PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of November [ ], 2000 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Agreement"), by and between MITSUBISHI MOTORS CREDIT OF AMERICA, INC., a
Delaware corporation (the "Seller"), having its principal executive office at
0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, and MMCA AUTO RECEIVABLES
TRUST, a Delaware business trust (the "Purchaser"), having its principal
executive office at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000.
WHEREAS, in the regular course of its business, the Seller purchases
certain motor vehicle retail installment sale contracts secured by new and used
automobiles and sports-utility vehicles from motor vehicle dealers; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms pursuant
to which the Initial Receivables (such capitalized term and the other
capitalized terms used herein have the meanings assigned thereto pursuant to
Article I hereof) and certain additional property related thereto are to be
sold by the Seller to the Purchaser on the Closing Date and the Subsequent
Receivables and certain additional property related thereto are to be sold by
the Seller to the Purchaser from time to time during the Pre-Funding Period,
which Receivables and other property related thereto will be sold by the
Purchaser, pursuant to the Sale and Servicing Agreement, to the MMCA Auto Owner
Trust 2000-2 to be created pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in,
or incorporated by reference into, the Sale and Servicing Agreement or, if not
defined therein, in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined):
"Agreement" shall have the meaning specified in the preamble hereto.
"Assignment" shall mean, for purposes of this Agreement, the First-Tier
Initial Assignment or any First-Tier Subsequent Assignment, as the context may
require.
"Closing" shall have the meaning specified in Section 2.3.
"Closing Date" shall mean November [ ], 2000.
"Cutoff Date" shall mean the Initial Cutoff Date or any Subsequent Cutoff
Date, as the context may require.
["Eligible Receivable" shall mean, each Initial Receivable as to which the
representations and warranties of the Seller in Section 3.1(b) shall be true
and correct in all material respects as of the Initial Cutoff Date, and (ii)
each Subsequent Receivable as to which the representations and warranties of
the Seller in Section 3.1(b) shall be true and correct in all material respects
as of the applicable Subsequent Cutoff Date.]
"First-Tier Initial Assignment" shall mean the document of assignment in
substantially the form attached to this Agreement as Exhibit A-1.
"First-Tier Subsequent Assignment" shall mean any document of assignment
in substantially the form attached to this Agreement as Exhibit A-2.
"Indenture" shall mean the Indenture, dated as of November [ ], 2000,
between the Trust and Bank of Tokyo - Mitsubishi Trust Company, a New York
banking corporation, as Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Initial Cutoff Date" shall mean November [ ], 2000.
"Initial Receivable" shall mean, for purposes of this Agreement, each
motor vehicle retail installment sale contract described in the Schedule of
Initial Receivables attached hereto as Exhibit B and all rights and obligations
thereunder and any amendments, modifications or supplements to such motor
vehicle retail installment sale contract.
"Initial Receivables Purchase Price" shall mean $[ ].
"Officer's Certificate" shall mean, for purposes of this Agreement, a
certificate signed by the chairman, the president, any executive vice
president, vice president or the treasurer of the Seller, and delivered to the
Purchaser.
"Placement Agency Agreement" shall mean the Placement Agency Agreement,
dated [ ], by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
as placement agent, and the Purchaser, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Prospectus" shall have the meaning assigned to such term in the
Underwriting Agreement.
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"Purchaser" shall mean MMCA Auto Receivables Trust, a Delaware business
trust, and its successors and assigns.
"Receivable" shall mean, for purposes of this Agreement, any Initial
Receivable or Subsequent Receivable, as the context may require.
"Relevant UCC" shall mean the Uniform Commercial Code, as in effect from
time to time in the relevant jurisdictions.
"Repurchase Event" shall have the meaning specified in Section 6.2.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of November [ ], 2000, among Mitsubishi Motors Credit of
America, Inc., as servicer, the Purchaser, as seller, and the Trust, as
purchaser, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"Schedule of Initial Receivables" shall mean, for purposes of this
Agreement, the list of Initial Receivables (which list may be in the form of
computer tape, microfiche or compact disk) annexed hereto as Exhibit B.
