Exhibit 1.1
$_________________
MMCA AUTO OWNER TRUST 2002-5
$____________ ___% CLASS A-1 ASSET BACKED NOTES
$____________ ___% CLASS A-2 ASSET BACKED NOTES
$____________ ___% CLASS A-3 ASSET BACKED NOTES
$____________ ___% CLASS A-4 ASSET BACKED NOTES
$____________ ___% CLASS B ASSET BACKED NOTES
$____________ ___% CLASS C ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST II
UNDERWRITING AGREEMENT
__________ __, 2002
_______________________________________________
as Representative of the several Underwriters
__________________________
New York, New York ______
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust II (the "Seller"), a Delaware
statutory trust established pursuant to an amended and restated trust agreement,
dated as of July 29, 2002 (the "MART Trust Agreement"), between Mitsubishi
Motors Credit of America, Inc. ("MMCA") and Chase Manhattan Bank USA, N.A., as
trustee (the "MART Trustee"), proposes, subject to the terms and conditions
stated herein, to cause MMCA Auto Owner Trust 2002-5 (the "Trust") to issue and
sell to the several underwriters named in Schedule A hereto (the
"Underwriters"), acting severally and not jointly, for whom
__________________________ is acting as representative (the "Representative"),
$____________ aggregate principal amount of ___% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), $____________ aggregate principal amount of ___% Class
A-2 Asset Backed Notes (the "Class A-2 Notes"), $____________ aggregate
principal amount of ___% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
$____________ aggregate principal amount of ___% Class A-4 Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes"), $____________ aggregate
principal amount of ___% Class B Asset Backed Notes (the "Class B Notes") and
$____________ aggregate principal amount of ___% Class C Asset Backed Notes (the
"Class C Notes" and, together with the Class A Notes and the Class B Notes, the
"Notes"). The Notes will be issued pursuant to the indenture, dated as of
__________ 1, 2002 (the "Indenture"), between the Trust and Bank of
Tokyo-Mitsubishi Trust Company, as trustee (the "Indenture Trustee"), and will
represent indebtedness of the Trust.
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $____________ aggregate principal amount of
certificates (the "Certificates"), each representing an interest in the property
of the Trust (the "Trust Property"). The Seller will retain the Certificates.
The Certificates will be issued pursuant to the amended and restated trust
agreement, dated as of __________ 1, 2002 (the "Trust Agreement"), between the
Seller and Wilmington Trust Company, as trustee (the "Owner Trustee"). The
Certificates will be subordinated to the Notes. Capitalized terms used but not
defined herein have the meanings ascribed thereto in the Indenture, the purchase
agreement, dated as of __________ 1, 2002 (the "Purchase Agreement"), between
MMCA and the Seller, or the sale and servicing agreement, dated as of __________
1, 2002 (the "Sale and Servicing Agreement"), among the Trust, the Seller and
the Servicer (as defined below), as the case may be.
The assets of the Trust will include, among other things, (i) a pool of
motor vehicle retail installment sale contracts secured by new and used
automobiles and sport-utility vehicles to be conveyed to the Trust on the
Closing Date (as such term is defined in Section 3) (the "Initial Receivables")
and from time to time thereafter during the Pre-Funding Period (the "Subsequent
Receivables" and, together with the Initial Receivables, the "Receivables") and
(ii) with respect to (a) Actuarial Receivables, certain monies due thereunder on
or after the Cutoff Date and (b) Simple Interest Receivables, certain monies due
or received thereunder on or after the Cutoff Date. The Receivables will be sold
to the Trust by the Seller and will be serviced for the Trust by MMCA (in such
capacity, the "Servicer"). The term "Basic Documents" means (i) the Indenture;
(ii) the Trust Agreement; (iii) the first tier initial assignment, dated as of
__________ 1, 2002 (the "First Tier Initial Assignment"), as executed by MMCA;
(iv) a First Tier Subsequent Assignment; (v) the Purchase Agreement; (vi) the
Sale and Servicing Agreement; (vii) the certificate of trust, filed __________
__, 2002 (the "Certificate of Trust"), with the Secretary of State of the State
of Delaware; (viii) the administration agreement, dated as of __________ 1, 2002
(the "Administration Agreement"), among MMCA, as administrator (the
"Administrator"), the Trust and the Indenture Trustee; (ix) the note depository
agreement, dated as of the Closing Date (the "Note Depository Agreement"), among
the Trust, the Indenture Trustee, the Administrator and The Depository Trust
Company ("DTC"); (x) the yield supplement agreement, dated as of __________ __,
2002 (the "Yield Supplement Agreement"), between the Seller and MMCA; and (xi)
the control agreement, dated as of __________ 1, 2002 (the "Control Agreement"),
among the Seller, the Trust, the Servicer, the Indenture Trustee and Bank of
Tokyo-Mitsubishi Trust Company, as securities intermediary. "Transfer Date"
means, with respect to an Initial Receivable, the Closing Date, and with respect
to a Subsequent Receivable, the related Subsequent Transfer Date. The Seller
hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Seller. The Seller represents and
warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-99539) relating to
the Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Act"), and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If the Seller does not propose to
amend the registration statement and if any post-effective amendment to the
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent post-effective
amendment has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) under the Act ("Rule
462(c)"). For purposes of this Agreement, "Effective Time" means (i) if the
Seller has advised the Representative that it does not propose to amend the
registration statement, the date and time as of which the registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant to
Rule 462(c) or (ii) if the Seller has advised the Representative that it
proposes to file an amendment or post-effective amendment to the
registration statement, the date and time as of which the registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. "Effective Date"
means the date of the Effective Time. The registration statement, as
amended at the Effective Time, including all information (if any) deemed to
be a part of the registration statement as of the Effective Time pursuant
to Rule 430A(b) under the Act ("Rule 430A(b)"), is hereinafter referred to
as the "Registration Statement". The form of prospectus relating to the
Notes, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) under the Act ("Rule 424(b)") or, if no such filing is
required, as included in the Registration Statement at the Effective Time,
is hereinafter referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date of this Agreement
and on the Closing Date, the Registration Statement conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the Effective Time is subsequent to the execution and delivery of this
Agreement: (i) on the Effective Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the
Act and the Rules and Regulations, (ii) on the date of this Agreement and
on the Closing Date, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (iii) no additional registration statement related to
the Notes pursuant to Rule 462(b) under the Act has been or will be filed.
