Exhibit 10.1
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PURCHASE AGREEMENT
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
as Seller
and
MMCA AUTO RECEIVABLES TRUST
as Purchaser
Dated as of March 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND USAGE..........................................1
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES..............................1
Section 2.1 Purchase and Sale of Receivables...................1
Section 2.2 Payment of the Purchase Price......................4
Section 2.3 The Closing........................................5
ARTICLE III - REPRESENTATIONS AND WARRANTIES...............................5
Section 3.1 Representations and Warranties of the Purchaser....5
Section 3.2 Representations and Warranties of the Seller.......6
ARTICLE IV - CONDITIONS...................................................12
Section 4.1 Conditions to Obligations of the Purchaser........12
Section 4.2 Conditions to Obligation of the Seller............15
ARTICLE V - COVENANTS OF THE SELLER.......................................15
Section 5.1 Protection of Right, Title and Interest...........15
Section 5.2 Other Liens or Interests..........................16
Section 5.3 Costs and Expenses................................16
Section 5.4 Indemnification...................................16
Section 5.5 Sale..............................................17
ARTICLE VI - MISCELLANEOUS PROVISIONS.....................................17
Section 6.1 Obligations of Seller.............................17
Section 6.2 Repurchase Events.................................18
Section 6.3 Purchaser's Assignment of Repurchased Receivables.18
Section 6.4 Trust.............................................18
Section 6.5 Amendments........................................19
Section 6.6 Accountants' Letters..............................19
Section 6.7 Waivers...........................................19
Section 6.8 Notices...........................................19
Section 6.9 Costs and Expenses................................20
Section 6.10 Representations of the Seller and the Purchaser.20
Section 6.11 Confidential Information........................20
Section 6.12 Headings and Cross-References...................20
Section 6.13 Governing Law...................................20
Section 6.14 Agreements of Purchaser.........................20
Section 6.15 Counterparts....................................21
Exhibits
Form of First-Tier Initial Assignment .............................Exhibit A-1
Form of First-Tier Subsequent Assignment ..........................Exhibit A-2
Schedule of Initial Receivables .....................................Exhibit B
Schedules
Locations of Receivables Files .....................................Schedule A
PURCHASE AGREEMENT, dated as of March 1, 2002 (as
amended, supplemented or otherwise modified and in effect from time to
time, this "Agreement"), by and between MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., a Delaware corporation (the "Seller"), having its principal
executive office at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000,
and MMCA AUTO RECEIVABLES TRUST, a Delaware business trust (the
"Purchaser"), having its principal executive office at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000-0000.
WHEREAS, in the regular course of its business, the
Seller purchases certain motor vehicle retail installment sale contracts
secured by new and used automobiles and sports-utility vehicles from motor
vehicle dealers; and
WHEREAS, the Seller and the Purchaser wish to set forth
the terms pursuant to which the Initial Receivables (such capitalized term
and the other capitalized terms used herein have the meanings assigned
thereto pursuant to Article I hereof) and other property related thereto
will be sold by the Seller to the Purchaser on the Closing Date, the
Subsequent Receivables and other property related thereto will be sold by
the Seller to the Purchaser from time to time during the Pre-Funding
Period, and the Reinvestment Receivables and other property related thereto
will be sold by the Seller to the Purchaser from time to time during the
Reinvestment Period, which Receivables and other property related thereto
will be sold by the Purchaser, pursuant to the Sale and Servicing
Agreement, to the Trust to be created pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other
good and valuable consideration, and the mutual terms and covenants
contained herein, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I - DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context
may otherwise require, capitalized terms used but not otherwise defined
herein are defined in Appendix A to the Indenture (the "Indenture"), dated
as of March 1, 2002, between MMCA Auto Owner Trust 2002-1, as issuer, and
Bank of Tokyo-Mitsubishi Trust Company, as indenture trustee, which also
contains rules as to usage that shall be applicable herein. The term
"Seller" herein shall mean Mitsubishi Motors Credit of America, Inc, its
successors and assigns.
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES
Section 2.1 Purchase and Sale of Receivables.
On the Closing Date and on each Subsequent Transfer Date,
subject to the terms and conditions of this Agreement, the Seller agrees to
sell to the Purchaser, and the Purchaser agrees to purchase from the
Seller, the Receivables set forth in the related Schedule of Receivables
and the other property relating thereto (as described below).
(a) Sale of Initial Receivables. Subject to satisfaction
of the conditions set forth in Section 4.1(a), on the Closing Date, and
simultaneously with the transactions to be consummated pursuant to the
Indenture, the Sale and Servicing Agreement and the Trust Agreement, the
Seller shall, pursuant to the First-Tier Initial Assignment, sell,
transfer, assign and otherwise convey to the Purchaser, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the
following, collectively:
(i) the Initial Receivables;
(ii) with respect to Initial Receivables that are
Actuarial Receivables, monies due thereunder after the Initial Cutoff Date
(including Payaheads) and, with respect to Initial Receivables that are
Simple Interest Receivables, monies received thereunder after the Initial
Cutoff Date;
(iii) the security interests in Financed Vehicles
granted by Obligors pursuant to the Initial Receivables and any other
interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to
the Initial Receivables from claims on any physical damage, theft, credit
life or disability insurance policies covering the related Financed
Vehicles or related Obligors;
(v) all rights to receive proceeds with respect to
the Initial Receivables from recourse to Dealers thereon pursuant to the
Dealer Agreements;
(vi) all of the Seller's rights to the Receivable
Files that relate to the Initial Receivables;
(vii) all payments and proceeds with respect to the
Initial Receivables held by the Seller;
(viii) all property (including the right to receive
Liquidation Proceeds and Recoveries and Financed Vehicles and the proceeds
thereof acquired by the Seller pursuant to the terms of an Initial
Receivable that is a Final Payment Receivable), guarantees and other
collateral securing an Initial Receivable (other than an Initial Receivable
purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts
relating to insurance policies and other items financed under the Initial
Receivables in effect as of the Initial Cutoff Date; and
(x) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and
all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
It is the intention of the Seller and the Purchaser that
the transfer and assignment of the Initial Receivables and the other
property described in clauses (i) through (x) of this Section 2.1(a) shall
constitute a sale of the Initial Receivables and such other property from
the Seller to the Purchaser, conveying good title thereto free and clear of
any liens, and the Initial Receivables and such other property shall not be
part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy or similar law.