"Schedule of Receivables" shall mean, for purposes of this Agreement, the
Schedule of Initial Receivables or any Schedule of Subsequent Receivables, as
the context may require.
"Schedule of Subsequent Receivables" shall mean, for purposes of this
Agreement, any list of Subsequent Receivables (which list may be in the form of
microfiche or compact disk) attached as Schedule A to the related First-Tier
Subsequent Assignment.
"Seller" shall mean Mitsubishi Motors Credit of America, Inc., a Delaware
corporation, and its successors and assigns.
"Subsequent Cutoff Date", with respect to any Subsequent Receivable, shall
have the meaning specified in the related First-Tier Subsequent Assignment.
"Subsequent Receivable" shall mean, for purposes of this Agreement, each
motor vehicle retail installment sale contract described in a Schedule of
Subsequent Receivables attached as Schedule A to a First-Tier Subsequent
Assignment and all rights and obligations thereunder and any amendments,
modifications or supplements to such motor vehicle retail installment sale
contract.
"Subsequent Receivables Purchase Price" shall have the meaning specified
in Section 2.2(a).
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"Subsequent Transfer Date" shall mean, with respect to any Subsequent
Receivable, the Business Day during the Pre-Funding Period on which the related
First-Tier Subsequent Assignment is executed and delivered by the Seller to the
Purchaser pursuant to Section 4.1(b)(iii)(A).
"Trust" shall mean the MMCA Auto Owner Trust 2000-2, a Delaware business
trust.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of November [ ], 2000, between the Purchaser, as depositor, and
Wilmington Trust Company, as Owner Trustee, as the same may from time to time
be amended, supplemented or otherwise modified and in effect.
"Underwriting Agreement" shall mean, the Underwriting Agreement, dated [
], 2000, by and between Xxxxxxx Xxxxx Barney Inc., as representative of the
several underwriters specified therein, and the Purchaser.
"Yield Supplement Agreement" shall mean the Yield Supplement Agreement to
be entered into by the Seller and the Purchaser on the Closing Date, as the
same may from time to time be amended, supplemented or otherwise modified and
in effect, in substantially the form attached to the Sale and Servicing
Agreement as Exhibit D.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
On the Closing Date and each Subsequent Transfer Date, subject to the
terms and conditions of this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, the
Receivables set forth in the related Schedule of Receivables and the other
property relating thereto (as described below).
(a) Sale of Initial Receivables. On the Closing Date, and simultaneously
with the transactions to be consummated pursuant to the Indenture, the Sale and
Servicing Agreement and the Trust Agreement, the Seller shall, pursuant to the
First-Tier Initial Assignment, sell, transfer, assign and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein), all right,
title and interest of the Seller, whether now owned or hereafter acquired, in,
to and under the following, collectively: (i) the Initial Receivables; (ii)
with respect to Initial Receivables that are Actuarial Receivables, monies due
thereunder on or after the Initial Cutoff Date (including Payaheads) and, with
respect to Initial Receivables that are Simple Interest Receivables, monies
received thereunder on or after the Initial Cutoff Date; (iii) the security
interests in Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and any other interest of the Seller in such Financed Vehicles;
(iv) all rights to
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receive proceeds with respect to the Initial Receivables from claims on any
physical damage, theft, credit life or disability insurance policies covering
the related Financed Vehicles or related Obligors; (v) all rights to receive
proceeds with respect to the Initial Receivables from recourse to Dealers
thereon pursuant to the Dealer Agreements; (vi) all of the Seller's rights to
the Receivable Files that relate to the Initial Receivables; (vii) all payments
and proceeds with respect to the Initial Receivables held by the Seller; (viii)
all property (including the right to receive Liquidation Proceeds and
Recoveries and Financed Vehicles and the proceeds thereof acquired by the
Seller pursuant to the terms of an Initial Receivable that is a Final Payment
Receivable), guarantees and other collateral securing an Initial Receivable
(other than an Initial Receivable purchased by the Servicer or repurchased by
the Seller); (ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under the Initial Receivables in
effect as of the Initial Cutoff Date; and (x) all present and future claims,
demands, causes of action and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing.