The two preceding sentences do not apply to statements in or omissions from
the Registration Statement or the Prospectus based upon written information
furnished to the Seller by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b).
(c) The Seller has been duly formed and is validly existing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del.C. ss. 3801
et. seq. (the "Delaware Trust Act"), with power and authority to own its
properties and conduct its business as described in the Prospectus, and the
Seller is duly qualified to do business and is in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(d) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Seller or the Trust for the consummation of the transactions
contemplated by this Agreement and the Basic Documents in connection with
the issuance of the Notes and the Certificates and the sale by the Seller
of the Notes, except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing of any
financing statements required to perfect the Seller's, the Trust's and the
Indenture Trustee's interest in the Receivables, which financing statements
will be filed in the appropriate offices within ten days of the Closing
Date.
(e) The Seller is not in violation of the MART Trust Agreement or
other organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or instrument to which it is a party or by which it or its
properties are bound which could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The execution,
delivery and performance of this Agreement and the Basic Documents, and the
issuance of the Notes and the Certificates and the sale by the Seller of
the Notes and compliance with the terms and provisions hereof and thereof
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Seller or any of its properties, or any
agreement or instrument to which the Seller is a party or by which the
Seller is bound or to which any of the properties of the Seller or any such
subsidiary is subject, or the MART Trust Agreement or other organizational
documents of the Seller, and the Seller has full power and authority to
authorize and issue the Notes and the Certificates and to sell the Notes as
contemplated by this Agreement, the Indenture and the Trust Agreement, to
enter into this Agreement and the Basic Documents to which it is a party
and to consummate the transactions contemplated hereby and thereby.
(f) On the Closing Date, the Seller will have directed the Owner
Trustee to authenticate and execute the Certificates and, when executed,
authenticated, delivered and paid for pursuant to the Sale and Servicing
Agreement and the Trust Agreement, the Certificates will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Trust, entitled to the benefits provided
in the Trust Agreement and enforceable in accordance with their terms.
(g) On the Closing Date, the Seller will have directed the Owner
Trustee to execute the Notes and directed the Indenture Trustee to
authenticate and deliver the Notes and, when executed, authenticated,
delivered and paid for pursuant to the Indenture and this Agreement, the
Notes will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Trust,
entitled to the benefits provided in the Indenture and enforceable in
accordance with its terms.
(h) The Seller possesses adequate certificates, authorities and
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by it and has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Seller, would individually or in the aggregate have a material adverse
effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Seller or any of its
properties that, if determined adversely to the Seller, would individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business or results of operations of the Seller, or
would materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement or the other Basic Documents to which
it is a party, or which are otherwise material in the context of the
issuance and sale of the Notes or the issuance of the Certificates; and no
such actions, suits or proceedings are threatened or, to the Seller's
knowledge, contemplated.
(j) As of the Closing Date, the representations and warranties of the
Seller contained in the Basic Documents will be true and correct.
(k) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Seller, whether or not arising in the ordinary course of
business and (ii) there have been no transactions entered into by the
Seller, other than those in the ordinary course of business, which are
material with respect to the Seller.
(l) Each of the Basic Documents to which the Seller is a party has
been duly authorized by the Seller and, when duly executed and delivered by
the Seller and the other parties thereto, will constitute a valid and
binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(m) This Agreement has been duly authorized, executed and delivered by
the Seller.
(n) The Seller has authorized the conveyance of the Receivables to the
Trust, and, as of the Closing Date, the Seller has directed the Trust to
execute and issue the Notes and the Certificates and to sell the Notes.
(o) The Seller's assignment and delivery of the Receivables to the
Trust on the related Transfer Dates will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(p) The Trust's assignment of the Receivables to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance except for any tax lien,
mechanics' lien or other lien or encumbrance that attaches by operation of
law.
(q) The Computer Tape of the Receivables created as of the related
Transfer Dates and made available to the Representative by the Servicer are
or will be, as applicable, complete and accurate as of the respective dates
thereof and include or will include, as applicable, an identifying
description of the Receivables that are listed on Schedule A to the Sale
and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Basic
Documents, the Notes and the Certificates and any other agreements
contemplated herein or therein shall have been paid or will be paid by the
Seller at or prior to the Closing Date to the extent then due.
(s) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Seller pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument under which the Seller is a debtor or
guarantor.
