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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
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
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
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 accor
dance 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 "Benefi cial 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 correla tive to the foregoing.
"Agreement" shall have the meaning set forth in the preamble
hereto.
"Authorized Officer" shall have the meaning set forth in
Section 3.10(d).
"Beneficial Owner" shall mean MMCA in its capacity as the
exclusive beneficial owner of MART and its successors and assigns in such
capacity.
"Board of Managers" shall have the meaning set forth in
Section 3.1.
"Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions or trust companies in New York,
New York, Wilmington, Delaware or Los Angeles, California shall be authorized
or obligated by law, regulation or executive order to be closed.
"Business Trust Statute" shall have the meaning set forth in
Section 2.5.
"Certificate of Trust" shall mean the Certificate of Trust
in substantially the form of Exhibit A hereto filed for MART pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificates" shall have the meaning set forth in Section
2.2(d).
"Chief Accounting Officer" shall have the meaning set forth
in Section 3.10(c).
"Chief Executive Officer" shall have the meaning set forth
in Section 3.10(a).
"Chief Financial Officer" shall have the meaning set forth
in Section 3.10(b).
"Commission" shall mean the Securities and Exchange
Commission.
"Contracts" shall have the meaning set forth in Section
2.2(a).
"Corporate Trust Office" shall mean, with respect to the
Trustee, the principal corporate trust office of the Trustee located at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or at such other address as the Trustee
may designate from time to time by notice to the Board of Managers, or the
principal corporate trust office of any successor Trustee (the address of
which the successor Trustee will notify the Board of Managers).
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Indemnified Person" and "Indemnified Persons" shall have
the meanings set forth in Section 5.7(b).
"Indentures" shall have the meaning set forth in Section
2.2(e).
"Independent Manager" shall have the meaning set forth in
Section 3.4(c).
"Insolvency Event" shall mean, with respect to any Person,
(i) the making of a general assignment for the benefit of creditors, (ii) the
filing of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt
or insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in clause (vii)
below, (vi) seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator of such Person or of all or any substantial
part of the assets of such Person or (vii) the failure to obtain dismissal
within 60 days of the commencement of any proceeding against such Person
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"Manager" shall have the meaning set forth in Section 3.2.
"MART" shall mean MMCA Auto Receivables Trust, a business
trust established pursuant to this Agreement and the Business Trust Statute,
and its successors and assigns.
"MART Assets" shall mean, as of any date of determination,
all right, title and interest of MART in, to and under the Contracts and any
related property, Certificates representing beneficial interests therein and
all other property acquired by MART from MMCA or any other Person from time to
time as of such date of determination and all proceeds thereof.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc.,
a Xxxx xxxx corporation, and its successor and assigns.
"Opinion of Counsel" shall mean a written opinion of counsel
of MART, who may be an employee of MART or any Affiliate of MART or outside
counsel to MART or any Affiliate of MART.
"Original Agreement" shall have the meaning set forth in the
recitals of this Agreement.
"Person" shall mean a legal person, including any
individual, corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, limited liability partnership,
trust, unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Pooling Agreements" shall have the meaning set forth in
Section 2.2(c).
"Rating Agency" shall mean any nationally recognized
statistical rating organization.
"Responsible Officer" shall mean, with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee with
direct responsibility for the adminis tration of this Agreement and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"Securities" shall have the meaning set forth in Section
2.2(f).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Subtrust" shall have the meaning set forth in Section
4.2(a).
"Subtrust Assets" shall have the meaning set forth in
Section 4.2(a).
"Subtrust Designation Certificate" shall have the meaning
set forth in Section 4.2(c).
"Trustee" shall mean Chase Manhattan Bank Delaware, a
Delaware banking corporation, acting not in its individual capacity but solely
as trustee under this Agreement, and its permitted successors and assigns in
such capacity.
"Trusts" shall have the meaning set forth on Section 2.2(c).
Section 1.2 Other Definitional Provisions.
(a) All terms in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) The words "hereof", "herein", "hereunder", and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(c) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.1 Name and Office. The trust created hereby shall
be known as "MMCA Auto Receivables Trust" or "MART", in which name the Board
of Managers may conduct the business of MART, make and execute contracts and
other instruments on behalf of MART and xxx and be sued. The office of MART
shall be at the address for MART set forth in Section 8.3 or at such other
address as an Authorized Officer may designate by written notice to the
Trustee from time to time.
Section 2.2 Purposes and Powers. The purpose of MART is to
engage solely in any or all of the following activities, all in accordance
with the terms of this Agreement:
(a) to acquire from time to time all right, title and
interest in and to installment sale contracts, receivables or leases arising
out of or relating to the sale, lease or financing of new or used motor
vehicles (including automobiles and light and heavy duty trucks), monies due
thereunder, security interests in the motor vehicles or equipment financed
thereby, proceeds from claims on insurance policies related thereto and
related rights (collectively, the "Contracts").
