Exhibit No. 1.1
$832,518,000
MMCA AUTO OWNER TRUST 1998-1
$200,000,000 5.621% CLASS A-1 ASSET BACKED NOTES
$250,000,000 5.72% CLASS A-2 ASSET BACKED NOTES
$322,056,000 5.86% CLASS A-3 ASSET BACKED NOTES
$60,462,000 6.07% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES, INC.
UNDERWRITING AGREEMENT
August 13, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
as Representative of the several Underwriters
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
1. Introductory. MMCA Auto Receivables, Inc., a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause MMCA Auto Owner Trust 1998-1 (the "Trust") to issue
and sell $200,000,000 aggregate principal amount of 5.621% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), $250,000,000 aggregate principal
amount of 5.72% Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
$322,056,000 aggregate principal amount of 5.86% Class A-3 Asset Backed
Notes (the "Class A-3 Notes") and $60,462,000 aggregate principal amount of
6.07% Class B Asset Backed Notes (the "Class B Notes," and together with
the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the
"Notes"). The Notes will be issued pursuant to the Indenture dated as of
August 1, 1998 (the "Indenture"), between the Trust and Bank of
Tokyo-Mitsubishi Trust Company (the "Indenture Trustee").
Concurrently with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $97,669,451.88 aggregate
principal amount of certificates of beneficial interest (the
"Certificates"), each representing an interest in the Trust Property. The
Company will retain the Certificates. The Certificates will be issued
pursuant to the Amended and Restated Trust Agreement, dated as of August 1,
1998 (the "Trust Agreement"), between the Company and Wilmington Trust
Company, as Owner Trustee. The Certificates are subordinated to the Notes.
The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sale contracts secured by new and used
automobiles and light-and medium-duty trucks (the "Receivables"), with
respect to Actuarial Receivables, certain monies due thereunder on or after
August 1, 1998 (the "Cutoff Date"), and, with respect to Simple Interest
Receivables, certain monies due or received thereunder on or after the
Cutoff Date, such Receivables to be sold to the Trust by the Company and to
be serviced for the Trust by Mitsubishi Motors Credit of America, Inc.
("MMCA" or, in its capacity as servicer, the "Servicer"). Capitalized terms
used but not defined herein have the meanings ascribed thereto in the Sale
and Servicing Agreement to be dated as of August 1, 1998 (the "Sale and
Servicing Agreement"), among the Trust, the Company and the Servicer or, if
not defined therein, in the Indenture, the Trust Agreement or the Purchase
Agreement, as the case may be. "Basic Documents" means, collectively, Basic
Documents, as defined in the Trust Agreement and Basic Documents, as
defined in the Indenture. The Company hereby agrees with the several
Underwriters named in Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-58869)
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 "1933 Act"), and is not
proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If the Company 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 1933 Act ("Rule 462(c)").
For purposes of this Agreement, "Effective Time" means (i) if the
Company has advised Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), as representative of
the Underwriters (in such capacity, 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 Company 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 under the 1933 Act ("Rule 430A Information"), 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 1933 Act ("Rule
424(b)") or, if no such filing is required, as included in the
Registration Statement, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the 1933 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 1933 Act and the rules and regulations of the
Commis sion thereunder (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, 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 1933 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 respects to the requirements
of the 1933 Act and the Rules and Regulations, (ii) 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) 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 Company by any Underwriter through the
Representative specifically for use therein.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation 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 Company 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 Company of Notes, except
such as have been obtained and made under the 1933 Act, such as may
be required under state securities laws and the filing of any
financing statements required to perfect the Company'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 (10) days of the Closing Date (as such term is defined
in Section 3).
(e) The Company is not in violation of its Certificate of
Incorporation or Bylaws 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 Company 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 Company or
any of its properties, or any agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the properties of the Company or any such subsidiary is subject,
or the Certificate of Incorporation or By-laws of the Company, and
the Company 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 and to consummate the
transactions contemplated hereby and thereby.