However, in the event that the foregoing transfer and assignment is deemed
to be a pledge, the Seller hereby grants to the Purchaser a first priority
security interest in all of the Seller's right to and interest in the
Initial Receivables and other property described in the preceding paragraph
to secure a loan deemed to have been made by the Purchaser to the Seller in
an amount equal to the sum of the initial principal amount of the Notes
plus accrued interest thereon and the Initial Certificate Balance.
(b) Sale of Subsequent Receivables. Subject to
satisfaction of the conditions set forth in Section 4.1(b), the Seller
shall, pursuant to each First-Tier Subsequent Assignment, sell, transfer,
assign and otherwise convey to the Purchaser, without recourse (subject to
the obligations herein), all right, title and interest of the Seller,
whether now owned or hereafter acquired, in, to and under the following,
collectively:
(i) the Subsequent Receivables listed on Schedule A
to the related First-Tier Subsequent Assignment;
(ii) with respect to the Subsequent Receivables that
are Actuarial Receivables, monies due thereunder on or after the related
Subsequent Cutoff Date (including Payaheads) and, with respect to
Subsequent Receivables that are Simple Interest Receivables, monies
received thereunder on or after the related Subsequent Cutoff Date;
(iii) the security interests in Financed Vehicles
granted by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to
such Subsequent Receivables from claims on any physical damage, theft,
credit life or disability insurance policies covering the related Financed
Vehicles or related Obligors;
(v) all rights to receive proceeds with respect to
such Subsequent Receivables from recourse to Dealers thereon pursuant to
the related Dealer Agreements;
(vi) all of the Seller's rights to the Receivable
Files that relate to such Subsequent Receivables;
(vii) all payments and proceeds with respect to such
Subsequent Receivables held by the Seller;
(viii) all property (including the right to receive
Liquidation Proceeds and Recoveries and Financed Vehicles and the proceeds
thereof acquired by the Seller pursuant to the terms of a Subsequent
Receivable that is a Final Payment Receivable), guarantees and other
collateral securing a Subsequent Receivable (other than a Subsequent
Receivable purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts
relating to insurance policies and other items financed under such
Subsequent Receivables in effect as of the related Subsequent Cutoff Date;
and
(x) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and
all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
It is the intention of the Seller and the Purchaser that
each transfer and assignment of Subsequent Receivables and the other
property described in clauses (i) through (x) of this Section 2.1(b) shall
constitute a sale of such Subsequent Receivables and other property from
the Seller to the Purchaser, conveying good title thereto free and clear of
any liens, and such Subsequent Receivables and other property shall not be
part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy or similar law.
However, in the event that the foregoing transfer and assignment is deemed
to be a pledge, the Seller hereby grants to the Purchaser a first priority
security interest in all of the Seller's right to and interest in such
Subsequent Receivables and other property described in the preceding
paragraph to secure a loan deemed to have been made by the Purchaser to the
Seller in an amount equal to the sum of the initial principal amount of the
Notes plus accrued interest thereon and the Initial Certificate Balance.
Section 2.2 Payment of the Purchase Price.
(a) Initial Receivables Purchase Price. In consideration
for the Initial Receivables, the other property described in Section 2.1(a)
and delivery of the Yield Supplement Agreement, the Purchaser shall, on or
prior to the Closing Date, pay to or upon the order of the Seller the
Initial Receivables Purchase Price. An amount equal to $1,154,911,693.78 of
the Initial Receivables Purchase Price shall be paid to the Seller in cash.
The remainder of the Initial Receivables Purchase Price shall be paid by
crediting the Seller with a contribution to the capital of the Purchaser.
The portion of the Initial Receivables Purchase Price to be paid in cash
shall be by federal wire transfer (same day) funds.
(b) Subsequent Receivables Purchase Price. In
consideration for the Subsequent Receivables and the other property related
thereto described in Section 2.1(b) to be sold, transferred, assigned and
otherwise conveyed to the Purchaser on the related Subsequent Transfer
Date, the Purchaser shall, on or prior to such Subsequent Transfer Date,
pay to or upon the order of the Seller an amount (the related "Subsequent
Receivables Purchase Price") equal to the aggregate Principal Balance of
the Subsequent Receivables as of the related Subsequent Cutoff Date, plus
any premium or minus any discount agreed upon by the Seller and the
Purchaser. Any Subsequent Receivables Purchase Price shall be payable as
follows: (i) cash in the amount released to the Purchaser from the
Pre-Funding Account pursuant to Section 4.11(a) of the Sale and Servicing
Agreement shall be paid to or upon the order of the Seller on the related
Subsequent Transfer Date by federal wire transfer (same day funds) and the
balance paid in cash as and when amounts are released to, or otherwise
realized by, the Purchaser from the Reserve Account and the Negative Carry
Account in accordance with the Sale and Servicing Agreement; or (ii) as
otherwise agreed by the Seller and the Purchaser.
Section 2.3 The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New
York 10036-6522 on the Closing Date, simultaneously with the closings
under: (a) the Sale and Servicing Agreement, pursuant to which the
Purchaser will assign all of its right, title and interest in, to and under
the Initial Receivables, the Yield Supplement Agreement and other property
described in Section 2.1(a) to the Trust in exchange for the Notes and the
Certificates; (b) the Indenture, pursuant to which the Trust will issue the
Notes and pledge all of its right, title and interest in, to and under the
Trust Property to secure the Notes; (c) the Trust Agreement, pursuant to
which the Trust will issue the Certificates; and (d) the Underwriting
Agreement, pursuant to which the Purchaser will sell the Notes to the
Persons named therein.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants to the Seller as of
the date hereof, the Closing Date and each Subsequent Transfer Date:
(a) Organization, etc. The Purchaser has been duly
established and is validly existing as a business trust in good standing
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority, and legal right to acquire
and own the Receivables, and has the power and authority to execute and
deliver this Agreement and to carry out its terms.
(b) Due Qualification. The Purchaser is duly qualified to
do business as a foreign business trust in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) Due Authorization and Binding Obligation. This
Agreement has been duly authorized, executed and delivered by the
Purchaser, and is the valid, binding and enforceable obligation of the
Purchaser except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(d) No Violation. The execution, delivery and performance
by the Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default
under, its Certificate of Trust or its amended and restated trust
agreement, or conflict with, or breach any of the terms or provisions of,
or constitute (with or without notice or lapse of time or both) a default
under, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Purchaser is a party or by which the Purchaser is
bound or to which any of its properties are subject, or result in the
creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument (other than this Agreement), or violate any law, order,
rule, or regulation, applicable to the Purchaser or its properties, of any
federal or state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over the Purchaser
or any of its properties.