(b) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Contracts, collateral securing the Contracts, related
insurance policies, agreements with motor vehicle dealers or equipment dealers
or lessors or other originators or servicer of Contracts and any proceeds or
further rights associated with any of the foregoing;
(c) to transfer Contracts to trusts (collectively, the
"Trusts") pursuant to one or more pooling agreements, sale and servicing
agreements or other agreements (collectively, the "Pooling Agreements") to be
entered into by and among, among others, MART, the trustees named therein and
any entities acting as servicers of the Contracts;
(d) to authorize, sell and deliver any class of certificates
or other securities issued by the Trusts under the related Pooling Agreements
(collectively, the "Certificates");
(e) to enter into one or more indentures or other agreements
(collec tively, the "Indentures") with the trustees named therein, providing,
among other things, for the issuance of the Securities referred to in clause
(f) below and the pledging of the pools of Contracts or Certificates of any
class issued by one or more Trusts;
(f) to authorize, issue, sell and deliver one or more series
and classes of certificates, bonds, notes or other evidence of indebtedness or
other securities secured or collateralized by one or more pools of Contracts
or by Certificates (collectively, the "Securities"), provided that MART shall
have no liability under any Securities except to the extent of the one or more
pools of Contracts or Certificates securing or collateralizing such
Securities;
(g) to hold and enjoy all of the rights and privileges of
any class of any series of Certificates issued by the Trusts to MART under the
related Pooling Agreements and to hold and enjoy all of the rights and
privileges of any class of any series of Securities issued under the related
Indentures, including any class of Securities or Certificates which may be
subordinate to any other class of Securities or Certificates, respectively;
(h) to perform its obligations under the Pooling Agreements
and Indentures; and
(i) to enter into all such other agreements, to engage in
all such other activities and to exercise all such other powers permitted to
business trusts under the Business Trust Statute that are incidental to or
connected with the foregoing business or purposes or necessary or desirable to
accomplish the foregoing.
Section 2.3 Confirmation of Appointment of the Trustee. The
Beneficial Owner hereby confirms the appointment of Chase Manhattan Bank
Delaware as Trustee, effective as of the date of the Original Agreement.
Effective as of the date hereof, the Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of MART.
Section 2.4 Initial Assets. Pursuant to the Original
Agreement, MMCA, as Beneficial Owner, granted, assigned, transferred, conveyed
and set over to MART, as of the date thereof, the sum of $100. The Trustee, on
behalf of MART, has acknowledged receipt in trust from the Beneficial Owner,
as of the date thereof, of the foregoing contribu tion, 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 Xxxx xxxx
Code ss. 3801 et seq. (the "Business Trust Statute") and that this document
constitute the governing instrument of MART and (ii) solely for income and
franchise tax purposes, MART shall be treated (a) if it has a single
beneficial owner, as a non-entity, and if has more than one beneficial owner,
as a partnership, with the assets of the partnership being the assets held by
MART and the partners of the partnership being the beneficial owners. The
parties agree that, unless otherwise required by the appropriate tax
authorities, MART will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of MART
either as a non-entity or as a partnership for such tax purposes. Effective as
of the date hereof, the Trustee shall have the rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing
the purposes of MART.
Section 2.6 Situs of Trust. MART shall be located and
administered in the State of Delaware. Any bank accounts maintained by the
Trustee on behalf of MART shall be located in the State of California, the
State of Delaware or the State of New York. Payments will be received by MART
only in California, Delaware or New York, and payments will be made by MART
only from California, Delaware or New York.
Section 2.7 Title to Trust Property. Legal title to all
assets of MART shall at all times be vested in MART as a separate legal
entity, except where applicable law in any jurisdiction requires title to any
part of the assets of MART to be vested in the trustee or trustees, in which
case title shall be deemed to be vested in the Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.8 Representations and Warranties of MMCA. MMCA, as
Beneficial Owner, hereby represents and warrants to the Trustee that:
(a) Organization, etc. The Beneficial Owner has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted;
(b) Due Qualification. The Beneficial Owner is duly
qualified to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business requires
such qualifications;
(c) Due Authorization and Binding Obligation. This Agreement
has been duly authorized, executed and delivered by the Beneficial Owner, and
is the valid, binding and enforceable obligation of the Beneficial Owner
except as the same may be limited by insolvency, bankruptcy, reorganization or
other laws relating to or affecting the enforcement of creditors' rights or by
general equity principles;
(d) No Violation. The execution, delivery and performance by
the Beneficial Owner of this Agreement and the consummation of the
transactions contem plated 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, xxxx xxxx, 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 govern mental instrumentality having
jurisdiction over the Beneficial Owner or any of its proper ties; and
(e) No Proceedings. There are no proceedings or
investigations pending or, to the Beneficial Owner's best knowledge,
threatened before any governmental authori ties (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 determina
tion 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 Affili ates;
(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 Benefi cial Owner (except for MART).
(d) Notwithstanding any provision in this Agreement to the
contrary, MMCA may pay the fees and expenses and indemnify (i) the Trustee
pursuant to this Agreement and (ii) any underwriter, placement agent, initial
purchaser for resale or other Person performing similar functions in
connection with the issuance of any Securities or Certificates.
ARTICLE III
MANAGEMENT OF MART; THE BOARD OF MANAGERS; OFFICERS
Section 3.1 General Management of MART. (a) The business,
properties and affairs of MART shall be managed by the Board of Managers (the
"Board of Manag ers") which, without limiting the generality of the foregoing,
shall have the power to appoint officers of MART, to appoint and direct
agents, to grant general or limited authority to officers, employees and
agents of MART, and to make, execute and deliver contracts and other
instruments and documents in the name and on behalf of MART, including the
documentation referred to in Section 3.1(b).
