Exhibit 10.1
PURCHASE AGREEMENT
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
as Seller
and
MMCA AUTO RECEIVABLES TRUST
as Purchaser
Dated as of December 1, 2001
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..........................2
Section 2.3 The Closing............................................2
ARTICLE III - REPRESENTATIONS AND WARRANTIES...................................3
Section 3.1 Representations and Warranties of the Purchaser........3
Section 3.2 Representations and Warranties of the Seller...........4
ARTICLE IV - CONDITIONS........................................................9
Section 4.1 Conditions to Obligations of the Purchaser.............9
Section 4.2 Conditions to Obligation of the Seller................10
ARTICLE V - COVENANTS OF THE SELLER...........................................10
Section 5.1 Protection of Right, Title and Interest...............11
Section 5.2 Other Liens or Interests..............................12
Section 5.3 Costs and Expenses............ .......................12
Section 5.4 Indemnification.......................................12
Section 5.5 Sale..................................................13
ARTICLE VI - MISCELLANEOUS PROVISIONS.........................................13
Section 6.1 Obligations of Seller.................................13
Section 6.2 Repurchase Events.....................................13
Section 6.3 Purchaser's Assignment of Repurchased Receivables.....13
Section 6.4 Trust.................................................13
Section 6.5 Amendments............................................14
Section 6.6 Accountants' Letters..................................14
Section 6.7 Waivers...............................................14
Section 6.8 Notices...............................................14
Section 6.9 Costs and Expenses....................................15
Section 6.10 Representations of the Seller and the Purchaser.....15
Section 6.11 Confidential Information............................15
Section 6.12 Headings and Cross-References.......................15
Section 6.13 Governing Law.......................................15
Section 6.14 Agreements of Purchaser.............................15
Section 6.15 Counterparts........................................15
Exhibit A..........................................Form of First-Tier Assignment
Exhibit B................................................Schedule of Receivables
Schedule A........................................Locations of Receivables Files
PURCHASE AGREEMENT, dated as of December 1, 2001 (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 Receivables (such capitalized term and the
other capitalized terms used herein have the meanings assigned thereto
pursuant to Article I hereof), 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 December 1, 2001, between MMCA Auto Owner Trust 2001-4, 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, 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 Schedule of Receivables and the other property relating thereto (as
described below).
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 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
Receivables; (ii) with respect to Receivables that are Actuarial
Receivables, monies due thereunder after the Cutoff Date (including
Payaheads) and, with respect to Receivables that are Simple Interest
Receivables, monies received thereunder after the Cutoff Date; (iii) the
security interests in Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to the 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 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 Receivables;
(vii) all payments and proceeds with respect to the 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 Receivable that is a
Final Payment Receivable), guarantees and other collateral securing a
Receivable (other than a 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
Receivables in effect as of the 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 Receivables and the other property
described in clauses (i) through (x) of this Section 2.1(a) shall
constitute a sale of the Receivables and such other property from the
Seller to the Purchaser, conveying good title thereto free and clear of any
liens, and the 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 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. In
consideration for the 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
Receivables Purchase Price. An amount equal to $548,245,530.22 of the
Receivables Purchase Price shall be paid to the Seller in cash. The
remainder of the Receivables Purchase Price shall be paid by crediting the
Seller with a contribution to the capital of the Purchaser. The portion of
the Receivables Purchase Price to be paid in cash shall be by federal wire
transfer (same day) funds.
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 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 and the Closing 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 and the Closing 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 has duly authorized such sale and assignment to
the Purchaser by all necessary corporate action. This Agreement
and the First-Tier Assignment has been 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 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 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 Final Payment
Receivable).
(ii) Schedule of Receivables. The information set
forth in the Schedule of Receivables shall be true and correct in
all material respects as of the opening of business on the 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 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, 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 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 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.
(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 Cutoff Date of not less than $100.
(xix) No Bankrupt Obligors. No Receivable was due
from an Obligor who, as of the 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 98.48%
of the Pool Balance, constituting approximately 97.36% of the
total number of the Receivables, relate to new automobiles and
sports-utility vehicles, substantially all of which were
manufactured or distributed by Mitsubishi Motors. Approximately
1.35% of the Pool Balance, constituting approximately 2.29% of
the total number of Receivables, relate to used automobiles and
sports-utility vehicle, substantially all of which were
manufactured or distributed by Mitsubishi Motors. Approximately
0.15% of the Pool Balance, constituting approximately 0.31% of
the total number of Receivables, relate to program automobiles
and sports-utility vehicles, substantially all of which were
manufactured or distributed by Mitsubishi Motors. Approximately
0.02% of the Pool Balance, constituting approximately 0.03% of
the total number of 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 Cutoff Date, not more than 66 remaining
Scheduled Payments due.