(e) No Proceedings. No proceedings or investigations are
pending to which the Purchaser is a party or of which any property of the
Purchaser is the subject, and, to the best knowledge of the Purchaser, no
such proceedings or investigations are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings or investigations which will not have a material adverse effect
upon the general affairs, financial position, net worth or results of
operations (on an annual basis) of the Purchaser and which do not (i)
assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seek any determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement.
Section 3.2 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the
Purchaser as of the date hereof, the Closing Date and each Subsequent
Transfer Date:
(i) Organization, etc. The Seller has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted, and is duly qualified to transact business and is in
good standing in each jurisdiction in the United States of America
in which the conduct of its business or the ownership or lease of
its property requires such qualification.
(ii) Power and Authority; Binding Obligation. The
Seller has full power and authority to sell and assign the
property sold and assigned to the Purchaser hereunder on the
Closing Date and the property to be sold and assigned to the
Purchaser hereunder on each Subsequent Transfer Date and has duly
authorized such sales and assignments to the Purchaser by all
necessary corporate action. This Agreement and the First-Tier
Initial Assignment has been, and each First-Tier Subsequent
Assignment will be, on or before the related Subsequent Transfer
Date, duly authorized, executed and delivered by the Seller, and
in each case shall constitute the legal, valid, binding and
enforceable obligation of the Seller except as the same may be
limited by insolvency, bankruptcy, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or
by general equity principles.
(iii) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the consummation
of the transactions contemplated hereby and the fulfillment of the
terms hereof will not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the certificate
of incorporation or bylaws of the Seller, or conflict with, or
breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time or both) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument
to which the Seller is a party or by which the Seller is bound or
any of its properties are subject, or result in the creation or
imposition of any lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument (other than this Agreement), or violate any law,
order, rule or regulation, applicable to the Seller or its
properties, of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
(iv) No Proceedings. No proceedings or investigations
are pending to which the Seller is a party or of which any
property of the Seller is the subject, and, to the best knowledge
of the Seller, no such proceedings or investigations are
threatened or contemplated by governmental authorities or
threatened by others, other than such proceedings or
investigations which will not have a material adverse effect upon
the general affairs, financial position, net worth or results of
operations (on an annual basis) of the Seller and do not (i)
assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this
Agreement or (iii) seek any determinations or ruling that might
materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Agreement.
(v) Florida Securities and Investor Protection Act.
In connection with the offering of the Notes in the State of
Florida, the Seller hereby certifies that it has complied with all
provisions of Section 517.075 of the Florida Securities and
Investor Protection Act.
(b) The Seller makes the following representations
and warranties as to the Receivables on which the Purchaser relies in
accepting the Receivables. Such representations and warranties speak as of
the Closing Date, in the case of the Initial Receivables, and as of the
applicable Subsequent Transfer Date, in the case of the Subsequent
Receivables, except to the extent otherwise provided in the following
representations and warranties, but shall survive the sale, transfer, and
assignment of the Receivables to the Purchaser hereunder and the subsequent
assignment and transfer of the Receivables pursuant to the Sale and
Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable
(a) shall have been originated (x) in the United States of America
by a Dealer for the consumer or commercial sale of a Financed
Vehicle in the ordinary course of such Dealer's business or (y) by
the Seller in connection with the refinancing by the Seller of a
motor vehicle retail installment sale contract of the type
described in subclause (x) above, shall have been fully and
properly executed by the parties thereto, shall have been
purchased by the Seller from such Dealer under an existing Dealer
Agreement with the Seller (unless such Receivable was originated
by the Seller in connection with a refinancing), and shall have
been validly assigned by such Dealer to the Seller in accordance
with its terms (unless such Receivable was originated by the
Seller in connection with a refinancing), (b) shall have created
or shall create a valid, binding, subsisting and enforceable first
priority security interest in favor of the Seller on the related
Financed Vehicle, which security interest has been validly
assigned by the Seller to the Purchaser, (c) shall contain
customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization
against the collateral of the benefits of the security, (d) in the
case of Standard Receivables, shall provide for monthly payments
that fully amortize the Amount Financed by maturity of the
Receivable and yield interest at the APR, (e) in the case of
Balloon Payment Receivables and Final Payment Receivables, shall
provide for a series of fixed level monthly payments and a larger
payment due after such level monthly payments that fully amortize
the Amount Financed by maturity and yield interest at the APR, (f)
shall provide for, in the event that such contract is prepaid, a
prepayment that fully pays the Principal Balance and all accrued
and unpaid interest thereon, (g) is a retail installment sale
contract, (h) is secured by a new or used automobile or
sports-utility vehicle and (i) is an Actuarial Receivable or a
Simple Interest Receivable (and may also be a Balloon Payment
Receivable or a Final Payment Receivable).
(ii) Schedule of Receivables. The information set
forth in the related Schedule of Receivables shall be true and
correct in all material respects as of the opening of business on
the related Cutoff Date and no selection procedures believed to be
adverse to the Noteholders or the Certificateholders shall have
been utilized in selecting the Receivables from those receivables
which meet the criteria contained herein. The compact disk or
other listing regarding the Receivables made available to the
Purchaser and its assigns (which compact disk or other listing is
required to be delivered as specified herein) is true and correct
in all respects.
(iii) Compliance with Law. Each Receivable and the
sale of the related Financed Vehicle shall have complied, at the
time it was originated or made, and shall comply on the Closing
Date (with respect to each Initial Receivable) or the related
Subsequent Transfer Date (with respect to each Subsequent
Receivable) in all material respects with all requirements of
applicable Federal, state, and local laws, and regulations
thereunder including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Credit Billing Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act
of 1940, the Texas Consumer Credit Code, and State adaptations of
the Uniform Consumer Credit Code, and other consumer credit laws
and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall
represent the genuine, legal, valid and binding payment obligation
in writing of the Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity.
(v) No Government Obligor. None of the Receivables is
due from the United States of America or any state or from any
agency, department or instrumentality of the United States of
America or any state.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the sale, assignment, and transfer thereof,
each Receivable shall be secured by a valid, subsisting and
enforceable perfected first priority security interest in the
related Financed Vehicle in favor of the Seller as secured party
and, at such time as enforcement of such security interest is
sought, there shall exist a valid, subsisting and enforceable
first priority perfected security interest in such Financed
Vehicle for the benefit of the Seller and the Purchaser,
respectively (subject to any statutory or other lien arising by
operation of law after the Closing Date (with respect to each
Initial Receivable) or the related Subsequent Transfer Date (with
respect to each Subsequent Receivable) which is prior to such
security interest), or all necessary and appropriate action with
respect to such Receivables shall have been taken to perfect a
first priority security interest in such Financed Vehicle for the
benefit of the Seller and the Purchaser, respectively.