(b) The Board of Managers shall have the power and authority
to execute, deliver and file with the Commission in the name of and on behalf
of MART one or more registration statements in connection with the offering of
Securities or Certificates by MART or any Affiliate of MART. The Board of
Managers shall also have the power and authority to execute, deliver and file
with the Commission in the name of and on behalf of MART such other
documentation that is required to be executed, delivered and filed with the
Commission from time to time under the Securities Act or the Exchange Act in
connection with the offering of Securities or Certificates by MART or any
Affiliate of MART.
Section 3.2 Appointment and Term. The Beneficial Owner shall
be entitled to appoint from time to time persons to serve as the managers
(each, a "Manager") on the Board of Managers. Managers shall serve until their
respective successors are appointed by the Beneficial Owner or until their
earlier death, resignation, retirement or removal.
Section 3.3 Number. The number of Managers which shall
constitute the whole Board of Managers shall be five. The number may be
increased or reduced from time to time by amendment of this Agreement.
Section 3.4 Standard of Care; Independent Managers. (a) A
Manager shall owe such fiduciary duties of loyalty and due care to MART as is
required of a director of a Delaware corporation under applicable Delaware
law. Every Manager shall discharge his or her duties in good faith, with the
care an ordinary prudent person in a like position would exercise under
similar circumstances, and in a manner her or she reasonably believes to be in
the best interest of MART.
(b) The Board of Managers of MART shall include at least
two Independent Managers until one year and one day after all Securities and
Certificates are paid in full. So long as any Securities or Certificates rated
by any Rating Agency are outstanding, this Section 3.4(b) and Sections 3.4(c)
and (d) shall not be amended without the prior written consent of each of the
Independent Managers. When voting on matters subject to the vote of the Board
of Managers, including those matters specified in Section 3.4(d), (i)
notwithstanding that MART is not then subject to an Insolvency Event, the
Independent Managers shall take into account the interests of the creditors of
MART as well as the interests of MART and (ii) if MART is then subject to an
Insolvency Event, in any action requiring the vote of the Independent Managers
pursuant to Section 3.4(d), the Independent Managers and each other Manager
shall owe their fiduciary duties to MART and the creditors of MART. Except as
provided in Section 3.4(d), any action permitted or required to be taken by
the Board of Managers may be taken by a simple majority of the members of the
Board of Managers. The actions set forth in Section 3.4(d) shall be the only
actions by the Board of Managers that shall require the affirmative vote of
100% of the Board of Managers or the vote of the majority that includes at
least two Independent Managers.
(c) The following terms shall have the meanings set forth
below (which other than the definition of "Independent Manager" set forth in
clause (i) below shall be solely for purposes of this Section 3.4(c)):
(i) An "Independent Manager" shall be an individual
who: (A) is not and has not been employed by MMCA or any of its
subsidiaries or affiliates as a director, officer or employee within
the five years immediately prior to such individual's appointment as
an Independent Manager; (B) is not and has not been affiliated with
either a significant customer of MMCA or any of its subsidiaries or
affiliates within the five years immediately prior to such
individual's appointment as an Independent Manager or a significant
supplier of MMCA or any of its subsidiaries within the five years
immediately prior to such individual's appoint ment 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 appoint ment 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 affili ates within the five years immediately
prior to such individual's appointment as an Independent Manager; (F)
is not the beneficial owner at the time of such individ ual'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," "con trolled 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 major ity 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 consid eration 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 consider ation for the supplier's
products and services in excess of 3% of the consolidated gross
revenues of MMCA and its subsidiaries during such fiscal year.
(viii) MMCA or any of its subsidiaries and
affiliates shall be deemed a "significant customer" of a company if
MMCA and any of its subsidiaries and affiliates collectively were the
direct source during such company's last fiscal year in excess of 3%
of the gross revenues which such company received from the sale of
its products and services during such fiscal year.
(ix) MMCA or any of its subsidiaries and affiliates
shall be deemed a "significant supplier" of a company if MMCA and any
of its subsidiaries or affiliates collectively received in such
company's fiscal year payments from such company in excess of 3% of
the gross revenues which such company received during such fiscal
year for the sale of its products and services.
(x) A person shall be deemed to have "significant
personal services contract(s) with MMCA or any of its subsidiaries or
affiliates" if the fees and other compensation received by the person
pursuant to personal services contract(s) with MMCA and any of its
subsidiaries or affiliates exceeded or would exceed 3% of his or her
gross revenues during the last calendar year.
(xi) A tax-exempt entity shall be deemed to receive
"significant contributions from MMCA or any of its subsidiaries or
affiliates" if such tax- exempt entity received during its last
fiscal year, or expects to receive during its current fiscal year,
contributions from MMCA or its subsidiaries or affiliates in excess
of the lesser of (i) 3% of the consolidated gross revenues of MMCA
and its subsidiaries during such fiscal year and (ii) 1% of the
contributions received by the tax-exempt entity during such fiscal
year.
(xii) A person shall be deemed to be a "major
creditor of MMCA or any of its subsidiaries or affiliates" if it is a
financial institution which MMCA, such subsidiary or such affiliate
owes outstanding indebtedness for borrowed money in a sum exceeding
more than 5% of MMCA's total consolidated assets.
