. (a) The business, properties and
affairs of MART shall be managed by the Board of Managers (the "Board of
Managers") which, without limiting the generality of the foregoing, shall have
the power to appoint officers of MART, to appoint and direct agents, to grant
general or limited authority to officers, employees and agents of MART, and to
make, execute and deliver contracts and other instruments and documents in the
name and on behalf of MART, including the documentation referred to in Section
3.1(b).
(b) The Board of Managers shall have the power and authority to execute,
deliver and file with the Commission in the name of and on behalf of MART one or
more registration statements in connection with the offering of Securities or
Certificates by MART or any Affiliate of MART. The Board of Managers shall also
have the power and authority to execute, deliver and file with the Commission in
the name of and on behalf of MART such other documentation that is required to
be executed, delivered and filed with the Commission from time to time under the
Securities Act or the Exchange Act in connection with the offering of Securities
or Certificates by MART or any Affiliate of MART.
Section 3.2 Appointment and Term. The Beneficial Owner shall be entitled to
appoint from time to time persons to serve as the managers (each, a "Manager")
on the Board of Managers. Managers shall serve until their respective successors
are appointed by the Beneficial Owner or until their earlier death, resignation,
retirement or removal.
Section 3.3 Number. The number of Managers which shall constitute the whole
Board of Managers shall be five. The number may be increased or reduced from
time to time by amendment of this Agreement.
Section 3.4 Standard of Care; Independent Managers. (a) A Manager shall owe
such fiduciary duties of loyalty and due care to MART as is required of a
director of a Delaware corporation under applicable Delaware law. Every Manager
shall discharge his or her duties in good faith, with the care an ordinary
prudent person in a like position would exercise under similar circumstances,
and in a manner her or she reasonably believes to be in the best interest of
MART.
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(b) The Board of Managers of MART shall include at least two Independent
Managers until one year and one day after all Securities and Certificates are
paid in full. So long as any Securities or Certificates rated by any Rating
Agency are outstanding, this Section 3.4(b) and Sections 3.4(c) and (d) shall
not be amended without the prior written consent of each of the Independent
Managers. When voting on matters subject to the vote of the Board of Managers,
including those matters specified in Section 3.4(d), (i) notwithstanding that
MART is not then subject to an Insolvency Event, the Independent Managers shall
take into account the interests of the creditors of MART as well as the
interests of MART and (ii) if MART is then subject to an Insolvency Event, in
any action requiring the vote of the Independent Managers pursuant to Section
3.4(d), the Independent Managers and each other Manager shall owe their
fiduciary duties to MART and the creditors of MART. Except as provided in
Section 3.4(d), any action permitted or required to be taken by the Board of
Managers may be taken by a simple majority of the members of the Board of
Managers. The actions set forth in Section 3.4(d) shall be the only actions by
the Board of Managers that shall require the affirmative vote of 100% of the
Board of Managers or the vote of the majority that includes at least two
Independent Managers.
(c) The following terms shall have the meanings set forth below (which
other than the definition of "Independent Manager" set forth in clause (i) below
shall be solely for purposes of this Section 3.4(c)):
(i) An "Independent Manager" shall be an individual who: (A) is not and
has not been employed by MMCA or any of its subsidiaries or affiliates as a
director, officer or employee within the five years immediately prior to
such individual's appointment as an Independent Manager; (B) is not and has
not been affiliated with either a significant customer of MMCA or any of
its subsidiaries or affiliates within the five years immediately prior to
such individual's appointment as an Independent Manager or a significant
supplier of MMCA or any of its subsidiaries within the five years
immediately prior to such individual's appointment as an Independent
Manager; (C) is not and has not been affiliated with a company of which
MMCA or any of its subsidiaries and affiliates is a significant customer or
significant supplier within the five years immediately prior to such
individual's appointment as an Independent Manager; (D) does not have and
has not had significant personal services contract(s) with MMCA or any of
its subsidiaries or affiliates within the five years immediately prior to
such individual's appointment as an Independent Manager; (E) is not
affiliated with a tax-exempt entity that receives significant contributions
from MMCA or any of its subsidiaries or affiliates within the five years
immediately prior to such individual's appointment as an Independent
Manager; (F) is not the beneficial owner at the
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time of such individual's appointment as an Independent Manager, or at any
time thereafter while serving as an Independent Manager, of such number of
shares of any class of common stock of MMCA the value of which constitutes
more than 3% of such individual's net worth; (G) is not a spouse, parent,
sibling or child of any person described by clauses (A) through (F); and
(H) is not and was not a major creditor of MMCA or any of its subsidiaries
or affiliates within the five years prior to such appointment as an
Independent Manager.
(ii) An "affiliate" of a person, or a person "affiliated with," a
specified person, shall mean a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the specified person.
(iii) The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership or
voting securities, by contract, or otherwise; provided, however, that a
person shall not be deemed to control another person solely because he or
she is a director of such other person.
(iv) The term "person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person pursuant to
Section 13(d)(3) of the Exchange Act.
(v) A "subsidiary" of MMCA shall mean any corporation a majority of the
voting stock of which is owned, directly or indirectly through one or more
other subsidiaries, by MMCA.
(vi) A "significant customer of MMCA or any of its subsidiaries or
affiliates" shall mean a customer from which MMCA and any of its
subsidiaries or affiliates collectively in the last fiscal year of MMCA
received payments in consideration for the products and services of MMCA
and its subsidiaries and affiliates which are in excess of 1% of the
consolidated gross revenues of MMCA and its subsidiaries during such fiscal
year.