(vii) Receivables in Force. No Receivable shall have
been satisfied, subordinated, or rescinded, nor shall any Financed
Vehicle have been released from the Lien granted by the related
Receivable in whole or in part, which security interest shall be
assignable by the Seller to the Purchaser.
(viii) No Waiver. No provision of a Receivable shall
have been waived in such a manner that such Receivable fails to
meet all of the representations and warranties made by the Seller
in this Section 3.2(b) with respect thereto.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened
with respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge,
no liens or claims shall have been filed for work, labor, or
materials relating to a Financed Vehicle that shall be liens prior
to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Receivable.
(xi) No Default; Repossession. Except for payment
defaults continuing for a period of not more than 30 days or
payment defaults of 10% or less of a Scheduled Payment, in each
case as of the related Cutoff Date, or the failure of the Obligor
to maintain satisfactory physical damage insurance covering the
Financed Vehicle, no default, breach, violation, or event
permitting acceleration under the terms of any Receivable shall
have occurred; no continuing condition that with notice or the
lapse of time or both would constitute a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable shall have arisen; the Seller shall not have waived any
of the foregoing; and no Financed Vehicle shall have been
repossessed as of the related Cutoff Date.
(xii) Insurance. Each Contract shall require the
related Obligor to maintain physical damage insurance (which
insurance shall not be force placed insurance) covering the
Financed Vehicle, in the amount determined by the Seller in
accordance with its customary procedures.
(xiii) Title. It is the intention of the Seller that
each transfer and assignment of the Receivables herein
contemplated constitute a sale of such Receivables from the Seller
to the Purchaser and that the beneficial interest in, and title
to, such Receivables not be part of the Seller's estate in the
event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person
other than the Purchaser. Immediately prior to each transfer and
assignment of the Receivables herein contemplated, the Seller had
good and marketable title to such Receivables free and clear of
all Liens, encumbrances, security interests, and rights of others
and, immediately upon the transfer thereof, the Purchaser shall
have good and marketable title to such Receivables, free and clear
of all Liens, encumbrances, security interests, and rights of
others; and the transfer has been perfected by all necessary
action under the Relevant UCC.
(xiv) Valid Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment of
such Receivable under this Agreement shall be unlawful, void, or
voidable. The Seller has not entered into any agreement with any
obligor that prohibits, restricts or conditions the assignment of
any portion of the Receivables.
(xv) All Filings Made. All filings (including,
without limitation, filings under the Relevant UCC) necessary in
any jurisdiction to give the Purchaser a first priority perfected
security interest in the Receivables shall be made within ten days
of the Closing Date (with respect to the Initial Receivables) or
within ten days of the related Subsequent Transfer Date (with
respect to the Subsequent Receivables).
(xvi) Chattel Paper. Each Receivable constitutes
"chattel paper" as defined in the Relevant UCC.
(xvii) One Original. There shall be only one original
executed copy of each Receivable in existence.
(xviii) Principal Balance. Each Receivable had an
original principal balance (net of unearned precomputed finance
charges) of not more than $60,000, and a remaining Principal
Balance as of the related Cutoff Date of not less than $100.
(xix) No Bankrupt Obligors. No Receivable was due
from an Obligor who, as of the related Cutoff Date, was the
subject of a proceeding under the Bankruptcy Code of the United
States or was bankrupt.
(xx) New and Used Vehicles. Approximately 93.01% of
the Initial Pool Balance, constituting approximately 88.26% of the
total number of the Initial Receivables, relate to new automobiles
and sports-utility vehicles, substantially all of which were
manufactured or distributed by Mitsubishi Motors. Approximately
6.76% of the Initial Pool Balance, constituting approximately
11.23% of the total number of Initial Receivables, relate to used
automobiles and sports-utility vehicle, substantially all of which
were manufactured or distributed by Mitsubishi Motors.
Approximately 0.18% of the Initial Pool Balance, constituting
approximately 0.43% of the total number of Initial Receivables,
relate to program automobiles and sports-utility vehicles,
substantially all of which were manufactured or distributed by
Mitsubishi Motors. Approximately 0.04% of the Initial Pool
Balance, constituting approximately 0.09% of the total number of
Initial Receivables, relate to other used automobiles and
sports-utility vehicles.
(xxi) Origination. Each Receivable shall have an
origination date during or after January 27, 1999.
(xxii) Maturity of Receivables. Each Receivable shall
have, as of the related Cutoff Date, not more than 66 remaining
Scheduled Payments due.
(xxiii) Weighted Average Number of Payments. As of
the Initial Cutoff Date, the weighted average number of payments
remaining until the maturity of the Initial Receivables shall be
not more than 66 Scheduled Payments. As of each Subsequent Cutoff
Date, the weighted average number of payments remaining until the
maturity of any related Subsequent Receivables shall be not more
than 66 Scheduled Payments.
(xxiv) Annual Percentage Rate. Each Receivable shall
have an APR of at least 0% and not more than 30%.
(xxv) Scheduled Payments. No Receivable shall have a
payment of which more than 10% of such payment is more than 30
days overdue as of the related Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable
Files shall be kept at one or more of the locations listed in
Schedule A hereto.
(xxvii) Capped Receivables and Simple Interest
Receivables. Except to the extent that there has been no material
adverse effect on Noteholders or Certificateholders, each Capped
Receivable has been treated consistently by the Seller as a Simple
Interest Receivable and payments with respect to each Simple
Interest Receivable have been allocated consistently in accordance
with the Simple Interest Method.
(xxviii) Other Data. The tabular data and the
numerical data relating to the characteristics of the Receivables
contained in the Prospectus are true and correct in all material
respects.
(xxix) Last Scheduled Payments. The aggregate
principal balance of the Last Scheduled Payments of Balloon
Payment Receivables and Final Payment Receivables that are Initial
Receivables, as a percentage of the Initial Pool Balance as of the
Initial Cutoff Date, shall be not greater than 8.74%. The
aggregate principal balance of the Last Scheduled Payments of
Balloon Payment Receivables and Final Payment Receivables that are
Subsequent Receivables sold to the Purchaser on a Subsequent
Transfer Date, as of the related Subsequent Cutoff Date, as a
percentage of the aggregate principal balance of all of such
Subsequent Receivables as of such related Subsequent Cutoff Date,
shall be not greater than 8.74%.
(xxx) Receivable Yield Supplement Amounts. An amount
equal to the sum of all projected Yield Supplement Amounts for all
future Payment Dates with respect to each Deferred Payment
Receivable and each Deferred Balloon Payment Receivable, assuming
that no prepayments are made on the Deferred Payment Receivable or
the Deferred Balloon Payment Receivable, as the case may be, has
been deposited to the Yield Supplement Account on or prior to the
Closing Date or the related Subsequent Transfer Date, as
applicable.