(t) The Seller is not and, after giving effect to the issuance of the
Notes and Certificates and the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus, will
not be required to be registered as an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, the respective principal amounts of each Class of Notes set
forth opposite the names of the Underwriters in Schedule A hereto at a purchase
price of, in the case of the (i) Class A-1 Notes, ___% of the principal amount
thereof; (ii) Class A-2 Notes, ___% of the principal amount thereof; (iii) Class
A-3 Notes, ___% of the principal amount thereof; (iv) Class A-4 Notes, ___% of
the principal amount thereof; (v) Class B Notes, ___% of the principal amount
thereof; and (vi) Class C Notes, ___% of the principal amount thereof.
The Seller will deliver against payment of the purchase price therefor,
the Notes of each Class in the form of one or more permanent global securities
in definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent Global Notes will be held only in book-entry form
through DTC, except in the limited circumstances described in the Prospectus.
Payment for the Notes shall be made by the Underwriters in Federal (same day)
funds by official check or checks or wire transfer to an account in New York
previously designated to the Representative by the Seller at a bank acceptable
to the Representative, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Four Times Square, New York, New York 10036 at 10:00 a.m., New York time,
on __________ __, 2002, or at such other time not later than seven full business
days thereafter as the Representative and the Seller determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing the Notes. The
Global Notes will be made available for checking at the above office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours prior to the Closing Date.
The Seller will deliver the Certificates to the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on the Closing Date. The certificate
for the Certificates so to be delivered will be in definitive form, in
authorized denominations and registered in the name of the Seller and will be
made available for checking at the above office of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP at least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the parties hereto have agreed that the Closing
Date will be not later than __________ __, 2002, unless otherwise agreed to as
described above.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the several
Underwriters:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Seller will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and
if consented to by the Representative, subparagraph (4)) of Rule 424(b) not
later than the earlier of (i) the second business day following the
execution and delivery of this Agreement or (ii) the fifteenth business day
after the Effective Date. The Seller will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus, or the Registration Statement or the Prospectus, and will not
effect such amendment or supplementation without the Representative's
consent; and the Seller will also advise the Representative promptly of the
effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment of or supplement to the Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Seller will promptly notify the
Representative of such event and will promptly prepare and file with the
Commission (subject to the Representative's prior review and consent
pursuant to Section 5(b)), at its own expense, an amendment or supplement
which will correct such statement or omission, or an amendment which will
effect such compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trust to make generally
available to Noteholders an earnings statement of the Trust covering a
period of at least 12 months beginning after the Effective Date which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after the end of
the Trust's fourth fiscal quarter following the fiscal quarter that
includes such Effective Date.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus and, so long as delivery of
a prospectus relating to the Notes is required under the Act in connection
with sales by any Underwriter or dealer, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available and in
such quantities as the Representative requests. The Prospectus shall be so
furnished on or prior to 3:00 p.m., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time. All other such documents shall be so furnished as soon as
available. The Seller will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative designates and
will continue such qualifications in effect so long as required for the
distribution of the Notes.
(g) For a period from the date of this Agreement until the retirement
of the Notes (i) the Seller will furnish to the Representative and, upon
request, to each of the other Underwriters, copies of each certificate and
the annual statements of compliance delivered to the Indenture Trustee
pursuant to Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the
Sale and Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Indenture Trustee pursuant
to Section 3.11 of the Sale and Servicing Agreement, by first-class mail as
soon as practicable after such statements and reports are furnished to the
Indenture Trustee, and (ii) such other forms of periodic certificates or
reports as may be delivered to the Indenture Trustee, the Owner Trustee or
the Noteholders under the Indenture, the Trust Agreement, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will furnish to the
Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Seller to
Noteholders, (ii) all documents filed, or caused to be filed, by the Seller
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (iii) such other information in the possession of
the Seller concerning the Trust as the Representative from time to time may
reasonably request.
(i) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees and other
expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Representative designates and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of the Notes, for any travel expenses of the Seller's officers and
employees and any other expenses of the Seller in connection with attending
or hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with respect to
the Notes by Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), Standard &
Poor's, a Division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's")
and Fitch Ratings ("Fitch" and, together with Xxxxx'x and Standard &
Poor's, the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Seller, the Seller shall
furnish such documents and take any such other action.
(k) On or before each Transfer Date, the Seller shall cause the
computer records of the Seller and MMCA relating to the Receivables to be
conveyed to the Trust on such Transfer Date to be marked to show the
Trust's absolute ownership of the Receivables and from and after the
related Transfer Date neither the Seller nor MMCA shall take any action
inconsistent with the Trust's ownership of such Receivables other than as
permitted by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Seller herein, to the accuracy of the statements of the Seller's
officers made pursuant to the provisions hereof, to the performance by the
Seller of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Ernst & Young LLP, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public accountants
within the meaning of the Act and the applicable Rules and Regulations and
stating in effect that they have performed certain specified procedures (i)
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Trust, MMCA and the Seller) set forth in the
Registration Statement and the Prospectus (and any supplements thereto),
agrees with the accounting records of the Trust, MMCA and the Seller,
excluding any questions of legal interpretation, and (ii) with respect to
the Receivables.