(vii) A "significant supplier of MMCA or any of its subsidiaries or
affiliates" shall mean a supplier to which MMCA and any of its subsidiaries
or affiliates collectively in the last fiscal year of MMCA made payments in
consideration for the supplier's products and services in excess of 3% of
the consolidated gross revenues of MMCA and its subsidiaries during such
fiscal year.
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(viii) MMCA or any of its subsidiaries and affiliates shall be deemed a
"significant customer" of a company if MMCA and any of its subsidiaries and
affiliates collectively were the direct source during such company's last
fiscal year in excess of 3% of the gross revenues which such company
received from the sale of its products and services during such fiscal
year.
(ix) MMCA or any of its subsidiaries and affiliates shall be deemed a
"significant supplier" of a company if MMCA and any of its subsidiaries or
affiliates collectively received in such company's fiscal year payments
from such company in excess of 3% of the gross revenues which such company
received during such fiscal year for the sale of its products and services.
(x) A person shall be deemed to have "significant personal services
contract(s) with MMCA or any of its subsidiaries or affiliates" if the fees
and other compensation received by the person pursuant to personal services
contract(s) with MMCA and any of its subsidiaries or affiliates exceeded or
would exceed 3% of his or her gross revenues during the last calendar year.
(xi) A tax-exempt entity shall be deemed to receive "significant
contributions from MMCA or any of its subsidiaries or affiliates" if such
tax-exempt entity received during its last fiscal year, or expects to
receive during its current fiscal year, contributions from MMCA or its
subsidiaries or affiliates in excess of the lesser of (i) 3% of the
consolidated gross revenues of MMCA and its subsidiaries during such fiscal
year and (ii) 1% of the contributions received by the tax-exempt entity
during such fiscal year.
(xii) A person shall be deemed to be a "major creditor of MMCA or any
of its subsidiaries or affiliates" if it is a financial institution which
MMCA, such subsidiary or such affiliate owes outstanding indebtedness for
borrowed money in a sum exceeding more than 5% of MMCA's total consolidated
assets.
(d) Notwithstanding any other provision of this Agreement and any provision
of law that otherwise so empowers MART, MART shall not, without the affirmative
vote of a majority of the members of the Board of Managers, including each
Independent Manager, do any of the following:
(i) engage in any business or activity other than those set forth in
Section 2.2;
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(ii) incur any indebtedness, or assume or guaranty any indebtedness
of any other person, other than (A) indebtedness incurred to MMCA or any
Affiliate of MART in connection with the acquisition of Contracts from
time to time and the other businesses and activities set forth in Section
2.2, which indebtedness will be subordinate to any Certificates and any
Securities and will only be payable to the extent MART has available cash
to pay such indebtedness; (B) indebtedness incurred in connection with
Securities or Certificates issued in compliance with a Pooling Agreement
or an Indenture; (C) salaries, fees and expenses to its professional
advisors and counsel, Managers, officers and employees; (D) indebtedness
where the person to whom the indebtedness is owing has delivered to MART
an undertaking that it will not institute against, or join any other
person in instituting against, MART any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any federal or state bankruptcy or similar law, for one year and one
day after all Securities and Certificates are paid in full, or look to
property or assets of MART in respect of such obligations and that such
obligations shall not constitute a claim against MART in the event that
MART's assets are insufficient to pay in full such obligations; and (E)
other indebtedness not exceeding $5,000 at any one time outstanding, on
account of incidentals or services supplied or furnished to MART; or
(iii) engage in or take any other action that would constitute an
Insolvency Event.
Section 3.5 Resignation. Any Manager may resign at any time upon written
notice of resignation to the Trustee and the Beneficial Owner. Any resignation
shall be effective immediately unless a date certain is specified for it to
take effect, in which event it shall be effective upon such date, and
acceptance of any resignation shall not be necessary to make it effective,
irrespective of whether the resignation is tendered subject to such acceptance.
Section 3.6 Removal of Managers. Any Manager may be removed, either for or
without cause, by the Beneficial Owner.
Section 3.7 Filling of Vacancies. In the case of any increase in the
number of Managers, or of any vacancy in the Board of Managers, the additional
Manager shall be appointed by the Beneficial Owner.
15
Section 3.8 Managers' Compensation. Any or all Managers may receive such
reasonable compensation for their services, whether in the form of salary or
otherwise, with expenses, if any, as the Board of Managers may from time to
time determine.
Section 3.9 Liability of Managers. No person shall be personally liable to
MART or the Beneficial Owner for any breach of its duties as a Manager;
provided, however, that the foregoing shall not eliminate or limit the
liability of a Manager for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law.
Section 3.10 Officers. (a) The Board of Managers, by a simple majority,
shall appoint a chief executive officer of MART (the "Chief Executive
Officer"). The Chief Executive Officer shall be the chief executive officer of
MART. The Chief Executive Officer shall have general authority to exercise all
the powers necessary for the chief executive officer of MART. The Chief
Executive Officer shall also be the chief operating officer of MART. The Chief
Executive Officer shall implement the general directives, plans and policies of
MART within the scope of the authority delegated to the Chief Executive Officer
by the Board of Managers. The Chief Executive Officer shall have the primary
responsibility for (i) maintaining the separate status of MART from any
Affiliate of MART, (ii) overseeing the proper segregation of the assets of MART
from the assets of third parties who may have general authority to execute
bonds, deeds and contracts in the name and on behalf of MART, (iii) employing
or appointing such employees, agents and officers as may be required to carry
on the operation of the business of MART, and (iv) supervising the proper
segregation of the Subtrust Assets allocated to each Subtrust from the Subtrust
Assets allocated to any other Subtrust in accordance with Section 4.2. In the
absence of the Chief Executive Officer, the duties of the Chief Executive
Officer shall be performed and the authority of the Chief Executive Officer
shall be exercised by such officer as may have been designated by the most
senior officer of MART who has made any such designation, with the right
reserved to the Board of Managers to make the designation or supersede any
designation so made.
