EXHIBIT 4.4
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 1, 2001
(as the same may be amended, supplemented or otherwise modified from time to
time and in effect, this "Agreement"), is by and among MMCA AUTO OWNER TRUST
2001-3, a Delaware business trust (the "Issuer"), MITSUBISHI MOTORS CREDIT
OF AMERICA, INC., a Delaware corporation, as administrator (the
"Administrator"), and BANK OF TOKYO-MITSUBISHI TRUST COMPANY, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 2.470% Class A-1 Asset Backed
Notes, Floating Rate Class A-2 Asset Backed Notes, Floating Rate Class A-3
Asset Backed Notes, Floating Rate Class A-4 Asset Backed Notes and Floating
Rate Class B Asset Backed Notes (collectively, the "Notes") pursuant to the
Indenture, dated as of October 1, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"),
between the Issuer and the Indenture Trustee (terms not defined in this
Agreement shall have the meaning set forth in, or incorporated by reference
into, the Sale and Servicing Agreement or, if not defined therein, in the
Indenture or in the amended and restated trust agreement, dated as of
October 1, 1999, between the Administrator, as beneficiary, and Chase
Manhattan Bank USA, N.A. (formerly known as Chase Manhattan Bank Delaware),
a national banking association, as trustee);
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and of certain beneficial
interests in the Issuer, including (i) a Sale and Servicing Agreement, dated
as of October 1, 2001 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Sale and Servicing Agreement"), among the
Issuer, Mitsubishi Motors Credit of America, Inc., as servicer, and MMCA
Auto Receivables Trust, as seller (the "Seller"), (ii) a Letter of
Representations, dated October 12, 2001 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Note Depository
Agreement"), among the Issuer, the Administrator, the Indenture Trustee and
The Depository Trust Company ("DTC") relating to the Notes, (iii) the
Interest Rate Swap Agreements and (iv) the Indenture (the Sale and Servicing
Agreement, the Note Depository Agreement, the Interest Rate Swap Agreements
and the Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and
the Owner Trustee are required to perform certain duties in connection with
(a) the Notes and the collateral therefor pledged pursuant to the Indenture
(the "Collateral") and (b) the beneficial interests in the Issuer (the
registered holders of such interests being referred to herein as the
"Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the
Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with Respect to the Related Agreements.
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(i) The Administrator agrees to perform all its duties
as Administrator under the Note Depository Agreement. In addition,
the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the Related
Agreements. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary
to comply with the Issuer's or the Owner Trustee's duties under
the Related Agreements. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee, or shall cause the
preparation by other appropriate persons of, all such documents,
reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Related Agreements. In furtherance
of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Owner Trustee to take
pursuant to the Indenture including, without limitation, such of
the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the
Indenture):
(A) causing the Note Register to be kept and notifying the
Indenture Trustee of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register
(Section 2.5);
(B) notifying the Noteholders of the final principal payment
on their Notes (Section 2.8(e));
(C) preparing or obtaining the documents and instruments
required for authentication of the Notes and delivering the
same to the Indenture Trustee (Section 2.2);
(D) preparing, obtaining or filing of the instruments,
opinions and certificates and other documents required for
the release of collateral (Section 2.10);
(E) maintaining an office in the Borough of Manhattan, City
of New York, for registration of transfer or exchange of the
Notes (Section 3.2);
(F) causing newly appointed Paying Agents, if any, to deliver
to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(G) directing the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee
(Section 3.3);
(H) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral
and each other instrument and agreement included in the Trust
Estate (Section 3.4);
(I) preparing all supplements and amendments to the Indenture
and all financing statements, continuation statements,
instruments of further assurance and other instruments and
taking such other action as is necessary or advisable to
protect the Trust Estate (Section 3.5);
(J) delivering the Opinion of Counsel on the Closing Date and
annually delivering Opinions of Counsel as to the Trust
Estate, and annually delivering the Officer's Certificate and
certain other statements as to compliance with the Indenture
(Sections 3.6 and 3.9);
(K) identifying to the Indenture Trustee in an Officer's
Certificate a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.7(b));
(L) notifying the Indenture Trustee and the Rating Agencies
of an Event of Servicing Termination under the Sale and
Servicing Agreement and, if such Event of Servicing
Termination arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing
Agreement with respect to the Receivables, taking all
reasonable steps available to remedy such failure (Section
3.7(d));
(M) causing the Servicer to comply with Sections 3.7, 3.9,
3.10, 3.11, 3.12, 3.13, 3.14, and 4.9 and Article VII of the
Sale and Servicing Agreement (Section 3.14);
(N) preparing and obtaining documents and instruments