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such later date
as shall have been consented to by the Representative. If the Effective
Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a). Prior to the Closing Date, no stop
order or other order of the Commission suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or
the Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations or retail motor vehicle
financing business or sport-utility vehicle financing business of the
Trust, the Seller, Mitsubishi Motor Sales of America, Inc., Mitsubishi
Motors Corporation or MMCA which, in the judgment of a majority in interest
of the Underwriters (including the Representative), materially impairs the
investment quality of each Class of Notes or makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of Notes on the terms and in the manner
contemplated in the Prospectus; (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (iii) any banking
moratorium declared by Federal, California or New York authorities; (iv) a
material disruption in securities settlement, payment or clearance services
in the United States; or (v) any outbreak or escalation of hostilities in
which the United States is involved, any declaration of war by Congress or
any substantial national or international calamity or emergency or any
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets of the United States) such that, in the judgment of a majority in
interest of the Underwriters (including the Representative), the effect of
any such outbreak, escalation, declaration, calamity, emergency or material
adverse change makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each Class
of Notes on the terms and in the manner contemplated in the Prospectus.
(d) The Representative shall have received an opinion of (A) Xxxxx X.
Xxxxx, Esq., Director of Legal Affairs of the Seller and MMCA, (B) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special New York counsel to the Seller and
MMCA, and (C) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Trust, in each case dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters and, in
the aggregate, to the effect that:
(i) the Seller has been duly formed and is validly existing as a
statutory trust under the Delaware Trust Act, with full power and
authority to own its properties and conduct its business as described
in the Prospectus; the Seller is duly qualified to do business and is
in good standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such
qualification; and the Seller has full power and authority under the
Delaware Trust Act and under the MART Trust Agreement to enter into
and perform its obligations under this Agreement and the Basic
Documents to which it is a party, to direct the Indenture Trustee and
the Owner Trustee to execute the Notes and the Certificates,
respectively, and to consummate the transactions contemplated hereby
and thereby and had at all times, and now has, the power, authority
and legal right to acquire, own and sell the Receivables;
(ii) MMCA has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; MMCA is duly qualified to
do business and is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification; and MMCA has full power and authority to enter
into and perform its obligations under the note indemnification
agreement, dated __________ __, 2002 (the "Note Indemnification
Agreement"), between MMCA and the Representative, and the Basic
Documents to which it is a party and to consummate the transactions
contemplated hereby and thereby and had at all times, and now has, the
power, authority and legal right to acquire, own, sell and service the
Receivables;
(iii) each of the direction by the Seller to the Owner Trustee to
execute the Notes and the direction by the Seller to the Indenture
Trustee to authenticate and deliver the Notes has been duly authorized
by the Seller and, when the Notes have been duly executed by the Owner
Trustee and, when authenticated and delivered by the Indenture Trustee
in accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, the Notes
will be duly and validly issued and outstanding, will be entitled to
the benefits of the Indenture and will constitute valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their terms;
(iv) the direction by the Seller to the Owner Trustee to
authenticate and execute the Certificates has been duly authorized by
the Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee in accordance with
the terms of the Trust Agreement and the Certificates have been
delivered to and paid for by the Seller pursuant to the Sale and
Servicing Agreement and the Trust Agreement, the Certificates will be
duly and validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
(v) the Note Indemnification Agreement and each Basic Document to
which MMCA is a party has been duly authorized, executed and delivered
by MMCA;
(vi) no consent, approval, authorization or order of, or filing
with any governmental agency or body or any court is required for the
execution, delivery and performance by the Seller of this Agreement
and the Basic Documents to which it is a party, for the execution,
delivery and performance by MMCA of the Note Indemnification Agreement
and the Basic Documents to which it is a party or for the consummation
of the transactions contemplated by this Agreement, the Basic
Documents or the Note Indemnification Agreement, except for (i) the
filing of UCC financing statements in Delaware with respect to the
transfer of the Receivables to the Seller pursuant to the Purchase
Agreement (the "Seller Financing Statement") and the transfer of the
Trust Property to the Trust pursuant to the Sale and Servicing
Agreement (the "Trust Financing Statement") and the filing of a UCC
financing statement in Delaware with respect to the grant by the Trust
of a security interest in the Trust Property to the Indenture Trustee
pursuant to the Indenture (the "Indenture Financing Statement"), which
financing statements will be filed in the appropriate offices within
ten days of the Closing Date; (ii) such as have been obtained and made
under the Act; and (iii) such as may be required under state
securities laws;
(vii) the execution, delivery and performance by the Seller of
this Agreement and the Basic Documents to which it is a party, the
execution, delivery and performance by MMCA of the Note
Indemnification Agreement and the Basic Documents to which it is a
party and the consummation of any other of the transactions
contemplated herein, in the Note Indemnification Agreement or the
Basic Documents will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of MMCA or the Seller pursuant to the
terms of the Certificate of Incorporation or the By-Laws of MMCA or
the documents of organization of the Seller, or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over MMCA or the Seller or their respective
properties, or any agreement or instrument known to such counsel after
due investigation to which MMCA or the Seller is a party or by which
MMCA or the Seller or any of their respective properties is bound;
(viii) such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its effective
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date or as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and the Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to
be shown; and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus;
(ix) there are no actions, proceedings or investigations pending
to which the Seller or MMCA is a party or, to the best knowledge of
such counsel, after due inquiry, threatened before any court,
administrative agency or other tribunal having jurisdiction over MMCA
or the Seller, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of this
Agreement, the Note Indemnification Agreement, any Basic Document, the
Notes or the Certificates, (iii) seeking to prevent the issuance of
the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Basic Documents,
(iv) which might materially and adversely affect the performance by
the Seller or MMCA of its obligations under, or the validity or
enforceability of, this Agreement, the Note Indemnification Agreement,
any Basic Document, the Notes or the Certificates or (v) seeking
adversely to affect the federal income tax attributes of the Notes as
described in the Prospectus under the heading "FEDERAL INCOME TAX
CONSEQUENCES";