(b) The Board of Managers, by a simple majority, or the Chief Executive
Officer shall appoint a chief financial officer of MART (the "Chief Financial
Officer"). The Chief Financial Officer shall be the chief financial officer of
MART. Except as otherwise provided by the Board of Managers or the Chief
Executive Officer, the Chief Financial Officer shall perform all necessary acts
and duties in connection with the administration of the financial affairs of
MART and shall generally perform all the duties usually appertaining to the
office of the chief financial officer of a business. In the absence of the
Chief Financial Officer, the duties of the Chief Financial Officer shall be
performed and the authority of the Chief Financial Officer shall be exercised
by such
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officer as may be designated by the Chief Executive Officer, with the right
reserved to the Board of Managers to make the designation or supersede any
designation so made.
(c) The Board of Managers, by a simple majority, or the Chief Executive
Officer shall appoint a chief accounting officer of MART (the "Chief Accounting
Officer"). The Chief Accounting Officer shall be the chief accounting officer
of MART. Except as otherwise provided by the Board of Managers or the Chief
Executive Officer, the Chief Accounting Officer shall perform all necessary
acts and duties usually appertaining to the office of the chief accounting
officer of a business. In the absence of the Chief Accounting Officer, the
duties of the Chief Accounting Officer shall be performed and the authority of
the Chief Accounting Officer shall be exercised by such officer as may be
designated by the Chief Executive Officer, with the right reserved to the Board
of Managers to make the designation or supersede any designation so made.
(d) The Board of Managers, by a simple majority, or the Chief Executive
Officer may, from time to time, appoint other officers of MART as may be
necessary or appropriate for the conduct of MART's business, subject to the
supervision and control of the Board of Managers and the Chief Executive
Officer (each such officer together with the Chief Executive Officer, the Chief
Financial Officer and the Chief Accounting Officer, an "Authorized Officer").
Any Authorized Officers so designated shall have such authority and perform
such duties as the Board of Managers or the Chief Executive Officer may, from
time to time, delegate to them. Either the Board of Managers or the Chief
Executive Officer may assign titles to particular officers in addition to the
Chief Financial Officer and the Chief Accounting Officer.
(e) The Chief Executive Officer shall have authority to fix the
compensation of the employees, agents and officers of MART. The Chief Executive
Officer shall also have the authority to appoint, suspend or remove any other
Authorized Officer, employee or agent of MART.
(f) All Authorized Officers appointed by the Board of Managers or the
Chief Executive Officer shall hold office until their respective successors are
appointed or until their earlier resignation or removal. All Authorized
Officers shall hold office at the pleasure of the Board of Managers. If any
vacancy shall occur in any office, the Board of Managers or the Chief Executive
Officer may appoint a successor to fill such vacancy.
(g) The Chief Executive Officer may be removed at any time, either for or
without cause, by a simple majority of the Board of Managers. Any of the other
Authorized Officers may be removed at any time, either for or without cause, by
a simple majority of the Board of Managers or the Chief Executive Officer.
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(h) Any Authorized Officer may resign at any time upon written notice of
resignation to MART. Any resignation shall be effective immediately unless a
date certain is specified for it to take effect, in which event it shall be
effective upon such date, and acceptance of any resignation shall not be
necessary to make it effective, irrespective of whether the resignation is
tendered subject to such acceptance.
(i) Any Authorized Officer may hold two or more offices the duties of
which can be consistently performed by the same Person.
(j) In addition to the foregoing specifically enumerated duties and
authority, the Authorized Officers shall perform such other duties and may
exercise such further authority as the Board of Managers or the Chief Executive
Officer may determine from time to time or may be assigned to them from time to
time by any superior officer.
(k) Except as fixed or controlled by the Board of Managers, compensation
of all officers and employees shall be fixed by the Chief Executive Officer or
by other Authorized Officers exercising authority granted to them.
(l) On or prior to the date of this Agreement, an Authorized Officer shall
provide a written notice to the Trustee in substantially the form attached
hereto as Exhibit B setting forth the name and title of each officer of MART
who shall be an Authorized Officer for purposes of this Agreement. An
Authorized Officer shall also provide prompt written notice to the Trustee if
any additional Person shall be appointed an Authorized Officer for purposes of
this Agreement or if any Person shall no longer be an Authorized Officer for
purposes of this Agreement because of such officer's resignation, removal or
otherwise. The Trustee shall be entitled to rely upon, and shall be protected
in relying upon, any written notice delivered to the Trustee pursuant to this
Section 3.10(l).
Section 3.11 Liability of Authorized Officers. No Authorized Officer shall
be personally liable to MART or the Beneficial Owner for any breach of its
duties as an Authorized Officer; provided, however, that the foregoing shall
not eliminate or limit the liability of an Authorized Officer of MART for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law.
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ARTICLE IV
THE SUBTRUSTS
Section 4.1 Beneficial Ownership. The Beneficial Owner shall be the
exclusive beneficial owner of MART and each Subtrust.
