Exhibit 4.4
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of August 1, 2002 (as the same
may be amended, supplemented or otherwise modified from time to time and in
effect, this "Agreement"), is by and among MMCA AUTO OWNER TRUST 2002-3, 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 1.7475% Class A-1 Asset Backed Notes,
2.15% Class A-2 Asset Backed Notes, 2.97% Class A-3 Asset Backed Notes, 3.57%
Class A-4 Asset Backed Notes, 3.86% Class B Asset Backed Notes and 4.60% Class C
Asset Backed Notes (collectively, the "Notes") pursuant to the Indenture, dated
as of August 1, 2002 (as amended, supplemented or otherwise modified and in
effect from time to time, the "Indenture"), between the Issuer and the Indenture
Trustee (terms not defined in this Agreement shall have the meaning set forth
in, or incorporated by reference into, the Indenture or, if not defined therein,
in the amended and restated trust agreement, dated as of July 29, 2002, between
the Administrator, as beneficiary, and Chase Manhattan Bank USA, National
Association, 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 August 1, 2002
(as amended, supplemented or otherwise modified and in effect from time to time,
the "Sale and Servicing Agreement"), among the Issuer, Mitsubishi Motors Credit
of America, Inc., as servicer, and MMCA Auto Receivables Trust II, as seller
(the "Seller"), (ii) a Letter of Representations, dated as of the Closing Date
(as amended, supplemented or otherwise modified and in effect from time to time,
the "Note Depository Agreement"), among the Issuer, the Administrator, the
Indenture Trustee and The Depository Trust Company ("DTC") relating to the Notes
and (iii) the Indenture (collectively, the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the beneficial interests in the Issuer (the registered holders of such
interests being referred to herein as the "Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Related Agreements.
(i) The Administrator agrees to perform all its duties as
Administrator under the Note Depository Agreement. In addition, the
Administrator shall consult with the Owner Trustee regarding the
duties of the Issuer or the Owner Trustee under the Related
Agreements. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the
Related Agreements. The Administrator shall prepare for execution by
the Issuer or the Owner Trustee, or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of
the Issuer or the Owner Trustee to prepare, file or deliver pursuant
to the Related Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of
the Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture (references
are to sections of the Indenture):
(A) causing the Note Register to be kept and notifying the Indenture
Trustee of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section
2.5);
(B) notifying the Noteholders of the final principal payment on their
Notes (Section 2.8(e));
(C) preparing or obtaining the documents and instruments required for
authentication of the Notes and delivering the same to the
Indenture Trustee (Section 2.2);
(D) preparing, obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of
collateral (Section 2.10);
(E) maintaining an office in the Borough of Manhattan, City of New
York, for registration of transfer or exchange of the Notes
(Section 3.2);
(F) causing newly appointed Paying Agents, if any, to deliver to the
Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.3);
(G) directing the Indenture Trustee to deposit monies with Paying
Agents, if any, other than the Indenture Trustee (Section 3.3);
(H) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of
the Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Trust Estate (Section
3.4);
(I) preparing all supplements and amendments to the Indenture and all
financing statements, continuation statements, instruments of
further assurance and other instruments and taking such other
action as is necessary or advisable to protect the Trust Estate
(Section 3.5);
(J) delivering the Opinion of Counsel on the Closing Date and
annually delivering Opinions of Counsel as to the Trust Estate,
and annually delivering the Officer's Certificate and certain
other statements as to compliance with the Indenture (Sections
3.6 and 3.9);
(K) identifying to the Indenture Trustee in an Officer's Certificate
a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.7(b));
(L) notifying the Indenture Trustee and the Rating Agencies of an
Event of Servicing Termination under the Sale and Servicing
Agreement and, if such Event of Servicing Termination arises from
the failure of the Servicer to perform any of its duties under
the Sale and Servicing Agreement with respect to the Receivables,
taking all reasonable steps available to remedy such failure
(Section 3.7(d));
(M) causing the Servicer to comply with Sections 3.7, 3.9, 3.10,
3.11, 3.12, 3.13, 3.14, and 4.9 and Article VII of the Sale and
Servicing Agreement (Section 3.13);
(N) preparing and obtaining documents and instruments required for
the conveyance or transfer of any of the Issuer's properties or
assets (Section 3.10(b));
(O) delivering written notice to the Indenture Trustee and the Rating
Agencies of each Event of Default under the Indenture and each
default by the Issuer, the Servicer or the Seller under the Sale
and Servicing Agreement, by the Seller or Mitsubishi Motors
Credit of America, Inc. under the Purchase Agreement (Section
3.18);
(P) monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture and preparing an Officer's Certificate
and obtaining the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.1);
(Q) delivering to the Noteholders and the Note Owners any Officer's
Certificate received from the Issuer regarding the default in the
observance or performance of any material covenant or agreement
of the Issuer made in the Indenture or the breach of any
representation or warranty of the Issuer made in the Indenture or