It is the intention of the Seller and the Purchaser that the transfer and
assignment of the Initial Receivables and the other property described in
clauses (i) through (x) of this Section 2.1(a) shall constitute a sale of the
Initial Receivables and such other property from the Seller to the Purchaser,
conveying good title thereto free and clear of any liens, and the Initial
Receivables and such other property shall not be part of the Seller's estate in
the event of the filing of a bankruptcy petition by or against the Seller under
any bankruptcy or similar law. However, in the event that the foregoing
transfer and assignment is deemed to be a pledge, the Seller hereby grants to
the Purchaser a first priority security interest in all of the Seller's right
to and interest in the Initial Receivables and other property described in the
preceding paragraph to secure a loan deemed to have been made by the Purchaser
to the Seller in an amount equal to the sum of the initial principal amount of
the Notes plus accrued interest thereon and the Initial Certificate Balance.
(b) Sale of Subsequent Receivables. Subject to satisfaction of the
conditions set forth in Section 4.1(b), the Seller shall, pursuant to each
First-Tier Subsequent Assignment, sell, transfer, assign and otherwise convey
to the Purchaser, without recourse (subject to the obligations herein), all
right, title and interest of the Seller, whether now owned or hereafter
acquired, in, to and under the following, collectively: (i) the Subsequent
Receivables listed on Schedule A to the related First-Tier Subsequent
Assignment; (ii) with respect to the Subsequent Receivables that are Actuarial
Receivables, monies due thereunder on or after the related Subsequent Cutoff
Date (including Payaheads) and, with respect to Subsequent Receivables that are
Simple Interest Receivables, monies received thereunder on or after the related
Subsequent Cutoff Date; (iii) the security interests in Financed Vehicles
granted by Obligors
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pursuant to such Subsequent Receivables and any other interest of the Seller in
such Financed Vehicles; (iv) all rights to receive proceeds with respect to
such Subsequent Receivables from claims on any physical damage, theft, credit
life or disability insurance policies covering the related Financed Vehicles or
related Obligors; (v) all rights to receive proceeds with respect to such
Subsequent Receivables from recourse to Dealers thereon pursuant to the related
Dealer Agreements; (vi) all of the Seller's rights to the Receivable Files that
relate to such Subsequent Receivables; (vii) all payments and proceeds with
respect to such Subsequent Receivables held by the Seller; (viii) all property
(including the right to receive Liquidation Proceeds and Recoveries and
Financed Vehicles and the proceeds thereof acquired by the Seller pursuant to
the terms of a Subsequent Receivable that is a Final Payment Receivable),
guarantees and other collateral securing a Subsequent Receivable (other than a
Subsequent Receivable purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts relating to insurance policies
and other items financed under such Subsequent Receivables in effect as of the
related Subsequent Cutoff Date; and (x) all present and future claims, demands,
causes of action and choses in action in respect of any or all of the foregoing
and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
It is the intention of the Seller and the Purchaser that each transfer and
assignment of Subsequent Receivables and the other property described in
clauses (i) through (x) of this Section 2.1(b) shall constitute a sale of such
Subsequent Receivables and other property from the Seller to the Purchaser,
conveying good title thereto free and clear of any liens, and such Subsequent
Receivables and other property shall not be part of the Seller's estate in the
event of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy or similar law. However, in the event that the foregoing transfer
and assignment is deemed to be a pledge, the Seller hereby grants to the
Purchaser a first priority security interest in all of the Seller's right to
and interest in such Subsequent Receivables and other property described in the
preceding paragraph to secure a loan deemed to have been made by the Purchaser
to the Seller in an amount equal to the sum of the initial principal amount of
the Notes plus accrued interest thereon and the Initial Certificate Balance.