Section 4.2 Subtrusts. (a) The MART Assets, immediately upon the
acquisition thereof by MART, shall be allocated to, and identified only with, a
Subtrust under this Agreement (each such subtrust, a "Subtrust", and the assets
allocated to each such Subtrust, "Subtrust Assets"). Each Subtrust shall be a
separate series of MART pursuant to Section 3806(b)(2) of the Business Trust
Statute. The Board of Managers shall cause an Authorized Officer to account for
and record separately all Subtrust Assets and the proceeds thereof allocated to
any Subtrust from the Subtrust Assets and the proceeds thereof allocated to any
other Subtrust. The Board of Managers shall cause an Authorized Officer to
maintain separate and distinct records for the Subtrust Assets related to each
Subtrust and to hold and account for the Subtrust Assets related to each
Subtrust separately from the Subtrust Assets related to any other Subtrust.
Except to the extent required by law or specified in this Agreement, the debts,
liabilities and expenses incurred, contracted for or otherwise existing with
respect to any Subtrust shall be enforceable against the assets of such
Subtrust only, and not against the assets of MART generally or of any other
Subtrust, and, except to the extent required by law or specified in this
Agreement, none of the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to MART generally shall be
enforceable against the assets of any Subtrust.
(b) Notice of the limitation on interseries liabilities between Subtrusts
applicable to each Subtrust and the Subtrust Assets has been set forth in the
Certificate of Trust as filed in the office of the Secretary of State pursuant
to the Business Trust Statute and the Original Agreement. It is the express
intent of the parties hereto that effective upon the giving of such notice in
the Certificate of Trust, the statutory provisions of Section 3804 of the
Business Trust Statute relating to limitations on interseries liabilities (and
the statutory effect under Section 3804 of the Business Trust Statute of
setting forth such notice in the Certificate of Trust) became applicable to
MART, the Trustee, the Beneficial Owner and the Subtrust Assets related to each
Subtrust. The limitation on interseries liabilities is included in the
Certificate of Trust as filed with the Secretary of State in the form attached
hereto as Exhibit A.
(c) Any Security and every note, bond, contract or other undertaking
issued by or on behalf of any Subtrust shall include a recitation limiting the
obligation represented thereby to the related Subtrust and the related Subtrust
Assets. Any such Security, note, bond, contract or undertaking, whether secured
or unsecured, shall also
19
include an acknowledgment and agreement by the holder thereof to the effect
that any claim that such holder may have at any time against any MART Assets
that are allocated to an unrelated Subtrust, and any claim that such holder may
have at any time against MART that such holder may seek to enforce against any
MART Assets that are allocated to an unrelated Subtrust, shall be subordinate
to the payment in full, including post-petition interest, in the event that
MART becomes subject to an Insolvency Event, of the claims of the holders of
any Securities or Certificates that are related to such unrelated Subtrust and
the holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust. Any Security and every note, bond, contract
or other undertaking issued by or on behalf of any Subtrust shall include a
recitation that each holder or owner of such Security, note, bond, contract or
other undertaking shall, by acceptance of such Security, note, bond, contract
or other undertaking (or, in the case of an owner, a beneficial interest in
such Security, note, bond, contract or other undertaking), irrevocably makes
the election afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i)
to secured creditors to receive the treatment afforded by Title 00 Xxxxxx
Xxxxxx Code Section 1111(b)(2) with respect to any secured claim that such
holder or owner may have at any time against the seller.
(d) The Subtrust to which any MART Assets shall be allocated shall be
specified in a certificate (each, a "Subtrust Designation Certificate")
executed by an Authorized Officer and delivered to the Trustee not less than
one Business Day prior to the acquisition of the applicable MART Assets. Each
Subtrust Designation Certificate shall include the following:
(i) a designation of the Subtrust to which the MART Assets are to be
allocated, which shall be in form and substance sufficient to allow the
Trustee to differentiate between the Subtrust to which the MART Assets are
to be allocated and any other Subtrust;
(ii) the date on which the MART Assets to be allocated to such
Subtrust are to be transferred to MART and allocated to such Subtrust; and
(iii) a list of the MART Assets to be allocated to the Subtrust,
which shall identify the MART Assets in such a manner as may be reasonably
required by the Trustee to differentiate between such MART Assets
allocated to such Subtrust and any other MART Assets.
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ARTICLE V
THE TRUSTEE
Section 5.1 Duties of the Trustee. (a) The Trustee is authorized and
directed to execute and deliver this Agreement and each certificate or other
document attached as an exhibit to or contemplated by this Agreement to which
MART is to be a party, in such form as the Beneficial Owner, the Board of
Managers or any Authorized Officer shall approve, such approval in the case of
this Agreement to be evidenced by the signature of an authorized officer of the
Beneficial Owner on the signature page hereto. Neither the Board of Managers
nor any Authorized Officer shall direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of MART or the Trustee under this Agreement, and the Trustee shall
not be obligated to follow any such direction, if given. The Trustee shall
perform such duties, and only such duties, as are specifically set forth in
this Agreement. No implied covenants or obligations on the part of the Trustee
shall be read into this Agreement.
(b) In addition to the foregoing, the Trustee is authorized (but shall not
be obligated) to take all actions required of MART pursuant to this Agreement.
The Trustee is further authorized from time to time to take such action on
behalf of MART as is permitted by this Agreement and which any Authorized
Officer recommends with respect to the Trust Agreement, except to the extent
that this Agreement expressly requires the consent of the Board of Managers for
such action.