(d) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers MART, MART shall not,
without the affirmative vote of a majority of the members of the Board of
Managers, including each Independent Manager, do any of the following:
(i) engage in any business or activity other than
those set forth in Section 2.2;
(ii) incur any indebtedness, or assume or guaranty
any indebtedness of any other person, other than (A) indebtedness
incurred to MMCA or any Affiliate of MART in connection with the
acquisition of Contracts from time to time and the other businesses
and activities set forth in Section 2.2, which indebtedness will be
subordinate to any Certificates and any Securities and will only be
payable to the extent MART has available cash to pay such
indebtedness; (B) indebtedness incurred in connection with Securities
or Certificates issued in compliance with a Pooling Agreement or an
Indenture; (C) salaries, fees and expenses to its profes sional
advisors and counsel, Managers, officers and employees; (D)
indebtedness where the person to whom the indebtedness is owing has
delivered to MART an undertaking that it will not institute against,
or join any other person in instituting against, MART any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or
other proceeding under any federal or state bankruptcy or similar
law, for one year and one day after all Securities and Certificates
are paid in full, or look to property or assets of MART in respect of
such obligations and that such obligations shall not constitute a
claim against MART in the event that MART's assets are insufficient
to pay in full such obligations; and (E) other indebtedness not
exceeding $5,000 at any one time outstanding, on account of
incidentals or services supplied or furnished to MART; or
(iii) engage in or take any other action that would
constitute an Insolvency Event.
Section 3.5 Resignation. Any Manager may resign at any time
upon written notice of resignation to the Trustee and the Beneficial Owner.
Any resignation shall be effective immediately unless a date certain is
specified for it to take effect, in which event it shall be effective upon
such date, and acceptance of any resignation shall not be necessary to make it
effective, irrespective of whether the resignation is tendered subject to such
acceptance.
Section 3.6 Removal of Managers. Any Manager may be removed,
either for or without cause, by the Beneficial Owner.
Section 3.7 Filling of Vacancies. In the case of any
increase in the number of Managers, or of any vacancy in the Board of
Managers, the additional Manager shall be appointed by the Beneficial Owner.
Section 3.8 Managers' Compensation. Any or all Managers may
receive such reasonable compensation for their services, whether in the form
of salary or other wise, 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 Execu tive 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 Execu tive Officer shall appoint a chief financial officer of MART (the
"Chief Financial Officer"). The Chief Financial Officer shall be the chief
financial officer of MART. Except as otherwise provided by the Board of
Managers or the Chief Executive Officer, the Chief Financial Officer shall
perform all necessary acts and duties in connection with the administration of
the financial affairs of MART and shall generally perform all the duties
usually appertaining to the office of the chief financial officer of a
business. In the absence of the Chief Financial Officer, the duties of the
Chief Financial Officer shall be performed and the authority of the Chief
Financial Officer shall be exercised by such officer as may be designated by
the Chief Executive Officer, with the right reserved to the Board of Manag ers
to make the designation or supersede any designation so made.
(c) The Board of Managers, by a simple majority, or the
Chief Execu tive 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 Manag ers to make the designation or supersede
any designation so made.
(d) The Board of Managers, by a simple majority, or the
Chief Execu tive 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 compen sation of the employees, agents and officers of MART. The Chief
Executive Officer shall also have the authority to appoint, suspend or remove
any other Authorized Officer, employee or agent of MART.
(f) All Authorized Officers appointed by the Board of
Managers or the Chief Executive Officer shall hold office until their
respective successors are appointed or until their earlier resignation or
removal. All Authorized Officers shall hold office at the pleasure of the
Board of Managers. If any vacancy shall occur in any office, the Board of
Managers or the Chief Executive Officer may appoint a successor to fill such
vacancy.
(g) The Chief Executive Officer may be removed at any time,
either for or without cause, by a simple majority of the Board of Managers.
Any of the other Authorized Officers may be removed at any time, either for or
without cause, by a simple majority of the Board of Managers or the Chief
Executive Officer.
(h) Any Authorized Officer may resign at any time upon
written notice of resignation to MART. Any resignation shall be effective
immediately unless a date certain is specified for it to take effect, in which
event it shall be effective upon such date, and acceptance of any resignation
shall not be necessary to make it effective, irrespective of whether the
resignation is tendered subject to such acceptance.
(i) Any Authorized Officer may hold two or more offices the
duties of which can be consistently performed by the same Person.
(j) In addition to the foregoing specifically enumerated
duties and authority, the Authorized Officers shall perform such other duties
and may exercise such further authority as the Board of Managers or the Chief
Executive Officer may determine from time to time or may be assigned to them
from time to time by any superior officer.
(k) Except as fixed or controlled by the Board of Managers,
compensa tion of all officers and employees shall be fixed by the Chief
Executive Officer or by other Authorized Officers exercising authority granted
to them.
(l) On or prior to the date of this Agreement, an Authorized
Officer shall provide a written notice to the Trustee in substantially the
form attached hereto as Exhibit B setting forth the name and title of each
officer of MART who shall be an Authorized Officer for purposes of this
Agreement. An Authorized Officer shall also provide prompt written notice to
the Trustee if any additional Person shall be appointed an Authorized Officer
for purposes of this Agreement or if any Person shall no longer be an
Authorized Officer for purposes of this Agreement because of such officer's
resignation, removal or otherwise. The Trustee shall be entitled to rely upon,
and shall be protected in relying upon, any written notice delivered to the
Trustee pursuant to this Section 3.10(l).
Section 3.11 Liability of Authorized Officers. No Authorized
Officer shall be personally liable to MART or the Beneficial Owner for any
breach of its duties as an Authorized Officer; provided, however, that the
foregoing shall not eliminate or limit the liability of an Authorized Officer
of MART for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law.