SECTION 2.2. Payment of the Purchase Price
(a) Initial Receivables Purchase Price. In consideration for the Initial
Receivables, the other property described in Section 2.1(a) and delivery of the
Yield Supplement Agreement, the Purchaser shall, on or prior to the Closing
Date, pay to or upon the order of the Seller the Initial Receivables Purchase
Price. An amount equal to $[ ] of the Initial Receivables Purchase Price shall
be paid to the Seller in cash. The remainder of the Initial Receivables
Purchase Price shall be paid by crediting the Seller with a contribution to the
capital
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of the Purchaser. The portion of the Initial Receivables Purchase Price to be
paid in cash shall be by federal wire transfer (same day) funds.
(b) Subsequent Receivables Purchase Price. In consideration for the
Subsequent Receivables and the other property related thereto described in
Section 2.1(b) to be sold, transferred, assigned and otherwise conveyed to the
Purchaser on the related Subsequent Transfer Date, the Purchaser shall, on or
prior to such Subsequent Transfer Date, pay to or upon the order of the Seller
an amount (the related "Subsequent Receivables Purchase Price") equal to the
aggregate Principal Balance of the Subsequent Receivables as of the related
Subsequent Cutoff Date, plus any premium or minus any discount agreed upon by
the Seller and the Purchaser. Any Subsequent Receivables Purchase Price shall
be payable as follows: (i) cash in the amount released to the Purchaser from
the Pre-Funding Account pursuant to Section 4.8(a) of the Sale and Servicing
Agreement shall be paid to or upon the order of the Seller on the related
Subsequent Transfer Date by federal wire transfer (same day funds) and the
balance paid in cash as and when amounts are released to, or otherwise realized
by, the Purchaser from the Reserve Account and the Negative Carry Account in
accordance with the Sale and Servicing Agreement; or (ii) as otherwise agreed
by the Seller and the Purchaser.
SECTION 2.3. The Closing. The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York 10036-6522 on the
Closing Date, simultaneously with the closings under: (a) the Sale and
Servicing Agreement, pursuant to which the Purchaser will assign all of its
right, title and interest in, to and under the Initial Receivables, the Yield
Supplement Agreement and other property described in Section 2.1(a) to the
Trust in exchange for the Notes and the Certificates; (b) the Indenture,
pursuant to which the Trust will issue the Notes and pledge all of its right,
title and interest in, to and under the Trust Property to secure the Notes; (c)
the Trust Agreement, pursuant to which the Trust will issue the Certificates;
and (d) the Underwriting Agreement and the Placement Agency Agreement, pursuant
to which the Purchaser will sell the Notes to the Persons named therein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date hereof,
the Closing Date and each Subsequent Transfer Date:
(a) Organization, etc. The Purchaser has been duly established and is
validly existing as a business trust in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and has, the power,
authority, and legal right to acquire and own the Receivables, and has the
power and authority to execute and deliver this Agreement and to carry out its
terms.
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(b) Due Qualification. The Purchaser is duly qualified to do business as a
foreign business trust in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications.
(c) Due Authorization and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and is the valid, binding
and enforceable obligation of the Purchaser except as the same may be limited
by insolvency, bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general equity principles.
(d) No Violation. The execution, delivery and performance by the Purchaser
of this Agreement and the consummation of the transactions contemplated hereby
and the fulfillment of the terms hereof will not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, its Certificate of Trust or
its amended and restated trust agreement, or conflict with, or breach any of
the terms or provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any indenture, agreement, mortgage, deed of
trust or other instrument to which the Purchaser is a party or by which the
Purchaser is bound or to which any of its properties are subject, or result in
the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument (other than this Agreement), or violate any law, order, rule, or
regulation, applicable to the Purchaser or its properties, of any federal or
state regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Purchaser or any of its
properties.