(c) It shall be the duty of the Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this
Agreement. Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder to the extent the Board of
Managers or an Authorized Officer is required hereunder to perform any act or
to discharge such duty of the Trustee or MART hereunder, and the Trustee shall
not be held liable for the default or failure of the Board of Managers or an
Authorized Officer, as the case may be, to carry out its obligations hereunder.
The Trustee shall have no obligation to administer, service or collect the
Contracts or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Contracts.
(d) In the absence of bad faith on its part, the Trustee may conclusively
rely upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement in determining the truth of the statements
and the correctness of the opinions contained therein; provided, however, that
the Trustee shall have examined such certificates or opinions so as to
determine compliance of the same with the requirements of this Agreement.
21
(e) Neither the Board of Managers nor any Authorized Officer shall direct
the Trustee to take any action that is inconsistent with Section 2.2 or the
terms of this Agreement.
(f) The Trustee shall not be required (i) to keep itself informed as to
the performance or observance by the Board of Managers or any Authorized
Officer of any obligations of the Board of Managers or any Authorized Officer
under this Agreement or any other document or agreement to which the Trust is a
party referred to or provided for herein or (ii) to inspect the properties or
books or records of the Board of Managers or any Authorized Officer maintained
on behalf of the Trust.
(g) Neither the Board of Managers nor any Authorized Officer shall,
without the prior written consent of the Trustee, enter into any agreement or
other instrument on behalf of the Trust that obligates the Trustee to take any
action or perform any service or that creates on behalf of the Trustee any
other duty or obligation.
Section 5.2 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article V, in accepting the trusts hereby created, the Trustee acts
solely as trustee hereunder and not in its individual capacity. All Persons
having any claim against the Trustee by reason of the transactions contemplated
by this Agreement shall not be entitled to payment or satisfaction thereof from
the Trustee in its individual capacity, except in the manner and to the extent
provided by this Section 5.2. The Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to such trusts but only
upon the terms of this Agreement. The Trustee shall not be liable or
accountable hereunder under any circumstances, except (i) for its own negligent
action, its own negligent failure to act or its own willful misconduct or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 5.5 and expressly made by the Trustee in its individual capacity. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the instructions of the Board of
Managers or an Authorized Officer pursuant to Section 5.3;
(b) no provision of this Agreement shall require the Trustee to expend or
risk funds or otherwise incur any financial liability in the performance of any
of its rights or powers hereunder, if the Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
22
(c) the Trustee shall not be responsible for or in respect of and makes no
representation as to the validity or sufficiency of any provision of this
Agreement or for the due execution hereof by MMCA or for the form, character,
genuineness, sufficiency, value or validity of any MART Assets or for or in
respect of the validity or sufficiency of any agreement or other document to
which MART is a party, and in no event shall the Trustee assume or incur any
liability, duty or obligation to the Board of Managers, other than as expressly
provided for herein;
(d) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend
any litigation under this Agreement or otherwise or in relation to this
Agreement, at the request, order or direction of the Board of Managers or an
Authorized Officer, unless the Beneficial Owner has offered to the Trustee
security or indemnity satisfactory to it against the fees, costs, expenses and
liabilities that may be incurred by the Trustee therein or thereby;
(f) the right of the Trustee to perform any discretionary act enumerated
in this Agreement shall not be construed as a duty, and the Trustee shall not
be answerable for other than its own negligent action or willful misconduct in
the performance of any such act; and
(g) in no event shall the Trustee be liable for the acts or omissions of
the Board of Managers or an Authorized Officer or be responsible for performing
or monitoring the performance of the Board of Managers or any Authorized
Officer.
Every provision of this Agreement relating to the Trustee shall be subject
to the provisions of this Section 5.2.
Section 5.3 Action upon Instruction by the Board of Managers or Authorized
Officers; Rights of the Trustee. (a) Notwithstanding the foregoing, and in
accordance with Section 5.2(d), the Trustee shall not be required to take any
action or refrain from taking action hereunder if the Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Trustee or is contrary to
the terms of this Agreement or is otherwise contrary to law.
23
(b) Whenever the Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Agreement, or is unsure as
to the application, intent, interpretation or meaning of any provision of this
Agreement, the Trustee may request an Opinion of Counsel (at the expense of
MART) as to such application, intent, interpretation or meaning, or may give
notice (in such form as shall be appropriate under the circumstances) to the
Board of Managers requesting instruction as to the course of action to be
adopted, and, to the extent the Trustee acts in good faith in accordance with
such Opinion of Counsel or any such instruction received from the Board of
Managers or an Authorized Officer, as the case may be, the Trustee shall not be
liable on account of such action to any Person. If the Trustee shall not have
received an Opinion of Counsel or appropriate instructions within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances), it may,
but shall be under no duty to, take or refrain from taking such action which is
consistent, in its view, with this Agreement, and the Trustee shall have no
liability to any Person for any such action or inaction.
(c) The Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the MART Assets, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Trustee or MART is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Trustee
pursuant to this Section 5.3; and no implied duties or obligations shall be
read into this Agreement against the Trustee. The Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it pursuant to any agreement or other
document to which it is a party in its capacity as Trustee. The Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any lien on any part of the MART
Assets that results from actions by, or claims against, the Trustee in its
individual capacity that are not related to the ownership or the administration
of the MART Assets.
(d) The Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any MART Assets except (i) in accordance with powers
granted to and the authority conferred upon the Trustee pursuant to this
Agreement and (ii) pursuant to any document or instruction delivered to the
Trustee in accordance with this Agreement.