(x) the statements in the Registration Statement under the
heading "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute statements of matters of law or legal
conclusions with respect thereto, are correct in all material
respects;
(xi) each of MMCA and the Seller has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any
Receivable unenforceable by MMCA, the Seller, the Trust, the Owner
Trustee or the Indenture Trustee;
(xii) this Agreement and each Basic Document to which the Seller
is a party has been duly authorized, executed and delivered by the
Seller;
(xiii) such counsel is familiar with MMCA's standard operating
procedures relating to MMCA's acquisition of a perfected first
priority security interest in the vehicles financed by MMCA pursuant
to retail installment sale contracts in the ordinary course of MMCA's
business; assuming that MMCA's standard procedures are followed with
respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that MMCA has not
or will not continue to follow its standard procedures in connection
with the perfection of security interests in the Financed Vehicles),
MMCA has acquired or will acquire a perfected first priority security
interest in the Financed Vehicles; and
(xiv) immediately prior to the sale of the Receivables by MMCA to
the Seller pursuant to the Purchase Agreement and the First Tier
Initial Assignment, MMCA was the sole owner of all right, title and
interest in, to and under the Receivables and the other property to be
transferred by it to the Seller; immediately prior to the sale of the
Receivables by the Seller to the Trust pursuant to the Sale and
Servicing Agreement, the Seller was the sole owner of all right, title
and interest in, to and under the Receivables and the other property
to be sold by it to the Trust.
(e) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Seller and MMCA,
dated the Closing Date, and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Owner Trustee, a valid security
interest (as such term is defined in Section 1-201 of the UCC as in
effect in the State of New York (the "New York UCC")) in the Seller's
rights in the Receivables and proceeds thereof, which security
interest, if characterized as a transfer for security, will secure
payment of the Notes;
(ii) the provisions of the Sale and Servicing Agreement are
sufficient to constitute authorization by the Seller of the filing of
the Trust Financing Statement for purposes of Section 9-509 of the UCC
as in effect in the State of Delaware (the "Delaware UCC");
(iii) the Trust Financing Statement includes all of the types of
information required by Sections 9-502(a) and 9-516 of the Delaware
UCC in order for the Trust Financing Statement to be in appropriate
form for filing in the relevant filing office under the Delaware UCC;
(iv) under the Delaware UCC, upon the later of the attachment of
the security interest and the filing of the Trust Financing Statement
in the relevant filing office under the Delaware UCC, the security
interest in favor of the Owner Trustee in the Initial Receivables and
proceeds thereof will be perfected in the Seller's rights in the
Initial Receivables and proceeds thereof;
(v) the provisions of the Indenture are effective to create, in
favor of the Indenture Trustee, a valid security interest (as such
term is defined in Section 1-201 of the Relevant UCC) in the Initial
Receivables and proceeds thereof to secure payment of the Notes;
(vi) the provisions of the Indenture are sufficient to constitute
authorization by the Trust of the filing of the Indenture Financing
Statement for purposes of Section 9-509 of the Delaware UCC;
(vii) the Indenture Financing Statement includes all of the types
of information required by Sections 9-502(a) and 9-516 of the Delaware
UCC in order for the Indenture Financing Statement to be in
appropriate form for filing in the relevant filing office under the
Delaware UCC;
(viii) under the Delaware UCC, upon the later of the attachment
of the security interest and the filing of the Indenture Financing
Statement in the relevant filing office under the Delaware UCC, the
security interest in favor of the Indenture Trustee for the benefit of
the holders of the Notes will be perfected in the Trust's rights in
the Initial Receivables and proceeds thereof;
(ix) based on reviews of the organizational documents of the
Seller and the Trust, both the Seller and the Trust are "registered
organizations" under the Delaware UCC;
(x) assuming that each of the direction by the Seller to the
Owner Trustee to execute the Notes and the direction by the Seller to
the Indenture Trustee to authenticate and deliver the Notes has been
duly authorized by the Seller, when the Notes have been duly executed
by the Owner Trustee and authenticated and delivered by the Indenture
Trustee in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, the Notes
will be duly and validly issued and outstanding and will be entitled
to the benefits of the Indenture;
(xi) assuming that the direction by the Seller to the Owner
Trustee to execute, authenticate and deliver the Certificates has been
duly authorized by the Seller, when the Certificates have been duly
executed, authenticated and delivered by the Owner Trustee in
accordance with the terms of the Trust Agreement and the Certificates
have been delivered to and paid for by the Seller pursuant to the Sale
and Servicing Agreement and the Trust Agreement, the Certificates will
be duly and validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
(xii) the statements in the Prospectus under the heading "SOME
IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects;
(xiii) the Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act");
(xiv) the Indenture has been duly qualified under the Trust
Indenture Act;
(xv) no authorization, approval or consent of any court or
governmental agency or authority is necessary under the Federal law of
the United States or the laws of the State of New York in connection
with the execution, delivery and performance by the Seller of this
Agreement and the Basic Documents to which it is a party, the
execution, delivery and performance by MMCA of the Note
Indemnification Agreement and the Basic Documents to which it is a
party or for the consummation of the transactions contemplated by this
Agreement, the Note Indemnification Agreement or the Basic Documents,
except such as may be required under state securities laws and such as
have been obtained and made under the Act;
(xvi) the Registration Statement was declared effective under the
Act as of the date specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or was
included in the Registration Statement and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any part of
the Registration Statement or any amendment thereto, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to the best knowledge
of such counsel, such counsel does not know of any contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus;
(xvii) each Basic Document to which the Seller, MMCA or the Trust
is a party constitutes the legal, valid and binding agreement of the
Seller, MMCA or the Trust, as the case may be (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law)
except, as applicable, that such counsel need not express an opinion
with respect to indemnification or contribution provisions which may
be deemed to be in violation of the public policy underlying any law
or regulation;
(xviii) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, the Indenture constitutes the
legal, valid and binding agreement of the Trust, enforceable against
the Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law)
except, as applicable, that such counsel need not express an opinion
with respect to indemnification or contribution provisions which may
be deemed to be in violation of the public policy underlying any law
or regulation;
(xix) neither the Trust nor the Seller is and, after giving
effect to the issuance of the Notes and the Certificates and the sale
of the Notes and the application of the proceeds thereof, as described
in the Prospectus, neither the Trust nor the Seller will be, an
"investment company", as such term is defined in the Investment
Company Act; and
(xx) the Notes, the Certificates and each Basic Document conform
in all material respects with the descriptions thereof contained in
the Registration Statement and the Prospectus.