ARTICLE IV
THE SUBTRUSTS
Section 4.1 Beneficial Ownership. The Beneficial Owner shall
be the exclusive beneficial owner of MART and each Subtrust.
Section 4.2 Subtrusts. (a) The MART Assets, immediately upon
the acquisition thereof by MART, shall be allocated to, and identified only
with, a Subtrust under this Agreement (each such subtrust, a "Subtrust", and
the assets allocated to each such Subtrust, "Subtrust Assets"). Each Subtrust
shall be a separate series of MART pursuant to Section 3806(b)(2) of the
Business Trust Statute. The Board of Managers shall cause an Authorized
Officer to account for and record separately all Subtrust Assets and the
proceeds thereof allocated to any Subtrust from the Subtrust Assets and the
proceeds thereof allocated to any other Subtrust. The Board of Managers shall
cause an Authorized Officer to maintain separate and distinct records for the
Subtrust Assets related to each Subtrust and to hold and account for the
Subtrust Assets related to each Subtrust separately from the Subtrust Assets
related to any other Subtrust. Except to the extent required by law or
specified in this Agreement, the debts, liabilities and expenses incurred,
contracted for or otherwise existing with respect to any Subtrust shall be
enforceable against the assets of such Subtrust only, and not against the
assets of MART generally or of any other Subtrust, and, except to the extent
required by law or specified in this Agreement, none of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to MART generally shall be enforceable against the
assets of any Subtrust.
(b) Notice of the limitation on interseries liabilities
between Subtrusts applicable to each Subtrust and the Subtrust Assets has been
set forth in the Certificate of Trust as filed in the office of the Secretary
of State pursuant to the Business Trust Statute and the Original Agreement. It
is the express intent of the parties hereto that effective upon the giving of
such notice in the Certificate of Trust, the statutory provisions of Section
3804 of the Business Trust Statute relating to limitations on interseries
liabilities (and the statutory effect under Section 3804 of the Business Trust
Statute of setting forth such notice in the Certificate of Trust) became
applicable to MART, the Trustee, the Beneficial Owner and the Subtrust Assets
related to each Subtrust. The limitation on interseries liabilities is
included in the Certificate of Trust as filed with the Secretary of State in
the form attached hereto as Exhibit A.
(c) Any Security and every note, bond, contract or other
undertaking issued by or on behalf of any Subtrust shall include a recitation
limiting the obligation represented thereby to the related Subtrust and the
related Subtrust Assets. Any such Security, note, bond, contract or
undertaking, whether secured or unsecured, shall also include an
acknowledgment and agreement by the holder thereof to the effect that any
claim that such holder may have at any time against any MART Assets that are
allocated to an unrelated Subtrust, and any claim that such holder may have at
any time against MART that such holder may seek to enforce against any MART
Assets that are allocated to an unrelated Subtrust, shall be subordinate to
the payment in full, including post-petition interest, in the event that MART
becomes subject to an Insolvency Event, of the claims of the holders of any
Securities or Certificates that are related to such unrelated Subtrust and the
holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust. Any Security and every note, bond,
contract or other undertaking issued by or on behalf of any Subtrust shall
include a recitation that each holder or owner of such Security, note, bond,
contract or other undertaking shall, by acceptance of such Security, note,
bond, contract or other undertaking (or, in the case of an owner, a beneficial
interest in such Security, note, bond, contract or other undertaking),
irrevocably makes the election afforded by Title 00 Xxxxxx Xxxxxx Code Section
1111(b)(1)(A)(i) to secured creditors to receive the treatment afforded by
Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(2) with respect to any secured
claim that such holder or owner may have at any time against the seller.
(d) The Subtrust to which any MART Assets shall be allocated
shall be specified in a certificate (each, a "Subtrust Designation
Certificate") executed by an Authorized Officer and delivered to the Trustee
not less than one Business Day prior to the acquisition of the applicable MART
Assets. Each Subtrust Designation Certificate shall include the following:
(i) a designation of the Subtrust to which the MART
Assets are to be allocated, which shall be in form and substance
sufficient to allow the Trustee to differentiate between the Subtrust
to which the MART Assets are to be allocated and any other Subtrust;
(ii) the date on which the MART Assets to be
allocated to such Subtrust are to be transferred to MART and
allocated to such Subtrust; and
(iii) a list of the MART Assets to be allocated to
the Subtrust, which shall identify the MART Assets in such a manner
as may be reasonably required by the Trustee to differentiate between
such MART Assets allocated to such Subtrust and any other MART
Assets.
ARTICLE V
THE TRUSTEE
Section 5.1 Duties of the Trustee. (a) The Trustee is
authorized and directed to execute and deliver this Agreement and each
certificate or other document attached as an exhibit to or contemplated by
this Agreement to which MART is to be a party, in such form as the Beneficial
Owner, the Board of Managers or any authorized Officer shall approve, such
approval in the case of this Agreement to be evidenced by the signature of an
authorized officer of the Beneficial Owner on the signature page hereto.
Neither the Board of Managers nor any authorized Officer shall direct the
Trustee to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of MART or the Trustee under this
Agreement, and the Trustee shall not be obligated to follow any such
direction, if given. The Trustee shall perform such duties, and only such
duties, as are specifically set forth in this Agreement. No implied covenants
or obligations on the part of the Trustee shall be read into this Agreement.