(e) Except in accordance with the written instructions furnished by an
Authorized Officer and except as provided herein, the Trustee shall have no
duty (i) to see to any recording or filing of any document, (ii) to see to the
payment or discharge of
24
any tax, assessment or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against any part of MART,
(iii) to confirm or verify any financial statements of MART or any statements
or reports of the Board of Managers or an Authorized Officer or (iv) to inspect
MART's books and records at any time.
(f) The Trustee shall not be required to take any action under this
Agreement unless the Trustee shall have been indemnified by the Beneficial
Owner, in manner and form satisfactory to the Trustee, against any liability,
cost or expense (including counsel fees and disbursements) which may be
incurred in connection therewith; and, if the Board of Managers or an
Authorized Officer shall have directed the Trustee to take any such action or
refrain from taking any action, the Beneficial Owner shall furnish such
indemnity as shall be required and, in addition, the Beneficial Owner shall pay
the reasonable compensation of the Trustee for the services performed or to be
performed by it pursuant to such direction.
(g) The Trustee shall manage the business and affairs of MART in
accordance with the terms of the Business Trust Statute; provided, however,
that the Trustee undertakes to perform only such duties as are specifically set
forth in this Agreement and as it may be directed from time to time by the
Board of Managers or an Authorized Officer.
(h) The Trustee may fully rely upon and shall have no liability in
connection with calculations or instructions forwarded to the Trustee by the
Board of Managers or an Authorized Officer. The Trustee shall not have any
obligations to furnish information to any Person if it has not received such
information as it may need from the Board of Managers or an Authorized Officer.
(i) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend
any litigation, at the request, order or direction of the Board of Managers or
an Authorized Officer unless the Beneficial Owner has offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee (including the reasonable fees
and expenses of its counsel) therein or thereby, including such advances as the
Trustee shall request.
(j) In no event whatsoever shall the Trustee be liable for any
representation, warranty, covenant, agreement, indebtedness or other obligation
of MART or any Subtrust.
25
(k) Prior to taking any action under this Agreement, the Trustee shall be
entitled to receive written instructions of an Authorized Officer pursuant to
this Section 5.3.
(l) The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the instructions of an Authorized Officer.
(m) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document.
Section 5.4 Furnishing of Documents. The Trustee shall furnish to the
Board of Managers or an Authorized Officer, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Trustee by others.
Section 5.5 Representations and Warranties of the Trustee. (a) Chase
Manhattan Bank Delaware hereby represents and warrants to the Beneficial Owner
that:
(i) it is a banking corporation duly organized, validly existing and
in good standing under the laws of Delaware and has its principal place of
business in the State of Delaware;
(ii) it has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance by it of this
Agreement;
(iii) the execution, delivery and performance by it of this Agreement
(A) shall not violate any provision of any law or regulation of the State
of Delaware governing the corporate powers of the Trustee or any order,
writ, judgment or decree of any court, arbitrator or governmental
authority of the State of Delaware applicable to the Trustee or any of its
assets, (B) shall not violate any provision of the organizational
documents of the Trustee, and (C) shall not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of any lien on any properties of the
Trustee pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have a materially adverse
effect on the Trustee's performance or ability to perform its duties as
trustee under this Agreement or on the transactions contemplated in this
Agreement;
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(iv) the execution, delivery and performance by the Trustee of this
Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of the Trustee
(other than as may have been made or received, as the case may be, and
other than the filing of the Certificate of Trust with the Secretary of
State); and
(v) this Agreement has been duly executed and delivered by the
Trustee and constitutes the legal, valid and binding agreement of the
Trustee, enforceable against the Trustee in accordance with its terms,
except as enforceability may be limited by insolvency, receivership,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Section 5.6 Reliance; Advice of Counsel. (a) The Trustee shall incur no
liability to any Person in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties and need not investigate any fact or
matter in any such document. The Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter
the method of the determination of which is not specifically prescribed herein,
the Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president, the treasurer or the secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement, the Trustee:
(i) may, at the expense of MART, act directly or through its agents, attorneys,
custodians or nominees pursuant to agreements entered into with any of them,
and the Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees if such agents, attorneys, custodians
or nominees shall have been selected by the Trustee with reasonable care and
(ii) may, at the expense of MART, consult with counsel, accountants and other
skilled professionals to be selected with reasonable care and employed by it.
The Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with any Opinion of Counsel or advice of such
accountants
27
or other such skilled professionals stating that such action or omission is not
contrary to this Agreement.
Section 5.7 Compensation and Indemnity.
(a) The Trustee shall receive as compensation for its services hereunder
such fees as shall be separately agreed upon from time to time between the
Beneficial Owner and the Trustee. The Trustee shall be entitled at all times to
be reimbursed by the Beneficial Owner for its reasonable expenses hereunder,
including the reasonable expenses and disbursements of such agents, custodians,
nominees, representatives, experts and counsel as the Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
(b) Subject to the terms of this Agreement, the Beneficial Owner shall
hold harmless the Trustee, its officers, directors, employees, shareholders and
agents (collectively the "Indemnified Persons" or individually an "Indemnified
Person"), against any and all losses, liabilities, claims, actions, suits,
costs, damages, expenses and liabilities, joint or several (including, but not
limited to, any investigation, reasonable legal and other expenses (including
expenses of investigation) of any kind and nature whatsoever incurred in
connection with, and any amount paid in settlement of any action, suit,
proceeding or claim) (collectively, "Losses") which such Indemnified Persons
may become subject to or liable for by reason of Trustee's acting as trustee
under this Agreement. Notwithstanding the foregoing, the Beneficial Owner shall
not be liable to any Indemnified Person, and shall not be required to indemnify
the Trustee under this Agreement, for any Losses arising out of the negligence,
bad faith or wilful misconduct of such Indemnified Person or any other
Indemnified Person.