(f) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Seller, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that for
federal income tax purposes (i) the Notes will be characterized as
indebtedness of the Trust, (ii) the Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation and
(iii) the statements set forth in the Prospectus under the headings
"SUMMARY OF TERMS--Tax Status", "FEDERAL INCOME TAX CONSEQUENCES" and
"STATE TAX CONSEQUENCES" to the extent such statements constitute matters
of law or legal conclusions with respect thereto, are correct in all
material respects.
(g) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Seller, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that (i) for
California and Delaware state franchise and income tax purposes (A) the
Notes will be treated as indebtedness, (B) the Trust will not be subject to
franchise or income taxes at the entity level and (C) Noteholders not
otherwise subject to taxation in California or Delaware, respectively,
would not become subject to taxation in California or Delaware,
respectively, solely because of a Noteholder's ownership of a Note and (ii)
the statements set forth in the Prospectus under the headings "SUMMARY OF
TERMS--Tax Status" and "STATE TAX CONSEQUENCES", to the extent such
statements constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(h) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Seller, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that (i) the statements set
forth in the Prospectus under the headings "SUMMARY OF TERMS--ERISA
Considerations", "SUMMARY OF TERMS--Eligibility of Notes for Purchase by
Money Market Funds", "TERMS OF THE NOTES--Terms of the Indenture" (last
sentence of the last paragraph under "Events of Default Under the
Indenture" and first sentence of the second paragraph under "Remedies
Following an Event of Default under the Indenture" only), "SOME IMPORTANT
LEGAL ASPECTS OF THE RECEIVABLES" and "ERISA CONSIDERATIONS", to the extent
such statements constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(i) The Representative shall have received an opinion from each of (i)
Xxxxxxxx & Xxxxxx, special California, (ii) XxXxxxxx, Xxxxxxxxx & Xxxxxxx,
L.L.P., special Texas and (iii) Xxxxx, XxXxxxxx, Xxxxx, Xxxxxxxx & Xxxxxxx,
P.A., special Florida counsel, respectively, to the Seller and MMCA, dated
the Closing Date, and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that upon
consummation of the transactions contemplated by the Basic Documents, the
Trust had a perfected security interest in the Financial Vehicles financed
under Receivables originated in the relevant jurisdiction.
(j) The Representative shall have received from Xxxxxx Xxxxxx Xxxxx &
Wood LLP, counsel for the Underwriters, an opinion, dated the Closing Date,
with respect to the validity of the Notes, the Registration Statement, the
Prospectus and other related matters as the Representative may require, and
the Seller shall have furnished to such counsel such documents as it may
request for the purpose of enabling it to pass upon such matters.