(f) On the Closing Date, the Company will have directed the
Owner Trustee to authenticate and execute the Certificates and,
when delivered and paid for pursuant to 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) The Company 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 Company, would individually or in the
aggregate have a material adverse effect on the Company.
(h) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company or any of its properties that, if determined adversely to
the Company, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or
results of operations of the Company, or would materially and
adversely affect the ability of the Company 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 Company's knowledge, contemplated.
(i) As of the Closing Date, the representations and
warranties of the Company contained in the Basic Documents will be
true and correct.
(j) 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 Company,
whether or not arising in the ordinary course of business and (ii)
there have been no transactions entered into by the Company, other
than those in the ordinary course of business, which are material
with respect to the Company.
(k) Each of the Basic Documents to which the Company is a
party has been duly authorized by the Company and, when duly
executed and delivered by the Company and the other parties
thereto, will constitute a valid and binding agreement of the
Company, enforceable against the Company 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).
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The Company has authorized the conveyance of the
Receivables to the Trust and, as of the Closing Date, the Company
has directed the Trust to execute and issue the Notes and the
Certificates and to sell the Notes.
(n) The Company's assignment and delivery of the Receivables
to the Trust as of the Closing Date will vest in the Trust all of
the Company's right, title and interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.
(o) 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.
(p) The Computer Tape of the Receivables created as of
August 1, 1998 and made available to the Representative by the
Servicer was complete and accurate as of the date thereof and
includes an identifying description of the Receivables that are
listed on Schedule A to the Sale and Servicing Agreement.
(q) 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 Company at or prior to the Closing Date
to the extent then due.
(r) 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 Company
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 Company is a debtor or
guarantor.
(s) The Company is not and, after giving effect to the
issuance of the 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 defined in the Investment Company Act of 1940 (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 Company agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of, in the case of (i) the
Class A-1 Notes, 100.000000% of the principal amount thereof; (ii) the
Class A-2 Notes, 99.998812% of the principal amount thereof; (iii) the
Class A-3 Notes, 99.990796% of the principal amount thereof; and (iv) the
Class B Notes, 99.990291% of the principal amount thereof, the respective
principal amounts of each Class of the Notes set forth opposite the names
of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price, 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 The Depository Trust Company ("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 Xxxxxxx Xxxxx by the Company at a bank acceptable
to Xxxxxxx Xxxxx, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York
time, on August 20, 1998, or at such other time not later than seven full
business days thereafter as Xxxxxxx Xxxxx and the Company 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
all of 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 Company 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 Company
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 "1934 Act"), the parties hereto have agreed that the
Closing Date will be not later than August 20, 1998, 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 Company. The Company agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Prospectus
with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by Xxxxxxx Xxxxx,
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 Company will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Company 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 supple
mentation without the Representative's consent; and the Company
will also advise the Representative promptly of the effectiveness
of the Registration Statement (if its Effective Time is subsequent
to the execution and delivery of this Agreement) and of any
amendment or supplementation of 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 1933 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 1933 Act, the Company will promptly
notify the Representative of such event and will promptly prepare
and file with the Commission (subject to the Representative's prior
review 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 Company will cause the
Trust to make generally available to the 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 1933 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 Company 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
to be delivered under the 1933 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 Company
will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company 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 Company 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 Sale and Servicing Agreement or the other Basic
Documents.
(h) So long as any Note is outstanding, the Company will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Company to Noteholders, (ii) all documents
filed, or caused to be filed, by the Company with the Commission
pursuant to the 1934 Act, any order of the Commission thereunder
and (iii) such other information in the possession of the Company
concerning the Trust as the Representative from time to time may
reasonably request.
(i) The Company 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 Company's officers and employees and any other expenses of the
Company 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 rating provided with
respect to the Notes by Xxxxx'x Investors Service, Inc. ("Moody's")
and Standard & Poor's, a Division of The XxXxxx-Xxxx Companies,
Inc. ("Standard & Poor's" and, together with Moody's, the "Rating
Agencies") is conditional upon the furnishing of documents or the
taking of any other action by the Company, the Company shall
furnish such documents and take any such other action.