required for the conveyance or transfer of any of the
Issuer's properties or assets (Section 3.10(b));
(O) delivering written notice to the Indenture Trustee and
the Rating Agencies of each Event of Default under the
Indenture and each default by the Issuer, the Servicer or the
Seller under the Sale and Servicing Agreement, by the Seller
or Mitsubishi Motors Credit of America, Inc. under the
Purchase Agreement, or by any Swap Counterparty under the
Interest Rate Swap Agreements (Section 3.19);
(P) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture and preparing an
Officer's Certificate and obtaining the Opinion of Counsel
and the Independent Certificate relating thereto (Section
4.1);
(Q) delivering to the Noteholders and the Note Owners any
Officer's Certificate received from the Issuer regarding the
default in the observance or performance of any material
covenant or agreement of the Issuer made in the Indenture or
the breach of any representation or warranty of the Issuer
made in the Indenture or in any certificate or other writing
delivered pursuant to the Indenture (Sections 5.1 and
7.4(b));
(R) complying with any written direction of the Indenture
Trustee with respect to the sale of the Trust Estate at one
or more public or private sales called and conducted in any
manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(S) preparing and delivering notice to the Noteholders of the
removal of the Indenture Trustee and appointing a successor
Indenture Trustee (Section 6.8);
(T) preparing any written instruments required to confirm
more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection
with the resignation or removal of any co-trustee or separate
trustee (Section 6.10);
(U) furnishing the Indenture Trustee with the names and
addresses of the Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.1);
(V) preparing and, after execution by the Issuer, filing with
the Securities and Exchange Commission (the "Commission"),
any applicable state agencies and the Indenture Trustee,
documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state
agencies and transmitting such summaries, as necessary, to
the Noteholders (Section 7.3);
(W) delivering to the Noteholders of Officer's Certificates
and reports, if any, delivered to the Indenture Trustee
pursuant to Section 3.10 and 3.11 of the Sale and Servicing
Agreement (Section 7.4);
(X) opening one or more accounts in the Issuer's name,
preparing and delivering Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of
funds in the Trust Accounts (Sections 8.2 and 8.3);
(Y) preparing an Issuer Request and Officer's Certificate and
obtaining an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Trust Estate (Sections
8.4 and 8.5);
(Z) preparing Issuer Orders and obtaining Opinions of Counsel
with respect to the execution of supplemental indentures and
mailing to the Noteholders and to the Rating Agencies notices
with respect to such supplemental indentures (Sections 9.1,
9.2 and 9.3);
(AA) executing and delivering new Notes conforming to any
supplemental indenture (Section 9.6);
(BB) notifying the Noteholders and the Rating Agencies of
redemption of the Notes or causing the Indenture Trustee to
provide such notification (Section 10.1);
(CC) preparing and delivering all Officer's Certificates and
Opinions of Counsel and obtaining any Independent
Certificates with respect to any requests by the Issuer to
the Indenture Trustee to take any action under the Indenture
(Section 11.1(a));
(DD) preparing and delivering Officer's Certificates and
obtaining any Independent Certificates necessary for the
release of property from the lien of the Indenture (Section
11.1(b));
(EE) notifying the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the
information required pursuant to Section 11.4 of the
Indenture (Section 11.4);
(FF) preparing and delivering to the Noteholders and the
Indenture Trustee any agreements with respect to alternate
payment and notice provisions (Section 11.6);
(GG) recording the Indenture, if applicable (Section 11.15);
and
(HH) preparing Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture
Trustee under the Indenture (which compensation shall not be
limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Indenture Trustee in accordance with any
provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and
hold them harmless against, any losses, liability or expense
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Indenture; and
(D) indemnify the Owner Trustee (in its individual and trust
capacities) and its agents for, and hold them harmless
against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement, including
the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the
exercise or performance of any of their powers or duties
under the Trust Agreement.
(b) Duties with Respect to the Interest Rate Swap Agreements.
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(i) Promptly following the early termination of an
Interest Rate Swap Agreement due to a Termination Event or an
Event of Default (as such terms are defined in the related
Interest Rate Swap Agreement) (unless the Indenture Trustee is
selling or liquidating the Trust Estate), the Administrator agrees
to use reasonable efforts to cause the Issuer to enter into a
replacement interest rate swap agreement on terms similar to those
of such Interest Rate Swap Agreement with an eligible swap
counterparty. If and to the extent any Swap Termination Payments
that are received from a Swap Counterparty are to be applied as an
initial payment to a replacement Swap Counterparty, the
Administrator shall direct the Indenture Trustee to retain such
amounts and shall provide the Indenture Trustee with written
instructions regarding the application and payment of such
amounts.