(k) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President or any Vice
President and a principal financial or accounting officer, or equivalent
officer or officers, of each of the Seller and MMCA in which such officers,
to the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Seller in this Agreement
and of MMCA in the Note Indemnification Agreement are true and correct, as
applicable; the Seller or MMCA, as applicable, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; the representations
and warranties of the Seller or MMCA, as applicable, in the Basic Documents
are true and correct as of the dates specified in such agreements; the
Seller or MMCA, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under
such agreements at or prior to the Closing Date; no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; and, subsequent to the date of the Prospectus, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
otherwise), business, properties or results of operations of the Seller or
MMCA or their respective businesses except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(l) The Representative shall have received an opinion of Xxxxx, Xxxxxx
& Martin LLP, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York;
(ii) the Indenture Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the Sale
and Servicing Agreement, the Control Agreement and the Administration
Agreement;
(iii) the execution and delivery of the Indenture, the Control
Agreement and the Administration Agreement and the acceptance of the
Sale and Servicing Agreement and the performance by the Indenture
Trustee of its obligations under the Indenture, the Sale and Servicing
Agreement, the Control Agreement and the Administration Agreement have
been duly authorized by all necessary corporate action of the
Indenture Trustee and each has been duly executed and delivered on
behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement, the Control
Agreement and the Administration Agreement constitute valid and
binding obligations of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with their terms under the laws of the
State of New York and the Federal law of the United States;
(v) the execution and delivery by the Indenture Trustee of the
Indenture, the Control Agreement and the Administration Agreement and
the acceptance of the Sale and Servicing Agreement do not require any
consent, approval or authorization of, or any registration or filing
with, any New York or United States federal governmental authority,
other than the qualification of the Indenture Trustee under the Trust
Indenture Act;
(vi) each of the Notes has been duly authenticated and delivered
by the Indenture Trustee;
(vii) neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Control Agreement or the Administration Agreement nor
the fulfillment of the terms thereof by the Indenture Trustee will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, By-laws or other organizational
documents of the Indenture Trustee or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Indenture Trustee or any of its subsidiaries is a party or is bound or
any judgment, order or decree known to such counsel to be applicable
to the Indenture Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or any of
its subsidiaries;
(viii) to such counsel's knowledge there is no action, suit or
proceeding pending or threatened against the Indenture Trustee (as
trustee under the Indenture or in its individual capacity) before or
by any governmental authority that if adversely decided, would
materially adversely affect the ability of the Indenture Trustee to
perform its obligations under the Indenture, the Sale and Servicing
Agreement, the Control Agreement or the Administration Agreement; and
(ix) the execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture, the
Control Agreement and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion thereof, to
any lien created by or arising with respect to the Indenture Trustee
that are unrelated to the transactions contemplated in such
agreements.
(m) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., counsel to the Owner Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the State of Delaware;
(ii) the Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the other Basic Documents
to which it is a party and has duly authorized, executed and delivered
such Basic Documents and such Basic Documents constitute the legal,
valid and binding agreement of the Owner Trustee, enforceable in
accordance with their terms, except that certain of such obligations
may be enforceable solely against the Trust Property (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
(iii) the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee as trustee and authenticating agent;
each of the Notes has been duly executed by the Owner Trustee, on
behalf of the Trust;
(iv) the execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the other Basic Documents to
which it is a party and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a breach or
violation of or constitute a default under the Articles of Association
or By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner Trustee
of the Trust Agreement and, on behalf of the Trust, of the other Basic
Documents to which it is a party do not require any consent, approval
or authorization of, or any registration or filing with, any Delaware
or United States federal governmental authority having jurisdiction
over the trust power of the Owner Trustee, other than those consents,
approvals or authorizations as have been obtained and the filing of
the Certificate of Trust with the Secretary of State of the State of
Delaware.
(n) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing as a
statutory trust under the Delaware Trust Act;
(ii) the Trust has the power and authority under the Delaware
Trust Act and the Trust Agreement, and the Trust Agreement authorizes
the Owner Trustee, to execute, deliver and perform its obligations
under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Note Depository Agreement, the Control
Agreement, the Notes and the Certificates;
(iii) to the extent that Article 9 of the Delaware UCC is
applicable (without regard to conflict of laws principles), and
assuming that the security interest created by the Indenture in the
Receivables has been duly created and has attached, upon the filing of
the Indenture Financing Statement with the Secretary of State of the
State of Delaware the Indenture Trustee will have a perfected security
interest in the Trust's rights in such Receivables and the proceeds
thereof, and such security interest will be prior to any other
security interest granted by the Trust that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding
purchase money security interests underss.9-324 of the Delaware UCC
and temporarily perfected security interests in proceeds underss.9-315
of the Delaware UCC;
(iv) no re-filing or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interest
except for the filing of continuation statements at five year
intervals;
(v) assuming that the Notes have been duly executed by the Owner
Trustee on behalf of the Trust, and assuming that the Notes have been
duly authenticated by the Indenture Trustee, when the Notes have been
delivered in accordance with the Indenture, the Notes will be validly
issued and entitled to the benefits of the Indenture;
(vi) assuming that the Certificates have been duly authorized,
executed and authenticated by the Owner Trustee on behalf of the
Trust, when the Certificates have been issued and delivered in
accordance with the instructions of the Seller, the Certificates will
be validly issued and entitled to the benefits of the Trust Agreement;
and
(vii) under 12 Del. C. ss. 3805(b), no creditor of any
Certificateholder (including creditors of the Seller in its capacity
as Certificateholder) shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(o) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Seller, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, (i) with respect to the characterization of
the transfer of the Receivables by MMCA to the Seller and from the Seller
to the Trust and (ii) to the effect that should MMCA become the debtor in a
case under the Bankruptcy Code, and the Seller would not otherwise properly
be a debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising its judgment after full consideration
of all relevant factors, would not order, over the objection of the
Certificateholders or the Noteholders, the substantive consolidation of the
assets and liabilities of the Seller with those of MMCA and such opinion
shall be in substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and counsel for
the Underwriters.
(p) The Representative shall have received evidence satisfactory to it
and counsel for the Underwriters that, within ten days of the Closing Date,
UCC-1 financing statements have been filed in the office of the Secretary
of State of the State of Delaware reflecting (i) the transfer of the
interest of MMCA in the Receivables and the proceeds thereof to the Seller
and the transfer of the interest of the Seller in the Receivables and the
proceeds thereof to the Trust and (ii) the grant of the security interest
by the Trust in the Receivables and the proceeds thereof to the Indenture
Trustee.