(k) On or before the Closing Date, the Company shall cause
the computer records of the Company and MMCA relating to the
Receivables to be marked to show the Trust's absolute ownership of
the Receivables, and from and after the Closing Date neither the
Company 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 Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company 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 1933 Act and the applicable
Rules and Regulations and stating in effect that (i) they have
performed certain specified procedures 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 Company) set forth in the Registration
Statement and the Prospectus (and any supplements thereto), agrees
with the accounting records of the Trust, MMCA and the Company,
excluding any questions of legal interpretation, and (ii) they have
performed certain specified procedures with respect to the
Receivables.
For purposes of this subsection, (i) if the Effective Time
is subsequent to the execution and delivery of this Agreement,
"Registration Statement" shall mean the registration statement as
proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to the Effective Time, including the 430
Information, and (ii) "Prospectus" shall mean the prospectus
included in the Registration Statement. All financial statements
and schedules included in material incorporated by reference into
the Prospectus shall be deemed included in the Registration
Statement for purposes of this subsection.
(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 5:00 p.m., New York time, on the date following 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 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
Company or the Representative, shall be contemplated by the
Commission.
(c) The Representative shall have received an opinion of X.
Xxxx Xxxxxx, Esq., General Counsel of the Company, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect
that:
(i) the Company has been duly incorporated and is an
existing corpora tion in good standing under the laws of the
State of Delaware, with full corporate power and authority
to own its properties and conduct its business as described
in the Prospectus; the Company 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 Company
has full power and authority to enter into and perform its
obligations under this Agreement and the Basic Documents to
which it is a party, to direct the Owner Trustee to execute
the Notes and the Certificates, 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 this Agreement,
the Note Indemnification Agreement dated the date hereof
(the "Note Indemnification Agreement") between MMCA and the
Representative, acting on behalf of itself and as
Representative of the several Underwriters, 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 Company to the
Indenture Trustee to authenticate the Notes and the
direction by the Company to the Owner Trustee to execute the
Notes has been duly authorized by the Company and, when the
Notes have been duly executed and delivered by the Owner
Trustee and, when authenticated 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,
will be duly and validly issued and outstanding and will be
entitled to the benefits of the Indenture;
(iv) the direction by the Company to the Owner
Trustee to authenticate and execute the Certificates has
been duly authorized by the Company and, when the
Certificates have been duly executed, authenticated and
delivered in accordance with the terms of the Trust
Agreement and the Certificates have been delivered to and
paid for by the Company 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) each Basic Document to which the Company or MMCA
is a party has been duly authorized, executed and delivered
by the Company and MMCA, respectively;
(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 Company 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
Uniform Commercial Code financing statements in California
with respect to the transfer of the Receivables to the
Company pursuant to the Purchase Agreement and the transfer
of the Trust Property to the Trust pursuant to the Sale and
Servicing Agreement and the filing of a Uniform Commercial
Code 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,
which financing statements will be filed in the appropriate
offices within ten (10) days of the Closing Date; (ii) such
as have been obtained and made under the 1933 Act; and (iii)
such as may be required under state securities laws;
(vii) the execution, delivery and performance of this
Agreement and the Basic Documents by the Company, the
execution, delivery and performance of the Note
Indemnification Agreement and the Basic Documents by MMCA
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 Company pursuant to the terms of the
Certificate of Incorporation or the By-Laws of MMCA or the
Company, or any statute, rule, regulation or order of any
governmental agency or body, or any court having
jurisdiction over MMCA or the Company or their respective
properties, or any agreement or instrument known to such
counsel after due investigation to which MMCA or the Company
is a party or by which MMCA or the Company or any of their
respective properties is bound;
(viii) such counsel has no reason to believe that
any part of the Registra tion Statement or any amendment
thereto, as of its effective date or as of such Closing
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 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 Company 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
Company, (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
Company 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 "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES";
(x) the statements in the Registration Statement
under the heading "CERTAIN 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 Company 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 the
Company, the Trust, the Owner Trustee or the Indenture
Trustee;
(xii) this Agreement has been duly authorized,
executed and delivered by the Company; and the Note
Indemnification Agreement has been duly authorized, executed
and delivered by MMCA;
(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;
(xiv) the Assignment dated as of August 1, 1997 from
MMCA to the Company has been duly authorized, executed and
delivered by MMCA;
(xv) the Receivables are chattel paper as defined in
the UCC; and
(xvi) immediately prior to the sale of Receivables
by MMCA to the Company pursuant to the Purchase Agreement
and the 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 Company.