in any certificate or other writing delivered pursuant to the
Indenture (Sections 5.1 and 7.4(b));
(R) complying with any written direction of the Indenture Trustee
with respect to the sale of the Trust Estate at one or more
public or private sales called and conducted in any manner
permitted by law if an Event of Default shall have occurred and
be continuing (Section 5.4);
(S) preparing and delivering notice to the Noteholders of the removal
of the Indenture Trustee and appointing a successor Indenture
Trustee (Section 6.8);
(T) preparing any written instruments required to confirm more fully
the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation
or removal of any co-trustee or separate trustee (Section 6.10);
(U) furnishing the Indenture Trustee with the names and addresses of
the Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.1);
(V) preparing and, after execution by the Issuer, filing with the
Securities and Exchange Commission (the "Commission"), any
applicable state agencies and the Indenture Trustee, documents
required to be filed on a periodic basis with, and summaries
thereof as may be required by rules and regulations prescribed
by, the Commission and any applicable state agencies and
transmitting such summaries, as necessary, to the Noteholders
(Section 7.3);
(W) delivering to the Noteholders of Officer's Certificates and
reports, if any, delivered to the Indenture Trustee pursuant to
Sections 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) Additional Duties.
(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 September 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.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not
take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee
of the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related Agreements;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture
or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not, (x) make
any payments to the Noteholders under the Related Agreements or (y)
take any other action that the Issuer directs the Administrator not to
take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee and the Indenture Trustee at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $500 per month
which shall be solely an obligation of the Seller.
4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days' prior
written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice; provided, however, that in the event the
Servicer is removed as the Servicer pursuant to Section 8.1 of the Sale and
Servicing Agreement upon the occurrence of a Event of Servicing
Termination, the Servicer shall be simultaneously removed as Administrator
hereunder.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within 10 days (or, if such default cannot
be cured in such time, shall not give within 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 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 8 shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 8 shall be effective until a successor Administrator shall have
been appointed by the Issuer and such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
Successor Servicer shall automatically become the Administrator under this
Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), the
resignation of the Administrator pursuant to Section 8(b) or the removal of the
Administrator pursuant to Section 8(c) or (d), the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to this
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 8(a) deliver to the Issuer
all property and documents of or relating to the Collateral then in the custody
of the Administrator. In the event of the resignation of the Administrator
pursuant to Section 8(b) or the removal of the Administrator pursuant to Section
8(c) or (d), the Administrator shall cooperate with the Issuer and take all
reasonable steps requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
MMCA Auto Owner Trust 2002-3
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Executive Vice President and Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) If to the Indenture Trustee, to:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. 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.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. Any assignment without such consent and
satisfaction shall be null and void. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
14. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or affect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
17. Not Applicable to Mitsubishi Motors Credit of America, Inc. in
Other Capacities. Nothing in this Agreement shall affect any obligation
Mitsubishi Motors Credit of America, Inc. may have in any capacity other than as
Administrator under this Agreement.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Wilmington Trust Company in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bank of Tokyo-Mitsubishi Trust Company
not in its individual capacity but solely as Indenture Trustee and in no
event shall Bank of Tokyo-Mitsubishi Trust Company have any liability for
the representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 8.2 of the
Sale and Servicing Agreement, to enforce the provisions of Section 8.2 with
respect to the appointment of a successor Servicer. Such successor Servicer
shall, upon compliance with the last sentence of Section 8.2 of the Sale and
Servicing Agreement, become the successor Administrator hereunder; provided,
however, that if the Indenture Trustee shall become such successor
Administrator, the Indenture Trustee shall not be required to perform any
obligations or duties or conduct any activities as successor Administrator that
would be prohibited by law and not within the banking and trust powers of the
Indenture Trustee. In such event, the Indenture Trustee may appoint a
sub-administrator to perform such obligations and duties.