(e) No Proceedings. No proceedings or investigations are pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject, and, to the best knowledge of the Purchaser, no such proceedings or
investigations are threatened or contemplated by governmental authorities or
threatened by others, other than such proceedings or investigations which will
not have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of the
Purchaser and which do not (i) assert the invalidity of this Agreement, (ii)
seek to prevent the consummation of any of the transactions contemplated by
this Agreement or (iii) seek any determination or ruling that might materially
and adversely affect the performance by the Purchaser of its obligations under,
or the validity or enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Purchaser as of the
date hereof, the Closing Date and each Subsequent Transfer Date:
(i) Organization, etc. The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with
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the power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently
conducted, and is duly qualified to transact business and is in good
standing in each jurisdiction in the United States of America in which the
conduct of its business or the ownership or lease of its property requires
such qualification.
(ii) Power and Authority; Binding Obligation. The Seller has full
power and authority to sell and assign the property sold and assigned to
the Purchaser hereunder on the Closing Date and the property to be sold
and assigned to the Purchaser hereunder on each Subsequent Transfer Date
and has duly authorized such sales and assignments to the Purchaser by all
necessary corporate action. This Agreement and the First-Tier Initial
Assignment has been, and each First-Tier Subsequent Assignment has been or
will be on or before the related Subsequent Transfer Date, duly
authorized, executed and delivered by the Seller, and in each case shall
constitute the legal, valid, binding and enforceable obligation of the
Seller except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(iii) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default
under, the certificate of incorporation or bylaws of the Seller, or
conflict with, or breach any of the terms or provisions of, or constitute
(with or without notice or lapse of time or both) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Seller is a party or by which the Seller is bound or any of its
properties are subject, or result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement), or violate any law, order, rule or regulation,
applicable to the Seller or its properties, of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(iv) No Proceedings. No proceedings or investigations are pending to
which the Seller is a party or of which any property of the Seller is the
subject, and, to the best knowledge of the Seller, no such proceedings or
investigations are threatened or contemplated by governmental authorities
or threatened by others, other than such proceedings or investigations
which will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual
basis) of the Seller and do not (i) assert the invalidity of this
Agreement, (ii) seek to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seek any
determinations or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
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(v) Florida Securities and Investor Protection Act. In connection
with the offering of the Notes in the State of Florida, the Seller hereby
certifies that it has complied with all provisions of Section 517.075 of
the Florida Securities and Investor Protection Act.
(b) The Seller makes the following representations and warranties as to
the Receivables on which the Purchaser relies in accepting the Receivables.
Such representations and warranties speak as of the Closing Date in the case of
the Initial Receivables and as of the applicable Subsequent Transfer Date in
the case of the Subsequent Receivables except to the extent otherwise provided
in the following representations and warranties, but shall survive the sale,
transfer, and assignment of the Receivables to the Purchaser hereunder and the
subsequent assignment and transfer of the Receivables pursuant to the Sale and
Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable (a) shall have
been originated (x) in the United States of America by a Dealer for the
consumer or commercial sale of a Financed Vehicle in the ordinary course
of such Dealer's business or (y) by the Seller in connection with the
refinancing by the Seller of a motor vehicle retail installment sale
contract of the type described in subclause (x) above, shall have been
fully and properly executed by the parties thereto, shall have been
purchased by the Seller from such Dealer under an existing Dealer
Agreement with the Seller (unless such Receivable was originated by the
Seller in connection with a refinancing), and shall have been validly
assigned by such Dealer to the Seller in accordance with its terms (unless
such Receivable was originated by the Seller in connection with a
refinancing), (b) shall have created or shall create a valid, binding,
subsisting and enforceable first priority security interest in favor of
the Seller on the related Financed Vehicle, which security interest has
been validly assigned by shall assignable by the Seller to the Purchaser,
(c) shall contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the security, (d) in
the case of Standard Receivables, shall provide for monthly payments that
fully amortize the Amount Financed by maturity of the Receivable and yield
interest at the APR, (e) in the case of Final Payment Receivables, shall
provide for a series of fixed level monthly payments and a larger payment
due after such level monthly payments that fully amortize the Amount
Financed by maturity and yield interest at the APR, (f) shall provide for,
in the event that such contract is prepaid, a prepayment that fully pays
the Principal Balance and all accrued and unpaid interest thereon, (g) is
a retail installment sale contract, (h) is secured by a new or used
automobile or sports-utility vehicle, and (i) is an Actuarial Receivable
or a Simple Interest Receivable (and may also be a Final Payment
Receivable).