(q) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representative
and the counsel for the Underwriters to the effect that (i) the provisions
of the Indenture are effective to create a valid security interest in favor
of the Indenture Trustee, to secure payment of the Notes, in all
"securities entitlements" (as defined in Section 8-102(a)(17) of the New
York UCC) with respect to "financial assets" (as defined in Section
8-102(a)(9) of the New York UCC) now or hereafter credited to the Reserve
Account or to the Yield Supplement Account (such securities entitlements,
the "Securities Entitlements"), (ii) the provisions of the Control
Agreement for purposes of Article 8 of the New York UCC are effective to
perfect the security interest of the Indenture Trustee in the Securities
Entitlements and (iii) no security interest of any other creditor of the
Trust will be prior to the security interest of the Indenture Trustee in
such Securities Entitlements.
(r) The Class A-1 Notes shall have been rated "Prime-1", "A-1+" and
"F1+" by Xxxxx'x, Standard & Poor's and Fitch, respectively. The Class A-2
Notes, Class A-3 Notes and Class A-4 Notes shall have been rated "Aaa",
"AAA" and "AAA" by Xxxxx'x, Standard & Poor's and Fitch, respectively, the
Class B Notes shall have been rated at least "A1", "A" and "A" by Xxxxx'x,
Standard & Poor's and Fitch, respectively, and the Class C Notes shall have
been rated at least "Baa2", "BBB" and "BBB" by Xxxxx'x, Standard & Poor's
and Fitch Ratings, respectively.
(s) The Representative shall have received a letter, dated the Closing
Date, of Xxxxx & Young LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for purposes of this subsection. (t) On the Closing Date, the
Certificates shall have been issued to the Seller.
(u) The Representative shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx, LLP and each other counsel for the Seller, a letter dated
the Closing Date to the effect that the Underwriters may rely upon each
opinion rendered by such counsel to any Rating Agency in connection with
the rating of any Class of Notes, as if each such opinion were addressed to
the Underwriters.
The Representative shall receive from Ernst & Young LLP, a reliance
letter with respect to the letter of Xxxxx & Young LLP required to be
delivered to either Standard & Poor's or Xxxxx'x in connection with each
transfer to the Trust of Subsequent Receivables.
(v) The Representative shall receive from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, and each other counsel for the Seller, reliance letters
with respect to each Opinion of Counsel required to be delivered to either
Standard & Poor's or Xxxxx'x in connection with each transfer to the Trust
of Subsequent Receivables.
The Seller will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Seller
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b); and provided, further, that
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit
of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes concerned, to the extent that
the untrue statement or omission or alleged untrue statement or omission
was eliminated or remedied in the Prospectus, which Prospectus was required
to be delivered by such Underwriter under the Act to such person and was
not so delivered if the Seller had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Seller against any losses, claims, damages or liabilities to
which the Seller may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Seller by such Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred
by the Seller in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the figures on the cover page
concerning the terms of the offering by the Underwriters, the concession
and reallowance figures appearing under the heading "Underwriting" and the
information contained in the sixth paragraph under the heading
"Underwriting".
(c) Promptly after receipt by any indemnified party under this Section
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section, notify the indemnifying party of the
claim or the commencement of that action; provided, however, that the
failure to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under Section 7(a) or 7(b),
except to the extent the indemnifying party has been materially prejudiced
by such failure; and provided further, however, that the failure to notify
any indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
Section 7(a) or (b). In any such action, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party has failed to
appoint counsel satisfactory to the indemnified party. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party if indemnity
could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a) or
7(b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 7(a) or 7(b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Seller on the one hand and the Underwriters on the other
from the offering of the Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Seller on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Seller on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Notes (before deducting expenses) received by the Seller
bear to the total underwriting discounts and commissions received by the
Underwriters in respect of the Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount under this
Agreement and under the Note Indemnification Agreement in excess of the
amount by which the underwriting discount or commission allocable to the
Notes underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller,
to each officer of the Seller who has signed the Registration Statement and
to each person, if any, who controls the Seller within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on the
Closing Date, the Representative may make arrangements satisfactory to the
Seller for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on the Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on the Closing Date and arrangements satisfactory to the Representative and the
Seller for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Seller except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or the Seller or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Notes by the Underwriters is not
consummated, the Seller shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Seller and the Underwriters pursuant to Section 7 shall remain in effect, and if
any Notes have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8, the Seller will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at _____________________, ____________, New
York, New York _____, Attention: ____________, Telecopy: (___) ___________, or,
if sent to the Seller, will be mailed, delivered or sent by facsimile and
confirmed to it at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Secretary/Treasurer, Telecopy: (000) 000-0000; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities issued
by the Seller or by a trust for which the Seller was the depositor which
securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement or the Note Indemnification Agreement taken by the Representative
will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
Underwriting Agreement
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST II
By:
------------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:
----------------------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule A hereto
SCHEDULE A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriters Notes Notes Notes Notes
------------.......... $---------- $---------- $---------- $----------
------------.......... ---------- ---------- ---------- ----------
------------.......... ---------- ---------- ---------- ----------
------------.......... ---------- ---------- ---------- ----------
Total $--------- $ --------- $---------- $----------
========== =========== =========== ===========
Amount of Amount of
Class A-1 Class A-2
Underwriters Notes Notes
------------.......... $---------- $----------
------------.......... $---------- $----------
=========== ============