(xxxi) Prepaid Receivables. No Receivable shall have
been pre-paid by more than six monthly payments as of the related
Cutoff Date.
(xxxii) Limited Credit Experience. The aggregate
principal balance of the Subsequent Receivables sold to the
Purchaser on a Subsequent Transfer Date on which the Obligor has
limited credit experience, as of the related Subsequent Cutoff
Date, as a percentage of the aggregate principal balance of all of
such Subsequent Receivables as of such related Subsequent Cutoff
Date, shall be not greater than 5.48%.
(xxxiii) Deferred Payment Receivables. As of the
Initial Cutoff Date, $448,142,723.25 total Principal Balance of
Deferred Payment Receivables included in the Initial Receivables
had a first payment that, as of the date of inception of the
Receivable, was deferred for 300 days or greater. As of the
Initial Cutoff Date, $199,845,921.79 total Principal Balance of
Deferred Payment Receivables included in the Initial Receivables
had a first payment that, as of the date of inception of the
Receivable, was deferred for a period of between 200 and 299 days.
As of the Initial Cutoff Date $10,742,362.31 total Principal
Balance of Deferred Payment Receivables included in the Initial
Receivables had a first payment that, as of the date of inception
of the Receivable, was deferred for a period of between 100 and
199 days. As of the Initial Cutoff Date $4,763,113.52 total
Principal Balance of Deferred Payment Receivables included in the
Initial Receivables had a first payment that, as of the date of
inception of the Receivable, was deferred for a period of 99 days
or less. In no case will the first payment on a Deferred Payment
Receivable be due later than 480 days after the date of inception
of that Receivable.
(xxxiv) Long Deferment Period Receivables. As of the
Initial Cutoff Date, $447,193,123.43 total principal balance of
Deferred Payment Receivables included in the Initial Receivables
were Long Deferment Period Receivables.
(xxxv) Reinvested Receivables. With respect to
Reinvested Receivables transferred to the Issuer on the related
Subsequent Transfer Date, none of such Receivables are Deferred
Payment Receivables.
(xxxvi) Deferred Balloon Payment Receivables. As of
the Initial Cutoff Date, $1,429,200.91 total principal balance of
Deferred Balloon Payment Receivables were originated with a
deferral period of 90 days, and $10,742,362.30 total principal
balance of Deferred Balloon Payment Receivables were originated
with a deferral period of 180 days.
(xxxvii) Modified Receivables. The APR of any
Modified Receivable is equal to the APR of the related Deferred
Payment Receivable. The date on which the final Scheduled Payment
is due on a Modified Receivable is not different than the date set
forth in the related Contract as the date on which the final
Scheduled Payment under such Receivable is due. No Deferred
Payment Receivable became a Modified Receivable after 90 days
following the date the first Scheduled Payment on the Receivable
was due.
ARTICLE IV - CONDITIONS
Section 4.1 Conditions to Obligations of the
Purchaser. (a) Initial Receivables. The obligation of the Purchaser to
purchase the Initial Receivables is subject to the satisfaction of the
following conditions:
(i) Representations and Warranties True. The
representations and warranties of the Seller hereunder shall be
true and correct on the Cutoff Date or on the Closing Date, as
appropriate, with the same effect as if then made, and the Seller
shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(ii) Computer Files Marked. The Seller shall, at its
own expense, on or prior to the Closing Date, indicate in its
computer files that the Initial Receivables have been sold to the
Purchaser pursuant to this Agreement and the First-Tier Initial
Assignment and deliver to the Purchaser the Schedule of Initial
Receivables certified by an officer of the Seller to be true,
correct and complete.
(iii) Documents to be delivered by the Seller at the
Closing.
(1) The First-Tier Initial Assignment. At the
Closing, the Seller will execute and deliver the
First-Tier Initial Assignment in substantially the form
of Exhibit A-1 hereto.
(2) The Yield Supplement Agreement. At the
Closing, the Seller will execute and deliver the Yield
Supplement Agreement.
(3) Evidence of UCC Filing. Within ten days of
the Closing Date, the Seller shall record and file, at
its own expense, a UCC financing statement in each
jurisdiction in which required by applicable law,
authorized by the Seller, as seller or debtor, and naming
the Purchaser, as purchaser or secured party, naming the
Initial Receivables and the other property conveyed under
Section 2.1(a) as collateral, meeting the requirements of
the laws of each such jurisdiction and in such manner as
is necessary to perfect the sale, transfer, assignment
and conveyance of the Initial Receivables to the
Purchaser. The Seller shall deliver a file-stamped copy,
or other evidence satisfactory to the Purchaser of such
filing, to the Purchaser within ten days of the Closing
Date.
(4) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) Other Transactions. The transactions
contemplated by the Sale and Servicing Agreement, the Indenture,
the Trust Agreement and the Underwriting Agreement shall be
consummated on the Closing Date.
(b) Subsequent Receivables. The obligation of the Purchaser to
purchase the Subsequent Receivables to be conveyed to the Purchaser on each
Subsequent Transfer Date is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The
representations and warranties of the Seller under Section 3.2(a)
with respect to the Seller and Section 3.2(b) with respect to such
Subsequent Receivables shall be true and correct as of the date as
of which such representations and warranties are made, and the
Seller shall have performed all obligations to be performed by it
hereunder on or prior to the related Subsequent Transfer Date.
(ii) Computer Files Marked. The Seller shall, at its
own expense, on or prior to the related Subsequent Transfer Date,
indicate in its computer files that such Subsequent Receivables
have been sold to the Purchaser pursuant to this Agreement and the
related First-Tier Subsequent Assignment and deliver to the
Purchaser the related First-Tier Subsequent Assignment, including
the related Schedule of Subsequent Receivables certified by an
officer of the Seller to be true, correct and complete.
(iii) Documents to be delivered by the Seller on the
related Subsequent Transfer Date.
(1) The First-Tier Subsequent Assignment. On
the related Subsequent Transfer Date, the Seller will
execute and deliver the related First-Tier Subsequent
Assignment in substantially the form of Exhibit A-2
hereto.
(2) Evidence of UCC Filing. Within ten days of
the related Subsequent Transfer Date, the Seller shall
record and file, at its own expense, a UCC financing
statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or
debtor, and naming the Purchaser, as purchaser or secured
party, naming such Subsequent Receivables and the other
property conveyed under Section 2.1(b) as collateral,
meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of
such Subsequent Receivables to the Purchaser. The Seller
shall deliver a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the
Purchaser within ten days of the related Subsequent
Transfer Date.