21. No Petition; Subordination; Claims Against Seller.
(a) Notwithstanding any prior termination of this Agreement, the
Seller, the Administrator, the Owner Trustee and the Indenture Trustee
shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, (x) the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee
shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller; (y) any claim that the Issuer,
the Administrator, the Owner Trustee and the Indenture Trustee may have at
any time against the Subtrust Assets of any Subtrust unrelated to the
Notes, the Certificates or the Receivables, and any claim that they may
have at any time against the Seller that they may seek to enforce against
the Subtrust Assets of any Subtrust unrelated to the Notes, the
Certificates or the Receivables, shall be subordinate to the payment in
full, including post-petition interest, in the event that the Seller
becomes a debtor or debtor in possession in a case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims of
the holders of any Securities related to such unrelated Subtrust and the
holders of any other notes, bonds, contracts or other obligations that are
related to such unrelated Subtrust and (z) the Issuer, the Administrator,
the Owner Trustee and the Indenture Trustee hereby irrevocably make the
election afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(1)(A)(i)
to secured creditors to receive the treatment afforded by Title 00 Xxxxxx
Xxxxxx Code Section 1111(b)(2) with respect to any secured claim that they
may have at any time against the Depositor. The obligations of the Seller
under this Agreement are limited to the related Subtrust and the related
Subtrust Assets.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
MMCA AUTO OWNER TRUST 2002-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ X. Xxxxxxxxx
-------------------------------
Name: X. Xxxxxxxxx
Title: Trust Officer
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.,
as Administrator
By: /s/ C. A. Xxxxxxx
-------------------------------
Name: C. A. Xxxxxxx
Title: Executive Vice President
and General 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 _____ (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
________, _____ (the "Administration Agreement"), among the Issuer, Mitsubishi
Motors Credit of America, Inc. and Bank of Tokyo-Mitsubishi Trust Company, as
Indenture Trustee, as the same may be amended from time to time, and its agents
and attorneys, as Attorneys-in-Fact to execute on behalf of the Owner Trustee or
the Issuer all such documents, reports, filings, instruments, certificates and
opinions as it should be the duty of the Owner Trustee or the Issuer to prepare,
file or deliver pursuant to the Related Agreements, or pursuant to Section 5.5
of the Trust Agreement, including, without limitation, to appear for and
represent the Owner Trustee and the Issuer in connection with the preparation,
filing and audit of Federal, state and local tax returns pertaining to the
Issuer, and with full power to perform any and all acts associated with such
returns and audits that the Owner Trustee could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restrictions on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ___ day of __________, _____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:____________________________
Name:
Title:
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally appeared
____________________, known to me to be the person whose name is subscribed to
the foregoing instruments, and acknowledged to me that he/she signed the same
for the purposes and considerations therein expressed.
Sworn to before me this ____
day of __________, _____.
__________________________________
Notary Public - State of Delaware