Section 5.8 Resignation or Removal of the Trustee. (a) The Trustee shall
not resign without the consent of the Board of Managers unless (i) the Trustee
shall cease to be eligible in accordance with the provisions of Section 5.11,
(ii) the Trustee shall be incapable of acting or it shall be illegal for the
Trustee to act, or (iii) the Trustee shall have given at least 60 days' prior
written notice to the Board of Managers.
(b) The Board of Managers may remove the Trustee (and shall remove the
Trustee in the case of the occurrence of an event described in clause (i) or
(iv)):
(i) if the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.11 and shall fail to resign after a written
request therefor;
(ii) if the Trustee shall be adjudged bankrupt or insolvent;
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(iii) if a receiver or other public officer shall be appointed or
take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
(iv) if the Trustee shall otherwise be incapable of acting or it
shall be illegal for the Trustee to act; or
(v) at its discretion.
(c) If the Trustee is removed or if a vacancy exists in the office of
trustee for any reason, the Board of Managers shall promptly appoint a
successor Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing trustee so removed, one copy to
the successor Trustee). All costs associated with the resignation or removal of
the Trustee and the appointment of a successor Trustee shall be general
expenses of MART. If a successor Trustee shall not have been appointed within
30 days of such resignation or removal, the outgoing Trustee may petition a
court of competent jurisdiction for the appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 5.8 shall
not become effective until a written acceptance of appointment is delivered by
the successor Trustee. Any successor Trustee appointed pursuant to this Section
5.8 shall be eligible to act in such capacity in accordance with Section 5.11
and, following compliance with the preceding sentence, shall become fully
vested with all the rights, powers, duties and obligations of the outgoing
Trustee under this Agreement, with like effect as if originally named as
trustee.
(e) The outgoing Trustee shall upon payment of its fees and expenses
deliver to the successor Trustee all books, records, accounts, documents,
statements and monies held by it under this Agreement. The outgoing Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required to fully and certainly vest and confirm in the successor
Trustee all such rights, powers, duties and obligations. The outgoing Trustee
shall cooperate with the successor Trustee to ensure that the successor Trustee
has all books, records, accounts, documents, statements, monies held by it
under this Agreement and any other relevant information in the possession of
the outgoing Trustee relating to the MART Assets.
(f) Upon the appointment and acceptance of a successor Trustee pursuant to
this Section 5.8, such successor Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Trustee in the State of Delaware.
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Section 5.9 Merger or Consolidation of the Trustee. Any corporation or
other Person which may be merged, converted or consolidated with Chase
Manhattan Bank Delaware or any corporation resulting from any merger,
conversion or consolidation to which Chase Manhattan Bank Delaware shall be a
party, or any corporation or other Person succeeding to all or substantially
all of the corporate trust business of Chase Manhattan Bank Delaware, shall be
deemed the successor of such Trustee hereunder; provided, however, that such
corporation shall be eligible in accordance with the provisions of Section
5.11, and without the execution or filing of any instrument or any further act
on the part of any of the parties hereto; provided, that such corporation shall
file an amendment to the Certificate of Trust with the Secretary of State as
provided in Section 5.8(e).
Section 5.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any MART
Assets may then be located, the Beneficial Owner hereby grants the Trustee the
authority and power to execute and deliver all instruments to appoint one or
more Persons to act as co-trustee, jointly with the Trustee, or as separate
trustee or trustees, of all or any part of MART and the MART Assets, and to
vest in such Person, in such capacity, such title to MART, or any MART Assets
and, subject to the other provisions of this Section 5.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to be eligible in accordance with the provisions of Section 5.11;
provided, however, that no co-trustee or separate trustee under this Agreement
may be a Manager or any Affiliate thereof.
(b) Each co-trustee and separate trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such co-trustee or separate trustee jointly (it being
understood that such co-trustee or separate trustee is not authorized to
act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the MART
Assets or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such co-trustee or separate trustee, but solely at
the direction of the Trustee;
30
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Board of Managers and the Trustee acting jointly may at any
time accept the resignation of or remove any co-trustee or separate
trustee appointed with respect to such MART Assets.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then co-trustees and separate
trustees, as effectively as if given to each of them. Every instrument
appointing any co-trustee or separate trustee shall refer to this Agreement and
the conditions of this Article V. Each co-trustee and separate trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Each such instrument shall be filed with the
Trustee.
(d) Any co-trustee or separate trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any co-trustee or separate trustee
shall die, become incapable of acting, resign or be removed or it shall become
illegal for such co-trustee or separate trustee to act, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
Section 5.11 Eligibility Requirements for the Trustee. The Trustee shall
at all times: (a) be a corporation or a banking association organized under the
laws of the United States of America or any state thereof; (b) have its
principal place of business in the State of Delaware; provided, however, that
this clause (b) shall be inapplicable if another trustee or co-trustee of MART
having its principal place of business in Delaware shall have been appointed;
(c) be authorized to exercise corporate trust powers; (d) be qualified to act
as the trustee in those states in which an Authorized Officer has notified the
Trustee in writing that the MART Assets are located (or have appointed a
co-trustee or separate trustee to act as the trustee in such state); and (e)
have, or be a wholly owned subsidiary of an entity which has, a combined
capital and surplus of not less than $50,000,000.