(3) Officer's Certificate. The Seller shall
have delivered to the Purchaser an Officer's Certificate
confirming the satisfaction of each condition precedent
specified in this Section 4.1(b) (substantially in the
form attached as Annex A to the form of First-Tier
Subsequent Assignment attached hereto as Exhibit A-2).
(4) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) As of the related Subsequent Transfer Date: (A)
the Seller was not insolvent and will not become insolvent as a
result of the transfer of such Subsequent Receivables on the
related Subsequent Transfer Date, (B) the Seller did not intend to
incur or believe that it would incur debts that would be beyond
the Seller's ability to pay as such debts matured, (C) such
transfer was not made by the Seller with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller did
not constitute unreasonably small capital to carry out its
business as conducted.
(v) No selection procedures believed by the Seller to
be adverse to the interests of the Purchaser, the Trust, the
Noteholders or the Certificateholders shall have been utilized in
selecting the Subsequent Receivables.
(vi) The addition of the Subsequent Receivables will
not result in a material adverse tax consequence to the Purchaser,
the Trust, the Noteholders or the Certificateholders.
(vii) All the conditions to the transfer of the
Subsequent Receivables from the Purchaser to the Trust specified
in Section 2.1(d) of the Sale and Servicing Agreement shall have
been satisfied.
Section 4.2 Conditions to Obligation of the Seller. The obligation
of the Seller to sell the Initial Receivables to the Purchaser on the
Closing Date and any Subsequent Receivables to the Purchaser on the related
Subsequent Transfer Date is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser hereunder shall be true and
correct on the Closing Date or the related Subsequent Transfer Date, as
applicable, with the same effect as if then made, and the Purchaser shall
have performed all obligations to be performed by it hereunder on or prior
to the Closing Date or the related Subsequent Transfer Date, as applicable.
(b) Receivables Purchase Prices. (i) On or prior to the
Closing Date, the Purchaser shall deliver to the Seller the Initial
Receivables Purchase Price as provided in Section 2.2(a) and (ii) on or
prior to each Subsequent Transfer Date, the Purchaser shall have delivered
to the Seller the related Subsequent Receivables Purchase Price as provided
in Section 2.2(b).
ARTICLE V - COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, that to
the extent that any provision of this Article V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
Section 5.1 Protection of Right, Title and Interest.
(a) The Seller shall authorize and file such financing
statements and cause to be authorized and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interest of the Purchaser
under this Agreement in, to and under the Receivables and the other
property conveyed hereunder and in the proceeds thereof. The Seller shall
deliver (or cause to be delivered) to the Purchaser file-stamped copies of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) The Seller shall not change its name, identity, or
corporate structure in any manner that would, could, or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-506(b) of the Relevant UCC, unless it shall have given the
Purchaser at least 60 days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) The Seller shall give the Purchaser at least 60 days'
prior written notice of any relocation of its principal executive office or
of any change in its jurisdiction of organization if, as a result of such
relocation or change, the applicable provisions of the Relevant UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly
file any such amendment, continuation statement or new financing statement.
The Seller shall at all times maintain each office from which it shall
service Receivables, its principal executive office, and its jurisdiction
of organization within the United States of America.
(d) The Seller shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so
that, from and after the time of sale hereunder of the Receivables to the
Purchaser, the Seller's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of
the Purchaser in such Receivable and that such Receivable is owned by the
Purchaser (or, upon sale of the Receivables to the Trust, by the Trust).
Indication of the Purchaser's ownership of a Receivable shall be deleted
from or modified on the Seller's computer systems when, and only when, the
Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller shall propose to sell,
grant a security interest in, or otherwise transfer any interest in any
automobile or sports-utility vehicle receivables (other than the
Receivables) to any prospective purchaser, lender, or other transferee, the
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, compact disks, records, or print-outs (including
any restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable
has been sold and is owned by the Purchaser or its assignee unless such
Receivable has been paid in full or repurchased.
(g) The Seller shall permit the Purchaser and its agents
at any time during normal business hours to inspect, audit, and make copies
of and abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the
Purchaser, within ten Business Days, a list of all Receivables (by contract
number and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of Receivables.
Section 5.2 Other Liens or Interests. Except for the
conveyances hereunder, the Seller will not sell, pledge, assign or transfer
any Receivable to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any interest therein, and the Seller shall
defend the right, title, and interest of the Purchaser in, to and under the
Receivables against all claims of third parties claiming through or under
the Seller; provided, however, that the Seller's obligations under this
Section 5.2 shall terminate upon the termination of the Trust pursuant to
the Trust Agreement.
Section 5.3 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in,
to and under the Receivables.
Section 5.4 Indemnification.
(a) The Seller shall defend, indemnify, and hold harmless
the Purchaser from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from the
failure of a Receivable to be originated in compliance with all
requirements of law and for any breach of any of the Seller's
representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless
the Purchaser from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from the use,
ownership, or operation by the Seller or any Affiliate thereof of a
Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless
the Purchaser from and against any and all taxes, except for taxes on the
net income of the Purchaser, that may at any time be asserted against the
Purchaser with respect to the transactions contemplated herein and in the
Yield Supplement Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege, or
license taxes and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless
the Purchaser from and against any and all costs, expenses, losses,
damages, claims and liabilities to the extent that such cost, expense,
loss, damage, claim or liability arose out of, or was imposed upon the
Purchaser through, the negligence, willful misfeasance, or bad faith of the
Seller in the performance of its duties under this Agreement or the Yield
Supplement Agreement, as the case may be, or by reason of reckless
disregard of the Seller's obligations and duties under the Agreement or the
Yield Supplement Agreement, as the case may be.
(e) The Seller shall defend, indemnify, and hold harmless
the Purchaser from and against all costs, expenses, losses, damages, claims
and liabilities arising out of or incurred in connection with the
acceptance or performance of the Seller's trusts and duties as Servicer
under the Sale and Servicing Agreement, except to the extent that such
cost, expense, loss, damage, claim or liability shall be due to the willful
misfeasance, bad faith, or negligence (except for errors in judgment) of
the Purchaser.
These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
Section 5.5 Sale. The Seller agrees to treat this conveyance for
all purposes (including without limitation tax and financial accounting
purposes) as an absolute transfer on all relevant books, records, tax
returns, financial statements and other applicable documents.