(ii) If a Swap Counterparty is required to collateralize
any Interest Rate Swap transaction, the Administrator shall send
written instructions to the Indenture Trustee to establish
individual collateral accounts and to hold any securities
deposited therein in trust and invest any cash amounts therein in
accordance with the provisions of the Interest Rate Swap
Agreement.
(iii) The Administrator shall notify the Indenture
Trustee of the occurrence or existence of a default, event of
default or similar condition or event with respect to any credit
support provider for a Swap Counterparty.
(iv) The Administrator shall notify the Swap
Counterparties of any proposed amendment or supplement to this
Agreement or to any of the Indenture, the Purchase Agreement, the
Sale and Servicing Agreement or the Trust Agreement. If such
proposed amendment or supplement would adversely affect any of the
Swap Counterparties' rights or obligations under the Interest Rate
Swap Agreements or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations
under, the Interest Rate Swap Agreements, the Administrator shall
obtain the consent of the Swap Counterparties prior to the
adoption of such amendment or supplement, provided, the Swap
Counterparties' consent to any such amendment or supplement shall
not be unreasonably withheld, and provided further, a Swap
Counterparty's consent will be deemed to have been given if the
Swap Counterparty does not object in writing within ten Business
Days of receipt of a written request for such consent and in
accordance with the terms of the Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of
any proposed amendment or supplement to any Interest Rate Swap
Agreement, the Administrator shall provide the Rating Agencies
with a copy of the amendment or supplement. Unless the amendment
or supplement clarifies any term or provision, corrects any
inconsistency, cures any ambiguity, or corrects any typographical
error in the Interest Rate Swap Agreement, an amendment or
supplement to the Interest Rate Swap Agreement will be effective
only after satisfaction of the Rating Agency Condition.
(c) Additional Duties.
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(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other appropriate
persons of, and shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer
or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements or Section 5.5 of the Trust Agreement, and at
the request of the Owner Trustee shall take all appropriate action
that it is the duty of the Issuer or the Owner Trustee to take
pursuant to the Related Agreements. In furtherance thereof, the
Owner Trustee shall, on behalf of itself and of the Issuer,
execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more
powers of attorney substantially in the form of Exhibit A hereto,
appointing the Administrator the attorney-in-fact of the Owner
Trustee and the Issuer for the purpose of executing on behalf of
the Owner Trustee and the Issuer all such documents, reports,
filings, instruments, certificates and opinions. Subject to
Section 5 of this Agreement, and in accordance with the directions
of the Owner Trustee, the Administrator shall administer, perform
or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements)
as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within
the capability of the Administrator. Such responsibilities shall
include obtaining and maintaining any licenses required to be
obtained or maintained by the Issuer under the Pennsylvania Motor
Vehicle Sales Finance Act. In addition, the Administrator shall
promptly notify the Indenture Trustee and the Owner Trustee in
writing of any amendment to the Pennsylvania Motor Vehicle Sales
Finance Act that would affect the duties or obligations of the
Indenture Trustee or the Owner Trustee under any Basic Document
and shall assist the Indenture Trustee or the Owner Trustee in
obtaining and maintaining any licenses required to be obtained or
maintained by the Indenture Trustee or the Owner Trustee
thereunder. In connection therewith, the Administrator shall cause
the Seller to pay all fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to a Certificateholder as contemplated in
Section 5.2(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld
by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performing the duties of the Issuer or the Owner
Trustee set forth in Section 5.2(b) and (c), Section 5.5(a), (b),
(c), (d) and (e), the second paragraph of Section 5.5 and Section
5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to the Certificateholders.
(iv) The Administrator will provide, prior to January
15, 2002, a certificate of a Responsible Officer in form and
substance satisfactory to the Owner Trustee as to whether any tax
withholding is then required and, if required, the procedures to
be followed with respect thereto to comply with the requirements
of the Code. The Administrator shall be required to update the
letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding
shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust
Agreement or any other Related Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions or otherwise deal with any of its
affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(d) Non-Ministerial Matters.
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(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable
time before the taking of such action, the Administrator shall
have notified the Owner Trustee of the proposed action and the
Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought
by or against the Issuer (other than in connection with
the collection of the Receivables or Permitted
Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or Successor Servicers, or the consent to
the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture;
and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not, (x) make any payments to the Noteholders under the Related
Agreements or (y) take any other action that the Issuer directs
the Administrator not to take on its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Owner Trustee and the Indenture Trustee at any time during normal business
hours.