(b) In addition to the foregoing, the Trustee is authorized
(but shall not be obligated) to take all actions required of MART pursuant to
this Agreement. The Trustee is further authorized from time to time to take
such action on behalf of MART as is permitted by this Agreement and which any
Authorized Officer recommends with respect to the Trust Agreement, except to
the extent that this Agreement expressly requires the consent of the Board of
Managers for such action.
(c) It shall be the duty of the Trustee to discharge (or
cause to be discharged) all of its responsibilities pursuant to the terms of
this Agreement. Notwith standing 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, 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 Receiv xxxxx.
(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 require ments 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 require ments of
this Agreement.
(e) Neither the Board of Managers or an Authorized Officer
shall direct the Trustee to take any action that is inconsistent with
Section2.33 or 2.9 or the terms of this Agreement.
(f) The Trustee shall not be required (i) to keep itself
informed as to t he performance or observance by the Board of Managers or an
Authorized Officer or any obligation 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 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 inaccu racy of any
representation or warranty contained in Section 5.6 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 reason ably assured or
provided to it;
(c) the Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by MMCA or for the
form, character, genuineness, sufficiency, value or validity of any MART
Assets or for or in respect of the validity or sufficiency of any agreement or
other document to which MART is a party, and in no event shall the Trustee
assume or incur any liability, duty or obligation to the Board of Managers,
other than as expressly provided for herein.
(d) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement, at the request, order or direction of the Board of
Managers or an Authorized Officer, unless the Beneficial Owner has offered to
the Trustee security or indemnity satisfactory to it against the fees, costs,
expenses and liabilities that may be incurred by the Trustee therein or
thereby; and
(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 monitor ing the performance of the Board of Managers or an
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 an Authorized Officer; Rights o the Trustee. (a) Notwithstanding the
foregoing, and in accordance with Section 5.2(d), the Trustee shall not be
required to take any action or refrain from taking action hereunder if the
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Trustee or is contrary to the terms of this Agreement or is otherwise contrary
to law.
(b) Whenever the Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement, the Trustee may request an Opinion
of Counsel (at the expense of MART) as to such applica tion, 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 connec tion 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 individ ual capacity that are not related to the ownership or
the administration of the MART Assets.
(d) The Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any MART Assets except (i) in accordance
with powers granted to and the authority conferred upon the Trustee pursuant
to this Agreement and (ii) pursuant to any document or instruction delivered
to the Trustee in accordance with this Agreement.
(e) Except in accordance with the written instructions
furnished by an Authorized Officer and except as provided herein, the Trustee
shall have no duty (i) to see to any recording or filing of any document, (ii)
to see to the payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owing with respect
to, assessed or levied against any part of MART, (iii) to confirm or verify
any financial statements of MART or any statements or reports of the Board of
Managers or an Authorized Officer or (iv) to inspect MART's books and records
at any time.
(f) The Trustee shall not be required to take any action
under this Agreement unless the Trustee shall have been indemnified by the
Beneficial Owner, in manner and form satisfactory to the Trustee, against any
liability, cost or expense (includ ing 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 Agree ment and as it may be directed from time
to time by the Board of Managers or an Autho rized 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 representa tion, warranty, covenant, agreement, indebtedness or other
obligation of MART or any Subtrust.
(k) Prior to taking any action under this Agreement, the
Trustee shall be entitled to receive written instructions of an Authorized
Officer pursuant to this Section 5.3.
(l) The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on the instructions of an
Authorized Officer.
(m) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document.
Section 5.4 Furnishing of Documents. The Trustee shall
furnish to the Board of Managers or an Authorized Officer, promptly upon
receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trustee by others.
Section 5.5 Representations and Warranties of the Trustee.
(a) Chase Manhattan Bank Delaware hereby represents and warrants to the
Beneficial Owner that:
(i) it is a banking corporation duly organized,
validly existing and in good standing under the laws of Delaware and
has its principal place of business in the State of Delaware;
(ii) it has full power, authority and legal right
to execute, deliver and perform this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of this Agreement;
(iii) the execution, delivery and performance by it
of this Agree ment (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, judg ment 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 perfor xxxxx or ability to perform its duties as
trustee under this Agreement or on the transactions contemplated in
this Agreement;
(iv) the execution, delivery and performance by the
Trustee of this Agreement shall not require the authorization,
consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of,
any governmental authority or agency regulating the banking and
corporate trust activities of the Trustee (other than as may have
been made or received, as the case may be, and other than the filing
of the Certificate of Trust with the Secretary of State); and
(v) this Agreement has been duly executed and
delivered by the Trustee and constitutes the legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, except as enforceability may be limited by
insolvency, receivership, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 5.6 Reliance; Advice of Counsel. (a) The Trustee
shall incur no liability to any Person in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties and need not
investigate any fact or matter in any such document. The Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Trustee may for all purposes hereof rely
on a certificate, signed by the president or any vice president, the treasurer
or the secretary or other authorized officers of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection to
the Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement, the Trustee: (i) may, at the expense of MART, act directly or
through its agents, attorneys, custodians or nominees pursuant to agreements
entered into with any of them, and the Trustee shall not be liable for the
conduct or misconduct of such agents, attorneys, custodians or nominees if
such agents, attorneys, custodians or nominees shall have been selected by the
Trustee with reasonable care and (ii) may, at the expense of MART, consult
with counsel, accountants and other skilled professionals to be selected with
reasonable care and employed by it. The Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with any
Opinion of Counsel or advice of such accountants or other such skilled
professionals stating that such action or omission is not contrary to this
Agreement.
Section 5.7 Compensation and Indemnity.