Section 5.6 Transfer of Subsequent Receivables. On or prior to
each Determination Date during the Reinvestment Period, the Purchaser, or
the Servicer on its behalf, shall inform the Seller of a Negative Carry
Account Shortfall with respect to the following Payment Date. The Seller
shall have the option, but not the obligation, to pay to the Purchaser an
amount equal to such Negative Carry Account Shortfall by depositing an
amount equal to the Negative Carry Account Shortfall into the Negative
Carry Account on or prior to the second Business Day preceding the Payment
Date following the Determination Date.
ARTICLE VI - MISCELLANEOUS PROVISIONS
Section 6.1 Obligations of Seller. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 6.2 Repurchase Events. The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Owner Trustee, the Noteholders and the Certificateholders,
that the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.2(b) shall constitute an event obligating
the Seller to repurchase Receivables hereunder (each, a "Repurchase Event")
at a price equal to the Purchase Amount from the Purchaser or from the
Trust. Subject to Section 5.4(a), the repurchase obligation of the Seller
shall constitute the sole remedy to the Purchaser, the Indenture Trustee,
the Owner Trustee, the Noteholders and the Certificateholders against the
Seller with respect to any Repurchase Event.
Section 6.3 Purchaser's Assignment of Repurchased Receivables.
With respect to all Receivables repurchased by the Seller pursuant to
Section 6.2 of this Agreement, the Purchaser shall assign, without
recourse, representation or warranty, to the Seller all the Purchaser's
right, title and interest in, to and under such Receivables, and all
security and documents relating thereto.
Section 6.4 Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and
Servicing Agreement, sell the Initial Receivables to the Trust on the
Closing Date and the Subsequent Receivables to the Trust on the related
Subsequent Transfer Dates and assign its rights under this Agreement and
the Yield Supplement Agreement to the Owner Trustee for the benefit of the
Noteholders and the Certificateholders, and that the representations and
warranties contained in this Agreement and the rights of the Purchaser
under this Agreement, including under Sections 6.2 and 6.3, are intended to
benefit the Trust, the Noteholders and the Certificateholders. The Seller
hereby consents to such sale and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the
Receivables and its rights under this Agreement and the Yield Supplement
Agreement to the Indenture Trustee for the benefit of the Noteholders, and
the representations and warranties contained in this Agreement and the
rights of the Purchaser under this Agreement, including under Sections 6.2
and 6.3, are intended to benefit the Noteholders. The Seller hereby
consents to such pledge.
Section 6.5 Amendments.
(a) This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment that materially
adversely affects the rights of the Noteholders or the Certificateholders
under the Indenture, Sale and Servicing Agreement or Trust Agreement shall
be consented to by the Holders of Notes evidencing not less than 51% of the
then Outstanding Notes and the Holders of Certificates evidencing not less
than 51% of the Certificate Balance.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement may be amended by the Seller and the Purchaser,
but without the consent of any of the Holders to add, modify or eliminate
such provisions as may be necessary or advisable in order to (a) cure any
ambiguity, to revise, correct or supplement any provisions herein, (b)
enable the transfer to the Trust of all or any portion of the Receivables
to be derecognized by the Seller under GAAP, (c) enable the Trust to avoid
becoming a member of the Seller's consolidated group under GAAP or (d)
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,
however, it shall be a condition to any such amendment that the Rating
Agency Condition be met; and provided, further, that no such amendment
shall be inconsistent with the derecognition by the Seller of the
Receivables under GAAP or cause the Purchaser to become a member of the
Seller's consolidated group under GAAP.
Section 6.6 Accountants' Letters.
(a) Ernst & Young LLP will perform certain procedures
regarding the characteristics of the Receivables described in the Schedule
of Initial Receivables set forth as Exhibit B hereto and will compare those
characteristics to the information with respect to the Initial Receivables
contained in the Prospectus.
(b) Seller will cooperate with the Purchaser and Ernst &
Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the procedures
set forth in Section 6.6(a) above and to deliver the letters required of
them under the Underwriting Agreement.
(c) Ernst & Young LLP will deliver to the Purchaser a
letter, dated the date of the Prospectus, in the form previously agreed to
by the Seller and the Purchaser, with respect to the financial and
statistical information contained in the Prospectus under the captions
"Delinquency Experience," "Net Credit Loss and Repossession Experience" and
"Contracts Providing for Balloon Payments: Loss Experience on Returned
Vehicles," and with respect to such other information as may be agreed in
the forms of such letters.
Section 6.7 Waivers. No failure or delay on the part of
the Purchaser in exercising any power, right or remedy under this Agreement
or any Assignment shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any other
or further exercise thereof or the exercise of any other power, right or
remedy.
Section 6.8 Notices. All communications and notices
pursuant hereto to either party shall be in writing or by confirmed
facsimile and addressed or delivered to it at its address shown in the
opening portion of this Agreement or at such other address as may be
designated by it by notice to the other party and, if mailed or sent by
facsimile, shall be deemed given when mailed or when electronic
confirmation of the facsimile is received.
Section 6.9 Costs and Expenses. The Seller will pay all
expenses incident to the performance of its obligations under this
Agreement and the Seller agrees to pay all reasonable out-of-pocket costs
and expenses of the Purchaser, excluding fees and expenses of counsel, in
connection with the perfection as against third parties of the Purchaser's
right, title and interest in, to and under the Receivables and the
enforcement of any obligation of the Seller hereunder.
Section 6.10 Representations of the Seller and the
Purchaser. The respective agreements, representations, warranties and other
statements by the Seller and the Purchaser set forth in or made pursuant to
this Agreement shall remain in full force and effect and will survive the
Closing.
Section 6.11 Confidential Information. The Purchaser
agrees that it will neither use nor disclose to any Person the names and
addresses of the Obligors, except in connection with the enforcement of the
Purchaser's rights hereunder, under the Receivables, the Sale and Servicing
Agreement or as required by law.
Section 6.12 Headings and Cross-References. The various
headings in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
Section 6.13 Governing Law. This Agreement and each
Assignment shall be governed by, and 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 rights and remedies of the parties hereunder should be determined in
accordance with such laws.
Section 6.14 Agreements of Purchaser.
(a) The Purchaser will not commingle any of its assets
with those of the Seller or the ultimate parent of the Purchaser.
(b) The Purchaser will maintain separate corporate
records and books of account from those of the Seller or the ultimate
parent of the Purchaser.
(c) The Purchaser will conduct its business from an
office separate from the Seller or the ultimate parent of the Purchaser.