3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and, as
reimbursement for its expenses related thereto, the Administrator shall be
entitled to $500 per month which shall be solely an obligation of the
Seller.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
6. NO JOINT VENTURE. NOTHING CONTAINED IN THIS AGREEMENT. (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the others.
7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator
for any other person or entity even though such person or entity may engage
in business activities similar to those of the Issuer, the Owner Trustee or
the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign its duties hereunder by providing the Issuer with at least sixty (60)
days' prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least
sixty (60) days' prior written notice; provided, however, that in the event
the Servicer is removed as the Servicer pursuant to Section 8.1 of the Sale
and Servicing Agreement upon the occurrence of a Event of Servicing
Termination, the Servicer shall be simultaneously removed as Administrator
hereunder.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance
of any of its duties under this Agreement and, after notice of
such default, shall not cure such default within ten (10) days
(or, it such default cannot be cured in such time, shall not give
within ten (10) days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall
not have been vacated within sixty (60) days, in respect of the
Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or
any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, shall
consent to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any
substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to
pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section 8 shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven (7) days
after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until a successor Administrator shall have
been appointed by the Issuer and such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to
the Sale and Servicing Agreement, the Administrator shall immediately resign
and such Successor Servicer shall automatically become the Administrator
under this Agreement.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section
8(a), the resignation of the Administrator pursuant to Section 8(b) or the
removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to this date of such termination, resignation or
removal. The Administrator shall forthwith upon such termination pursuant to
Section 8(a) deliver to the Issuer all property and documents of or relating
to the Collateral then in the custody of the Administrator. In the event of
the resignation of the Administrator pursuant to Section 8(b) or the removal
of the Administrator pursuant to Section 8(c) or (d), the Administrator
shall cooperate with the Issuer and take all reasonable steps requested to
assist the Issuer in making an orderly transfer of the duties of the
Administrator.
10. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
MMCA Auto Owner Trust 2001-3
c/o Wilmington Trust Company
Attention: Corporate Trust Administration Department
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
Attention: Executive Vice President and Treasurer
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
Attention: Corporate Trust Administration
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. AMENDMENTS.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Issuer, the Administrator and
the Indenture Trustee, with the written consent of the Owner Trustee and the
consent of the Certificateholder (which consent shall not be unreasonably
withheld) but without the consent of the Noteholders, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement in order to: (i) cure any ambiguity, to revise,
correct or supplement any provisions herein, (ii) enable the transfer to the
Issuer of all or any portion of the Receivables to be derecognized under
GAAP, (iii) enable the transfer to the Issuer of all or any portion of the
Receivables to be derecognized by MMCA under GAAP, (iv) enable the Issuer to
avoid becoming a member of the Servicer's consolidated group under GAAP or
(v) enable the Transferor or any Affiliate of the Transferor or any of their
Affiliates to otherwise comply with or obtain more favorable treatment under
any law or regulation or any accounting rule or principle; provided that
such amendment will not, as set forth in an Opinion of Counsel satisfactory
to the Indenture Trustee and the Owner Trustee, materially and adversely
affect the interest of any Noteholder or Certificateholder; provided,
further, that no such amendment shall be inconsistent with the derecognition
of the Receivables by MMCA under GAAP or cause the Issuer to become a member
of MMCA's consolidated group under GAAP. This Agreement may also be amended
by the Issuer, the Administrator and the Indenture Trustee with the written
consent of the Owner Trustee and the holders of Notes evidencing at least a
majority of the Outstanding Amount of the Notes, voting as a group, and the
holders of Certificates evidencing at least a majority of the Certificate
Balance for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment may increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to
be made for the benefit of the Noteholders or the Certificateholders or
reduce the aforesaid percentages of the holders of Notes and Certificates
which are required to consent to any such amendment, without the consent of
the holders of all the outstanding Notes and Certificates. Notwithstanding
the foregoing, the Administrator may not amend this Agreement without the
consent of the Seller, which permission shall not be unreasonably withheld.
(b) Upon any proposed amendment or supplement to this Agreement
pursuant to this Section 11, if such proposed amendment or supplement would
adversely affect any of the Swap Counterparties' rights or obligations under
the related Interest Rate Swap Agreement or modify the obligations of, or
impair the ability of the Issuer to fully perform any of its obligations
under, the related Interest Rate Swap Agreement, then the Administrator
shall obtain the consent of such Swap Counterparty prior to the adoption of
such amendment or supplement, provided each such Swap Counterparty's consent
shall not be unreasonably withheld, and provided, further, a Swap
Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten Business Days of receipt
of a written request for such consent and in accordance with the terms of
the Interest Rate Swap Agreement.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. Any assignment without
such consent and satisfaction shall be null and void. An assignment with
such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer or the Owner Trustee to
a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that
such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
14. HEADINGS. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or affect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which
together shall constitute but one and the same agreement.