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ARTICLE VI
TERMINATION OF TRUST AGREEMENT
Section 6.1 Termination of Trust Agreement. (a) In accordance with Section
3808(c) of the Business Trust Statute, MART shall have perpetual existence. So
long as no Securities or Certificates are outstanding, this Agreement may also
terminate and MART may dissolve at the express written direction of the Board
of Managers.
(b) Notwithstanding the foregoing, the compensation and indemnification
provisions of Section 5.7 shall survive the termination of this Agreement and
the dissolution of MART.
(c) Upon termination of MART, the Trustee shall file with the Secretary of
State a certificate of cancellation meeting the requirements of Section 3810(d)
of the Business Trust Statute.
ARTICLE VII
AMENDMENTS
Section 7.1 Amendments. (a) This Agreement may be amended by the
Beneficial Owner and the Trustee at any time; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, materially adversely effect the characterization of MART for federal
income tax purposes.
(b) Notwithstanding Section 7.1(a), this Agreement may be amended at any
time by the Trustee (acting at the direction of the Board of Managers) and the
Beneficial Owner to the extent reasonably necessary for MART and the Subtrusts
to obtain the intended characterization for federal and state income tax
purposes.
(c) Notwithstanding Sections 7.1(a) and (b), Sections 3.4 (b), (c) and
(d), Section 6.1(a) and this Section 7.1(c) shall not be amended, supplemented
or otherwise modified or rescinded or affected in any way until one year and
one day after all Securities and Certificates are paid in full without the
unanimous vote of the Board of Managers, including the affirmative vote of each
Independent Manager.
(d) In executing any amendment permitted by this Section 7.1 or the
modification thereby of MART, the Trustee shall be entitled to receive and
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement
and that all conditions precedent to the execution and delivery of such
amendment by the Trustee have been satisfied.
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The Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties, liabilities or immunities under
this Agreement or otherwise.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Direction of the Trustee. Notwithstanding anything herein to
the contrary, the Trustee shall take no action with respect to entering into,
disposing of or making any payment or distribution with respect to any MART
Assets except in accordance with the procedures set forth herein.
Section 8.2 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Trustee and the Beneficial Owner
and nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim in
MART or the MART Assets or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 8.3 Notices. All demands, notices and communications upon or to
the Beneficial Owner, the Trustee or MART shall be in writing, personally
delivered, sent by telecopier, overnight courier or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt at the respective addresses listed below, or at such other address as
shall be designated by such Person in a written notice to the other parties to
this Agreement from time to time.
(i) In the case of the Beneficial Owner:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
33
(ii) In the case of the Trustee:
Chase Manhattan Bank Delaware
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) In the case of MART:
MMCA Auto Receivables Trust
c/o Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
with a copy to the Trustee at the address
set forth in clause (ii) above.
Section 8.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other covenants, agreements, provisions and terms of
this Agreement.
Section 8.5 Counterparts. For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts may be
executed and delivered by facsimile and shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
Section 8.6 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Beneficial Owner and the Trustee and their
respective successors and permitted assigns.
34
Section 8.7 No Petition. Each of the Trustee and the Beneficial Owner, by
entering into this Agreement, hereby covenants and agrees that it will not at
any time institute against MART, or join in any institution against MART of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law in connection with any obligations relating to this Agreement or
any Securities or Certificates.
Section 8.8 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 8.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, EXCEPT THAT, PURSUANT TO SECTION 3809 OF TITLE 12 OF THE
DELAWARE CODE, THE DOCTRINE OF MERGER SHALL NOT BE APPLICABLE TO MART.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
By: ___________________________________
Name:
Title:
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC.,
as Beneficial Owner
By: ___________________________________
Name:
Title:
EXHIBIT A
Form of Certificate of Trust
THIS Certificate of Trust of MMCA Auto Receivables Trust (the "Trust") is
being duly executed and filed by the undersigned, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. C. ss.3801 et
seq.) (the "Act").
1. Name. The name of the business formed hereby is MMCA Auto Receivables
Trust.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are Chase Manhattan Bank Delaware, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Department.
3. Series Trust. The Trust shall be a series trust and the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against the
assets of such series only, and not against the assets of the Trust generally.
4. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3810 of the Act.
CHASE MANHATTAN BANK DELAWARE, not on
its individual capacity but solely as trustee
By: ___________________________________
Name:
Title:
A-1
EXHIBIT B
MMCA AUTO RECEIVABLES TRUST
Chase Manhattan Bank Delaware
0000 Xxxxx Xxxxxx Xxxxxx
Attention: Corporate Trust Department
October 1, 1999
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Trust Agreement,
dated as of October 1, 1999 (the "Trust Agreement"), between Mitsubishi Motors
Credit of America, Inc., as beneficial owner, and Chase Manhattan Bank, as
trustee. Capitalized terms used but not defined in this notice have the
meanings assigned to them pursuant to Section 1.1 of the Trust Agreement.
Notice is hereby given pursuant to Section 3.10(l) of the Trust Agreement
that each of the persons named on Schedule A hereto has been duly appointed and
is duly qualified as an officer of MMCA Auto Receivables Trust as of the date
of this notice, holding the office or offices set forth opposite his or her
name. Each of such persons shall be an Authorized Officer for purposes of the
Trust Agreement. The signature of each of such persons set forth opposite such
person's name is a specimen of such person's genuine signature.
MMCA AUTO RECEIVABLES TRUST
By: ___________________________________
Name:
Title:
B-1
SCHEDULE A
Name Office Signature
-------------------- ------------------------- --------------------------
S-1