Section 6.15 Counterparts. This Agreement may be executed
in two or more counterparts and by different parties on separate
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., as Seller
By: /s/ C. A. Xxxxxxx
-------------------------------------
Name: C. A. Xxxxxxx
Title: Executive Vice President
and General Manager
MMCA AUTO RECEIVABLES TRUST,
as Purchaser
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Secretary & Treasurer
Exhibit A-1
FORM OF FIRST-TIER INITIAL ASSIGNMENT
Dated: __________, _____
For value received, in accordance with the Purchase
Agreement, dated as of __________, _____, between the undersigned and MMCA
AUTO RECEIVABLES TRUST (the "Purchaser") (as amended, supplemented or
otherwise modified and in effect from time to time, the "Purchase
Agreement"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the Purchase Agreement), all right, title and interest of
the undersigned, whether now owned or hereafter acquired, in, to and under
the following, collectively:
(i) the Initial Receivables;
(ii) with respect to Initial Receivables that are Actuarial
Receivables, monies due thereunder after the Initial
Cutoff Date (including Payaheads) and, with respect to
Initial Receivables that are Simple Interest Receivables,
monies received thereunder after the Initial Cutoff Date;
(iii) the security interests in Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any
other interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to the
Initial Receivables from claims on any physical damage,
theft, credit life or disability insurance policies
covering the related Financed Vehicles or related
Obligors;
(v) all rights to receive proceeds with respect to the
Initial Receivables from recourse to Dealers thereon
pursuant to the Dealer Agreements;
(vi) all of the Seller's rights to the Receivable Files that
relate to the Initial Receivables;
(vii) all payments and proceeds with respect to the Initial
Receivables held by the Seller;
(viii) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the
proceeds thereof acquired by the Seller pursuant to the
terms of an Initial Receivable that is a Final Payment
Receivable), guarantees and other collateral securing an
Initial Receivable (other than an Initial Receivable
purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under the
Initial Receivables in effect as of the Initial Cutoff
Date; and
(x) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds
of every kind and nature whatsoever in respect of any or
all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables,
instruments and other property which at any time
constitute all or part of or are included in the proceeds
of any of the foregoing.
The foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other Person in connection with the Initial
Receivables, the related Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This First-Tier Initial Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
undersigned contained in the Purchase Agreement and is to be governed by
the Purchase Agreement.
In the event that the foregoing sale, assignment,
transfer and conveyance is deemed to be a pledge, the undersigned hereby
grants to the Purchaser a first priority security interest in all of the
undersigned's right to and interest in the Initial Receivables and other
property described in clauses (i) through (x) above to secure a loan deemed
to have been made by the Purchaser to the undersigned in an amount equal to
the sum of the initial principal amount of the Notes plus accrued interest
thereon and the Initial Certificate Balance.
This First-Tier Initial Assignment shall be construed in
accordance with the laws of the State of New York and the obligations of
the undersigned under this First-Tier Initial Assignment shall be
determined in accordance with such laws.
Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in, or incorporated by
reference into, the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
First-Tier Initial Assignment to be duly executed as of __________, _____.
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
By: _______________________
Name:
Title:
Exhibit A-2
FORM OF FIRST-TIER SUBSEQUENT ASSIGNMENT
Dated: __________, _____
For value received, in accordance with the Purchase
Agreement, dated as of __________, _____, between the undersigned and MMCA
AUTO RECEIVABLES TRUST (the "Purchaser") (as amended, supplemented or
otherwise modified and in effect from time to time, the "Purchase
Agreement"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the Purchase Agreement), all right, title and interest of
the undersigned, whether now owned or hereafter acquired, in, to and under
the following, collectively:
(i) the Subsequent Receivables set forth in the Schedule of
Subsequent Receivables attached hereto as Schedule A;
(ii) with respect to the Subsequent Receivables that are
Actuarial Receivables, monies due thereunder on or after
__________, _____ (the "Subsequent Cutoff Date")
(including Payaheads) and, with respect to Subsequent
Receivables that are Simple Interest Receivables, monies
received thereunder on or after the Subsequent Cutoff
Date;
(iii) the security interests in Financed Vehicles granted by
Obligors pursuant to such Subsequent Receivables and any
other interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to such
Subsequent Receivables from claims on any physical
damage, theft, credit life or disability insurance
policies covering the related Financed Vehicles or
related Obligors;
(v) all rights to receive proceeds with respect to such
Subsequent Receivables from recourse to Dealers thereon
pursuant to Dealer Agreements;
(vi) all of the Seller's rights to the Receivable Files that
relate to such Subsequent Receivables;
(vii) all payments and proceeds with respect to such Subsequent
Receivables held by the Seller;
(viii) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the
proceeds thereof acquired by the Seller pursuant to the
terms of a Subsequent Receivable that is a Final Payment
Receivable), guarantees and other collateral securing a
Subsequent Receivable (other than a Subsequent Receivable
purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under such
Subsequent Receivables in effect as of the Subsequent
Cutoff Date; and
(x) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds
of every kind and nature whatsoever in respect of any or
all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables,
instruments and other property which at any time
constitute all or part of or are included in the proceeds
of any of the foregoing.
The foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other Person in connection with the Subsequent
Receivables, the related Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This First-Tier Subsequent Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
undersigned contained in the Purchase Agreement and is to be governed by
the Purchase Agreement.
The Seller hereby represents that as of the Subsequent
Cut-off Date the aggregate Principal Balance of the Subsequent Receivables
conveyed hereby was $____________.
In the event that the foregoing sale, assignment,
transfer and conveyance is deemed to be a pledge, the undersigned hereby
grants to the Purchaser a first priority security interest in all of the
undersigned's right to and interest in the Subsequent Receivables and other
property described in clauses (i) through (x) above to secure a loan deemed
to have been made by the Purchaser to the undersigned in an amount equal to
the sum of the initial principal amount of the Notes plus accrued interest
thereon and the Initial Certificate Balance.
This First-Tier Subsequent Assignment shall be construed
in accordance with the laws of the State of New York and the obligations of
the undersigned under this First-Tier Subsequent Assignment shall be
determined in accordance with such laws.
Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in, or incorporated by
reference into, the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
First-Tier Subsequent Assignment to be duly executed as of _________,
_____.
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
By: _______________________
Name:
Title:
Schedule A (to Exhibit A-2)
SCHEDULE OF SUBSEQUENT RECEIVABLES PROVIDED TO THE
INDENTURE TRUSTEE ON THE SUBSEQUENT CLOSING DATE, WHICH
MAY BE ON COMPUTER TAPE, COMPACT DISK, OR MICROFICHE
Exhibit B
SCHEDULE OF INITIAL RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPACT DISK OR MICROFICHE
SCHEDULE A
Locations of Receivables Files
Corporate Xxxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
National Service Center
00000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