16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
17. NOT APPLICABLE TO MITSUBISHI MOTORS CREDIT OF AMERICA, INC. IN
OTHER CAPACITIES. Nothing in this Agreement shall affect any obligation
Mitsubishi Motors Credit of America, Inc. may have in any capacity other
than as Administrator under this Agreement.
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE
TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by Wilmington Trust Company not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Wilmington Trust Company in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Bank of Tokyo-Mitsubishi Trust
Company not in its individual capacity but solely as Indenture Trustee and
in no event shall Bank of Tokyo-Mitsubishi Trust Company have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall
be had solely to the assets of the Issuer.
19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party
hereto.
20. SUCCESSOR SERVICER AND ADMINISTRATOR. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.2
of the Sale and Servicing Agreement, to enforce the provisions of Section
8.2 with respect to the appointment of a successor Servicer. Such successor
Servicer shall, upon compliance with the last sentence of Section 8.2 of the
Sale and Servicing Agreement, become the successor Administrator hereunder;
provided, however, that if the Indenture Trustee shall become such successor
Administrator, the Indenture Trustee shall not be required to perform any
obligations or duties or conduct any activities as successor Administrator
that would be prohibited by law and not within the banking and trust powers
of the Indenture Trustee. In such event, the Indenture Trustee may appoint a
sub-administrator to perform such obligations and duties.
21. NO PETITION; SUBORDINATION; CLAIMS AGAINST SELLER.
(a) Notwithstanding any prior termination of this Agreement, the
Seller, the Administrator, the Owner Trustee and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination
of this Agreement with respect to the Issuer, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, (x)
the Issuer, the Administrator, the Owner Trustee and the Indenture Trustee
shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller; (y) any claim that the Issuer, the
Administrator, the Owner Trustee and the Indenture Trustee may have at any
time against the Subtrust Assets of any Subtrust unrelated to the Notes, the
Certificates or the Receivables, and any claim that they may have at any
time against the Seller that they may seek to enforce against the Subtrust
Assets of any Subtrust unrelated to the Notes, the Certificates or the
Receivables, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Seller becomes a debtor or
debtor in possession in a case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of
any Securities related to such unrelated Subtrust and the holders of any
other notes, bonds, contracts or other obligations that are related to such
unrelated Subtrust and (z) the Issuer, the Administrator, the Owner Trustee
and the Indenture Trustee hereby irrevocably make the election afforded by
Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i) to secured creditors to
receive the treatment afforded by Title 00 Xxxxxx Xxxxxx Code Section
1111(b)(2) with respect to any secured claim that they may have at any time
against the Depositor. The obligations of the Seller under this Agreement
are limited to the related Subtrust and the related Subtrust Assets.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
MMCA AUTO OWNER TRUST 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ X. Xxxxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx
Title: Trust Officer
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Administrator
By: /s/ C.A. Xxxxxxx
----------------------------------------
Name: C.A. Xxxxxxx
Title: Executive Vice President
and General Manager
EXHIBIT A
---------
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for MMCA AUTO OWNER TRUST 2001-3 (the
"Issuer"), does hereby make, constitute and appoint Mitsubishi Motors Credit
of America, Inc., in its capacity as administrator under the Administration
Agreement dated as of October 1, 2001 (the "Administration Agreement"),
among the Issuer, Mitsubishi Motors Credit of America, Inc. and Bank of
Tokyo-Mitsubishi Trust Company, as Indenture Trustee, as the same may be
amended from time to time, and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Issuer
all such documents, reports, filings, instruments, certificates and opinions
as it should be the duty of the Owner Trustee or the Issuer to prepare, file
or deliver pursuant to the Related Agreements, or pursuant to Section 5.5 of
the Trust Agreement, including, without limitation, to appear for and
represent the Owner Trustee and the Issuer in connection with the
preparation, filing and audit of Federal, state and local tax returns
pertaining to the Issuer, and with full power to perform any and all acts
associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein
shall have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this 12th day of October, 2001.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:____________________________
Name:
Title:
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally
appeared ____________________, known to me to be the person whose name is
subscribed to the foregoing instruments, and acknowledged to me that he/she
signed the same for the purposes and considerations therein expressed.
Sworn to before me this 12th
day of October, 2001.
__________________________________
Notary Public - State of Delaware