(xxiii) Weighted Average Number of Payments. As of
the Cutoff Date, the weighted average number of payments
remaining until the maturity of the Receivables shall be not more
than 59 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 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 Final Payment
Receivables, as a percentage of the Pool Balance as of the Cutoff
Date, shall be not greater than 40.92%.
(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.
(xxxi) Prepaid Receivables. No Receivable shall
have been pre-paid by more than six monthly payments as of the
Cutoff Date.
(xxxii) Limited Credit Experience. The aggregate
principal balance of the Receivables on which the Obligor has
limited credit experience, as a percentage of the aggregate
principal balance of all of such Receivables as of the Cutoff
Date, shall be not greater than 4.55%.
(xxxiii) Deferred Payment Receivables. As of the
Cutoff Date $315,249,584.28 total Principal Balance of Deferred
Payment Receivables included in the 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 Cutoff Date
$94,949,377.96 total Principal Balance of Deferred Payment
Receivables included in the Receivables had a first payment that,
as of the date of inception of the Receivables, was deferred for
a period of between 200 and 299 days. As of the Cutoff Date
$9,867,395.87 total Principal Balance of Deferred Payment
Receivables included in the Receivables had a first payment that,
as of the date of inception of the Receivables, was deferred for
a period of between 100 and 199 days. As of the Cutoff Date
$2,587,992.03 total Principal Balance of Deferred Payment
Receivables included in the Receivables had a first payment that,
as of the date of inception of the Receivables, 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) Deferred Balloon Payment Receivables. As
of the Cutoff Date, $10,173,376.15 total principal balance of
Deferred Balloon Payment Receivables were originated with a
deferral period of 90 days, and $7,887,002.26 total principal
balance of Deferred Balloon Payment Receivables were originated
with a deferral period of 180 days.
(xxxv) 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.
The obligation of the Purchaser to purchase the 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 Receivables have been sold to the
Purchaser pursuant to this Agreement and the First-Tier
Assignment and deliver to the Purchaser the Schedule of
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.
(A) The First-Tier Assignment. At the
Closing, the Seller will execute and deliver the First-Tier
Assignment in substantially the form of Exhibit A hereto.
(B) The Yield Supplement Agreement. At the
Closing, the Seller will execute and deliver the Yield
Supplement Agreement.
(C) 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
Receivables and the other property conveyed under Section
2.1 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
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.
(D) 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.
Section 4.2 Conditions to Obligation of the Seller. The
obligation of the Seller to sell the Receivables to the Purchaser on the
Closing 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 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.
(b) Receivables Purchase Prices. (i) On or prior to
the Closing Date, the Purchaser shall deliver to the Seller the Receivables
Purchase Price, as provided in Section 2.2.
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.
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 Receivables to the Trust on the Closing Date
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 Receivables set forth as Exhibit B hereto and will compare
those characteristics to the information with respect to the 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
FORM OF FIRST-TIER 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 Receivables; (ii) with respect to
Receivables that are Actuarial Receivables, monies due thereunder after the
Cutoff Date (including Payaheads) and, with respect to Receivables that are
Simple Interest Receivables, monies received thereunder after the Cutoff
Date; (iii) the security interests in Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Seller in such
Financed Vehicles; (iv) all rights to receive proceeds with respect to the
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
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 Receivables; (vii) all payments and proceeds with respect to
the 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
Receivable that is a Final Payment Receivable), guarantees and other
collateral securing a Receivable (other than a 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 Receivables in effect as of the 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 Receivables,
the related Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This First-Tier 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 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 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 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 Indenture, dated as of December 1, 2001, between MMCA
Auto Owner Trust 2001-4, as issuer, and Bank of Tokyo-Mitsubishi Trust
Company, as indenture trustee.
IN WITNESS WHEREOF, the undersigned has caused this
First-Tier Assignment to be duly executed as of __________, _____.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: ________________________________________
Name:
Title:
Exhibit B
SCHEDULE OF RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPUTER TAPE,
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