Immediately prior to the sale of Receivables by the Company
to the Trust pursuant to the Sale and Servicing Agreement,
the Company 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.
(d) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Company, dated the Closing Date, and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) each Receivable is a motor vehicle retail
installment sales contract that constitutes "chattel paper"
as defined in Section 9-105 of the UCC in effect in the
States of New York, Delaware and California;
(ii) 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 New York UCC) in the Company's
rights in the Receivables and proceeds thereof, which
security interest, if characterized as a transfer for
security, will secure payment of the Notes;
(iii) the financing statement naming the Company as
debtor and the Trust as secured party in appropriate form
for filing in the relevant filing office under the New York
UCC. Upon the filing of the Financing Statement in the
relevant filing office, the security interest in favor of
the Owner Trustee in the Receivables and proceeds thereof
will be perfected, and no other security interest of any
other creditor of the Company will be equal or prior to the
security interest of the Owner Trustee in the Receivables
and proceeds thereof;
(iv) 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 Receivables and proceeds thereof to
secure payment of the Notes;
(v) assuming that each of the direction by the
Company to the Indenture Trustee to authenticate the Notes
and the direction by the Company to the Owner Trustee to
execute and deliver the Notes has been duly authorized by
the Company, when the Notes have been duly executed and
delivered by the Owner Trustee and authenticated 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;
(vi) assuming that the direction by the Company to
the Owner Trustee to authenticate and execute the
Certificates has been duly authorized by the Company, when
the Certificates have been duly executed, authenticated and
delivered in accordance with the terms of the Trust
Agreement and the Certificates have been delivered to and
paid for by the Company 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;
(vii) the statements in the Prospectus under the
caption "CERTAIN LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute matters of law or legal conclusions,
are correct in all material respects;
(viii) the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act");
(ix) the Indenture has been duly qualified under the
Trust Indenture Act;
(x) 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 Company 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 1933 Act;
(xi) the Registration Statement was declared
effective under the 1933 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 1933 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
1933 Act and the Rules and Regulations; such counsel have 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;
(xii) each of the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Yield
Supplement Agreement and the Assignment constitutes the
legal, valid and binding agreement of the Company and MMCA,
in each case as to those documents to which it is a party,
enforceable against the Company and MMCA in accordance with
their 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;
(xiii) 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;
(xiv) neither the Trust nor the Company is and,
after giving effect to the issuance and sale of the Notes
and the Certificates and the application of the proceeds
thereof, as described in the Prospectus, neither the Trust
nor the Company will be, an "investment company" as defined
in the Investment Company Act of 1940, as amended;
(xv) the Notes, the Certificates, the Purchase
Agreement, the Administra tion Agreement, the Sale and
Servicing Agreement, the Yield Supplement Agreement, the
Trust Agreement, this Agreement and the Indenture each
conform in all material respects with the descriptions
thereof contained in the Registration Statement and the
Prospectus;
(xvi) the Trust Agreement is the legal, valid and
binding agreement of the Company, enforceable against the
Company, in accordance with its terms under
the law of the State of Delaware; and
(xvii) this Agreement has been duly authorized,
executed and delivered by the Company; and the Note
Indemnification Agreement has been duly authorized, executed
and delivered by MMCA.