(a) The Trustee shall receive as compensation for its
services hereunder such fees as shall be separately agreed upon from time to
time between the Beneficial Owner and the Trustee. The Trustee shall be
entitled at all times to be reimbursed by the Beneficial Owner for its
reasonable expenses hereunder, including the reasonable expenses and
disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
(b) Subject to the terms of this Agreement, the Beneficial
Owner shall hold harmless the Trustee, its officers, directors, employees,
shareholders and agents (collectively the "Indemnified Persons" or
individually an "Indemnified Person"), against any and all losses,
liabilities, claims, actions, suits, costs, damages, expenses and liabilities,
joint or several (including, but not limited to, any investigation, reasonable
legal and other expenses (including expenses of investigation) of any kind and
nature whatsoever incurred in connection with, and any amount paid in
settlement of any action, suit, proceeding or claim) (collectively, "Losses")
which such Indemnified Persons may become subject to or liable for by reason
of Trustee's acting as trustee under this Agreement. Notwithstanding the
foregoing, the Beneficial Owner shall not be liable to any Indemnified Person,
and shall not be required to indemnify the Trustee under this Agreement, for
any Losses arising out of the negligence, bad faith or wilful misconduct of
such Indemnified Person or any other Indemnified Person.
Section 5.8 Resignation or Removal of the Trustee. (a) The
Trustee shall not resign without the consent of the Board of Managers unless
(i) the Trustee shall cease to be eligible in accordance with the provisions
of Section 5.11, (ii) the Trustee shall be incapable of acting or it shall be
illegal for the Trustee to act, or (iii) the Trustee shall have given at least
60 days' prior written notice to the Board of Managers.
(b) The Board of Managers may remove the Trustee (and shall
remove the Trustee in the case of the occurrence of an event described in
clause (i) or (iv)):
(i) if the Trustee shall cease to be eligible in
accordance with the provisions of Section 5.11 and shall fail to
resign after a written request therefor;
(ii) if the Trustee shall be adjudged bankrupt or
insolvent;
(iii) if a receiver or other public officer shall
be appointed or take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation;
(iv) if the Trustee shall otherwise be incapable of
acting or it shall be illegal for the Trustee to act; or
(v) at its discretion.
(c) If the Trustee is removed or if a vacancy exists in the
office of trustee for any reason, the Board of Managers shall promptly appoint
a successor Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing trustee so removed, one copy to
the successor Trustee). All costs associated with the resignation or removal
of the Trustee and the appointment of a successor Trustee shall be general
expenses of MART. If a successor Trustee shall not have been appointed within
30 days of such resignation or removal, the outgoing Trustee may petition a
court of competent jurisdiction for the appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the provisions of this
Section 5.8 shall not become effective until a written acceptance of
appointment is delivered by the successor Trustee. Any successor Trustee
appointed pursuant to this Section 5.8 shall be eligible to act in such
capacity in accordance with Section 5.11 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of the outgoing Trustee under this Agreement, with like
effect as if originally named as trustee.
(e) The outgoing Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all books, records, accounts,
documents, statements and monies held by it under this Agreement. The outgoing
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to fully and certainly vest and confirm in the
successor Trustee all such rights, powers, duties and obligations. The
outgoing Trustee shall cooperate with the successor Trustee to ensure that the
successor Trustee has all books, records, accounts, documents, statements,
monies held by it under this Agreement and any other relevant information in
the possession of the outgoing Trustee relating to the MART Assets.
(f) Upon the appointment and acceptance of a successor
Trustee pursuant to this Section 5.8, such successor Trustee shall file an
amendment to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Trustee in the
State of Delaware.
Section 5.9 Merger or Consolidation of the Trustee. Any
corporation or other Person which may be merged, converted or consolidated
with Chase Manhattan Bank Delaware or any corporation resulting from any
merger, conversion or consolidation to which Chase Manhattan Bank Delaware
shall be a party, or any corporation or other Person succeeding to all or
substantially all of the corporate trust business of Chase Manhattan Bank
Delaware, shall be deemed the successor of such Trustee hereunder; provided,
however, that such corporation shall be eligible in accordance with the
provisions of Section 5.11, and without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
provided, that such corporation shall file an amendment to the Certificate of
Trust with the Secretary of State as provided in Section 5.8(e).
Section 5.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provision of this Agreement, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which any
MART Assets may then be located, the Beneficial Owner hereby grants the
Trustee the authority and power to execute and deliver all instruments to
appoint one or more Persons to act as co-trustee, jointly with the Trustee, or
as separate trustee or trustees, of all or any part of MART and the MART
Assets, and to vest in such Person, in such capacity, such title to MART, or
any MART Assets and, subject to the other provisions of this Section 5.10,
such powers, duties, obligations, rights and trusts as the Trustee may
consider necessary or desirable. No co- trustee or separate trustee under this
Agreement shall be required to be eligible in accor dance 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 incompe tent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the MART Assets or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such co-trustee or separate trustee, but solely
at the direction of the Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other
trustee under this Agreement; and
(iii) the Board of Managers and the Trustee acting
jointly may at any time accept the resignation of or remove any
co-trustee or separate trustee appointed with respect to such MART
Assets.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then co-trustees and
separate trustees, as effectively as if given to each of them. Every
instrument appointing any co-trustee or separate trustee shall refer to this
Agreement and the conditions of this Article V. Each co- trustee and separate
trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Each such instrument shall be filed with the
Trustee.
