This ADMINISTRATION AGREEMENT, dated as of November [ ], 2000
(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
2000-2, a Delaware business trust (the "Issuer"), MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., a Delaware corporation, as administrator (the "Administrator"),
and BANK OF TOKYO - MITSUBISHI TRUST COMPANY, a New York banking corporation,
not in its individual capacity but solely as Indenture Trustee (the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing [ ]% Class A-1 Asset Backed
Notes, [ ]% Class A-2 Asset Backed Notes, [ ]% Class A-3 Asset Backed Notes,
[ ]% Class A-4 Asset Backed Notes and [ ]% Class B Asset Backed Notes
(collectively, the "Notes") pursuant to the Indenture, dated as of November [ ],
2000 (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 Delaware
banking corporation, 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
November [ ], 2000 (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 November [ ], 2000 (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 (the Sale and Servicing
Agreement, the Note Depository Agreement 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. (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);
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(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 4.11 and Article VII of the Sale and
Servicing Agreement (Section 3.14);
(N) preparing and obtaining documents and instruments required
for the release of the Issuer from its 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 and by the Seller or Mitsubishi Motors Credit of
America, Inc. under the Purchase Agreement (Section 3.19);
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(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);
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(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);
(A2) notifying the Noteholders and the Rating Agencies of
redemption of the Notes or causing the Indenture Trustee to provide
such notification (Section 10.1);
(B2) 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));
(C2) 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));
(D2) 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);
(E2) preparing and delivering to the Noteholders and the
Indenture Trustee any agreements with respect to alternate payment and
notice provisions (Section 11.6);
(F2) recording the Indenture, if applicable (Section 11.15);
and
(G2) 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
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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 main-
6
tained 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 penultimate
[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,
2001], 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;
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(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
8
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.
(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.
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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 (i) a successor Administrator shall have been
appointed by the Issuer and (ii) 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 2000-2
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10
(b) if to the Administrator, to:
Mitsubishi Motors Credit of America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Vice President and Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Indenture Trustee, to:
Bank of Tokyo - Mitsubishi Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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 but
without the consent of the Noteholders and the Certificateholders, 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 Certificateholders; 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. 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 (i) 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 (ii) 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.
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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
12
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
13
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 ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 1111(b)(1)(A)(i) to secured creditors to receive the
treatment afforded by Title ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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.
14
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 2000-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: ________________________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
not in its individual capacity but solely as Indenture
Trustee
By: ________________________________________________
Name:
Title:
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.,
as Administrator
By: ________________________________________________
Name:
Title:
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 2000-2 (the "Issuer"), does
hereby make, constitute and appoint Mitsubishi Motors Credit of America, Inc.,
in its capacity as administrator under the Administration Agreement dated as of
November [ ], 2000 (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.
A-1
EXECUTED this ___ day of November.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
_____________________________________________
Name:
Title:
A-2
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 November.
__________________________________________
Notary Public - State of Delaware
A-3