(e) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for
the Company, 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 that is secured
by the Receivables, (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--ERISA Considerations", "ERISA
CONSIDERATIONS", "SUMMARY--Tax Status", "CERTAIN FEDERAL INCOME TAX
CONSE QUENCES" and "DESCRIPTION OF THE NOTES--Indenture--" (last
sentence of second paragraph under "--Events of Default" and last
sentence of first paragraph under "--Remedies" only), to the extent
such statements constitute matters of law or legal conclusions with
respect thereto, are correct in all material respects.
(f) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for
the Company, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that for California and Delaware state franchise and
California and Delaware state income tax purposes (i) the Notes
will be characterized as indebtedness of the Trust that is secured
by the Receivables, (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--Tax Status" and "CERTAIN 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 from Brown & Wood
LLP, counsel for the Underwriters, such opinion or opinions, 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 Company shall have
furnished to such counsel such documents as it may request for the
purpose of enabling it to pass upon such matters.
(h) 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 of each of the Company and MMCA in which such officers, to
the best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in
this Agreement are true and correct; the representations of MMCA in
the Note Indemnification Agreement are true and correct; the
Company 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 Company or MMCA, as
applicable, in the Basic Documents are true and correct as of the
dates specified in such agreements; the Company 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 in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company or MMCA, whether or
not arising in the ordinary course of business.
(i) The Representative shall have received an opinion of
Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxx, counsel to the Indenture Trustee,
dated the Closing Date and satis factory 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 and
the Administration Agreement;
(iii) the execution and delivery of the Indenture 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 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
and the Adminis tration 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 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 by
the Indenture Trustee;
(vii) neither the consummation by the Indenture
Trustee of the transac tions contemplated in the Sale and
Servicing Agreement, the Indenture 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 or the Administration Agreement; and
(ix) the execution, delivery and performance by the
Indenture Trustee of the Sale and Servicing Agreement, the
Indenture 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.
(j) 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, morato rium 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 owner
trustee and authenticating agent; each of the Notes has been
duly executed and delivered by the Owner Trustee, on behalf
of the
Trust;
(iv) the execution and delivery by the Owner Trustee of
the Trust Agree ment 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.
(k) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satis factory 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 business trust under the Delaware Business
Trust Act, 12 Del.C. ss.3801 et seq. (the "Delaware Act");
(ii) the Trust has the power and authority under the
Delaware 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 Notes and the Certificates;
(iii) to the extent that Article 9 of the UCC as in
effect in the State of Delaware (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 a financing statement with the
Secretary of 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 under ss.9-312(4) of the
Delaware UCC and temporarily perfected security interests in
proceeds under ss.9-306(3) 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 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 Company, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement; and
(vi) under 12 Del. C. ss.3805(b), no creditor of any
Certificateholder (including creditors of the Company 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.
(l) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company,
dated the Closing Date and satis factory 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 Company and from the Company to the Trust and (ii)
to the effect that should MMCA become the debtor in a case under
the Bankruptcy Code, and the Company 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 reasonable judgment
after full consideration of all relevant factors, should not order,
over the objection of the Certificateholders or the Noteholders,
the substantive consolidation of the assets and liabilities of the
Company 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.
(m) The Representative shall have received evidence
satisfactory to it and its counsel that, within ten (10) days of
the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the state of (i)
California reflecting the transfer of the interest of MMCA in the
Receivables and the proceeds thereof to the Company and the
transfer of the interest of the Company in the Receivables and the
proceeds thereof to the Trust and (ii) Delaware reflecting the
grant of the security interest by the Trust in the Receivables and
the proceeds thereof to the Indenture Trustee.
(n) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Company, 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 (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.
(o) Each Class of the Class A Notes shall have been rated in
the highest rating category by Xxxxx'x and Standard & Poor's and
the Class B Notes shall have been rated in the third highest
category by Xxxxx'x and Standard & Poor's.
(p) 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 five
days prior to such Closing Date for purposes of this subsection.