(d) Any co-trustee or separate trustee may at any time
appoint the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any co-trustee
or separate trustee shall die, become incapable of acting, resign or be
removed or it shall become illegal for such co-trustee or separate trustee to
act, all of its estates, properties, rights, remedies and trusts shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
Section 5.11 Eligibility Requirements for the Trustee. The
Trustee shall at all times: (a) be a corporation or a banking association
organized under the laws of the United States of America or any state thereof;
(b) have its principal place of business in the State of Delaware; provided,
however, that this clause (b) shall be inapplicable if another trustee or
co-trustee of MART having its principal place of business in Delaware shall
have been appointed; (c) be authorized to exercise corporate trust powers; (d)
be qualified to act as the trustee in those states in which an Authorized
Officer has notified the Trustee in writing that the MART Assets are located
(or have appointed a co-trustee or separate trustee to act as the trustee in
such state); and (e) have, or be a wholly owned subsidiary of an entity which
has, a combined capital and surplus of not less than $50,000,000.
ARTICLE VI
TERMINATION OF TRUST AGREEMENT
Section 6.1 Termination of Trust Agreement. (a) In
accordance with Section 3808(c) of the Business Trust Statute, MART shall have
perpetual existence. So long as no Securities or Certificates are outstanding,
this Agreement may also terminate and MART may dissolve at the express written
direction of the Board of Managers.
(b) Notwithstanding the foregoing, the compensation and
indemnifica tion 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 Benefi cial Owner to the extent reasonably necessary for
MART and the Subtrusts to obtain the intended characterization for federal and
state income tax purposes.
(c) Notwithstanding Sections 7.1(a) and (b), Sections 3.4
(b), (c) and (d), Section 6.1(a) and this Section 7.1(c) shall not be amended,
supplemented or otherwise modified or rescinded or affected in any way until
one year and one day after all Securities and Certificates are paid in full
without the unanimous vote of the Board of Managers, including the affirmative
vote of each Independent Manager.
(d) In executing any amendment permitted by this Section 7.1
or the modification thereby of MART, the Trustee shall be entitled to receive
and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment by the Trustee have been satisfied. The Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Trustee's
own rights, duties, liabilities or immunities under this Agreement or
otherwise.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Direction of the Trustee. Notwithstanding
anything herein to the contrary, the Trustee shall take no action with respect
to entering into, disposing of or making any payment or distribution with
respect to any MART Assets except in accor dance with the procedures set forth
herein.
Section 8.2 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Trustee and the Beneficial
Owner and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in MART or the MART Assets or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
Section 8.3 Notices. All demands, notices and communications
upon or to the Beneficial Owner, the Trustee or MART shall be in writing,
personally delivered, sent by telecopier, overnight courier or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt at the respective addresses listed below, or at such
other address as shall be designated by such Person in a written notice to the
other parties to this Agreement from time to time.
(i) In the case of the Beneficial Owner:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the case of the Trustee:
Chase Manhattan Bank Delaware
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) In the case of MART:
MMCA Auto Receivables Trust
c/o Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: [ ]
Telephone: (000) 000-0000
with a copy to the Trustee at the address
set forth in clause (ii) above.
Section 8.4 Severability of Provisions. If any one or more
of the cove nants, agreements, provisions or terms of this Agreement shall be
for any reason whatso ever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agree ment and shall in no way affect
the validity or enforceability of the other covenants, agreements, provisions
and terms of this Agreement.
Section 8.5 Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts may be executed and delivered by facsimile and shall be deemed to
be an original, and all of which counterparts shall constitute but one and the
same instrument.
Section 8.6 Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the Beneficial Owner and the
Trustee and their respective successors and permitted assigns.
Section 8.7 No Petition. Each of the Trustee and the
Beneficial Owner, by entering into this Agreement, hereby covenants and agrees
that it will not at any time institute against MART, or join in any
institution against MART of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal
or state bankruptcy or similar law in connection with any obligations relating
to this Agreement or any Securities or Certificates.
Section 8.8 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 8.9 Governing Law. THIS AGREEMENT SHALL BE CON
STRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT THAT, PURSUANT TO SECTION 3809
OF TITLE 12 OF THE DELAWARE CODE, THE DOCTRINE OF MERGER SHALL NOT BE
APPLICABLE TO MART.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
By: /s/ Xxxxx Xxxxx
--------------------------------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC.,
as Beneficial Owner
By: /s/ C.A. Xxxxxxx
-----------------------------------------------------------
Name: C.A. Xxxxxxx
Title: Executive Vice President & General Manager
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
Certifi cate of Trust in accordance with Section 3810 of the Act.
CHASE MANHATTAN BANK DELAWARE, not on its
individual capacity but solely as trustee
By: ___________________________________
Name:
Title:
EXHIBIT B
MMCA AUTO RECEIVABLES TRUST
Chase Manhattan Bank Delaware
0000 Xxxxx Xxxxxx Xxxxxx
Attention: Corporate Trust Department
October 1, 1999
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Trust
Agreement, dated as of October 1, 1999 (the "Trust Agreement"), between
Mitsubishi Motors Credit of America, Inc., as beneficial owner, and Chase
Manhattan Bank, as trustee. Capitalized terms used but not defined in this
notice have the meanings assigned to them pursuant to Section 1.1 of the Trust
Agreement.
Notice is hereby given pursuant to Section 3.10(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:
SCHEDULE A
Name Office Signature
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