(q) On or prior to the Closing Date, the Certificates shall
have been issued to the Company.
(r) The Representative shall have received from Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP and each other counsel for the
Company, a letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such counsel to
either Standard & Poor's or Xxxxx'x in connection with the rating
of any Class of the Notes, as if each such opinion were addressed
to the Underwriters.
The Company 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 Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information
or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). The foregoing indemnity with respect to any
untrue statement contained in or any omission from the Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any
such loss, liability, claim, damage or expense purchased any of the
Notes that are the subject thereof if (i) the untrue statement or
omission contained in the Prospectus was corrected; (ii) such
person was not sent or given a copy of the Prospectus which
corrected the untrue statement or omission at or prior to the
written confirmation of the sale of such Notes to such person if
required by applicable law; and (iii) the Company satisfied its
obligation pursuant to Section 4(e) of this Agreement to provide a
sufficient number of copies of the Prospectus to the Underwriters.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 7(b) above,
counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 7 hereof (whether
or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation,
proceeding or claim 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 at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such
settlement.
(e) If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from
the offering of the Notes pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 Company on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to
be in the same respective proportions as the total net proceeds
from the offering of the Notes pursuant to this Agreement (before
deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as
set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Notes as set forth on such
cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes underwritten
by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the principal amount of
Notes set forth opposite their respective names in Schedule A
hereto (after giving effect to Section 9, if applicable) and not
joint.
8. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, (a) any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, or
(b) 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 and light-and medium-duty truck
financing business of the Trust, the Company, Mitsubishi Motor Sales of
America, Inc., Mitsubishi Motors Corporation or MMCA which, in the judgment
of the Representative, materially impairs the investment quality of each
Class of the 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 the Notes; (ii) if there has occurred any downgrading in the rating of
the debt securities of the Company by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of
Rule 436(g) under the 1933 Act), or any public announcement that such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a prospective change in international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable to market the Notes or to
enforce contracts for the sale of the Notes; (iv) if trading in any
securities of the Company, MMCA or Mitsubishi Motor Sales of America, Inc.
has been suspended or materially limited by the Commission, or if trading
generally on either the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or
by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority; or (v) if a banking moratorium
has been declared by federal, New York or California authorities.
9. 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 such Closing Date, the Representative may make
arrangements satisfactory to the Company for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such
arrangements are made by such 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 such 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 such Closing Date and arrangements satisfactory to the Representative
and the Company 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
Company, except as provided in Section 10. 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.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company 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 Company 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 Sections 8 or 9 or if for any
reason the purchase of the Notes by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of
the Company 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 9 or the occurrence of any event
specified in clause (ii), (iii) or (iv) of Section 8(c), the Company 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.
11. 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 Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, North Tower, World Financial Center,
New York, New York, 10281-1201, Attention: Xxxxxxxx X. Xxxxx, Director
(facsimile number (000) 000-0000), or, if sent to the Company, will be
mailed, delivered or sent by facsimile and confirmed to it at P.O. Box
6038, Cypress, California 90630-5205, 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.
12. 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 Company or by a trust for which the Company 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 Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
13. 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.
14. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all
the Underwriters.
15. 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.
16. 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 Company 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.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one
of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
_________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxx
___________________________
Name: Xxxxxxxx X. Xxxxx
Title: Director
Acting on behalf of itself and as the
Representative of the several
Underwriters.
SCHEDULE A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class B
Underwriter Notes Notes Notes Notes
----------- --------- --------- --------- ---------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $50,000,000 $62,500,000 $80,556,000 $60,462,000
Credit Suisse First Boston Corporation 50,000,000 62,500,000 80,500,000 0
Xxxxxx Brothers Inc. 50,000,000 62,500,000 80,500,000 0
X.X. Xxxxxx Securities Inc.
----------
50,000,000 62,500,000 80,500,000 0
---------- ---------- ---------- --
Total $200,000,000 $250,000,000 $322,056,000 $60,462,000
============ ============ ============ ===========