(ii) Schedule of Receivables. The information set forth in the
related Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the related Cutoff Date and no
selection procedures believed to be adverse to the Noteholders or the
Certificateholders shall have been utilized in selecting the Receivables
from those receivables which meet the criteria contained herein. The
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compact disk or other listing regarding the Receivables made available to
the Purchaser and its assigns (which compact disk or other listing is
required to be delivered as specified herein) is true and correct in all
respects.
(iii) Compliance with Law. Each Receivable and the sale of the
related Financed Vehicle shall have complied, at the time it was
originated or made, and shall comply on the Closing Date (with respect to
each Initial Receivable) or the related Subsequent Transfer Date (with
respect to each Subsequent Receivable) in all material respects with all
requirements of applicable Federal, state, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Credit Billing Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations B and Z, the
Soldiers' and Sailors' Civil Relief Act of 1940, the Texas Consumer Credit
Code, and State adaptations of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
(v) No Government Obligor. None of the Receivables is due from the
United States of America or any state or from any agency, department or
instrumentality of the United States of America or any state.
(vi) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment, and transfer thereof, each Receivable shall be secured
by a valid, subsisting and enforceable perfected first priority security
interest in the related Financed Vehicle in favor of the Seller as secured
party and, at such time as enforcement of such security interest is
sought, there shall exist a valid, subsisting and enforceable first
priority perfected security interest in such Financed Vehicle for the
benefit of the Seller and the Purchaser, respectively (subject to any
statutory or other lien arising by operation of law after the Closing Date
(with respect to each Initial Receivable) or the related Subsequent
Transfer Date (with respect to each Subsequent Receivable) which is prior
to such security interest).
(vii) Receivables in Force. No Receivable shall have been satisfied,
subordinated, or rescinded, nor shall any Financed Vehicle have been
released from the Lien granted by the related Receivable in whole or in
part, which security interest shall be assignable by the Seller to the
Purchaser.
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(viii) No Waiver. No provision of a Receivable shall have been waived
in such a manner that such Receivable fails to meet all of the
representations and warranties made by the Seller in this Section 3.2(b)
with respect thereto.
(ix) No Defenses. No right of rescission, setoff, counterclaim, or
defense shall have been asserted or threatened with respect to any
Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or
claims shall have been filed for work, labor, or materials relating to a
Financed Vehicle that shall be liens prior to, or equal or coordinate
with, the security interest in the Financed Vehicle granted by the
Receivable.
(xi) No Default; Repossession. Except for payment defaults continuing
for a period of not more than thirty (30) days or payment defaults of 10%
or less of a Scheduled Payment, in each case as of the related Cutoff
Date, or the failure of the Obligor to maintain satisfactory physical
damage insurance covering the Financed Vehicle, no default, breach,
violation, or event permitting acceleration under the terms of any
Receivable shall have occurred; no continuing condition that with notice
or the lapse of time or both would constitute a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable shall have arisen; the Seller shall not have waived any of the
foregoing; and no Financed Vehicle shall have been repossessed as of the
related Cutoff Date.
(xii) Insurance. Each Contract shall require the related Obligor to
maintain physical damage insurance (which insurance shall not be force
placed insurance) covering the Financed Vehicle, in the amount determined
by the Seller in accordance with its customary procedures.
(xiii) Title. It is the intention of the Seller that each transfer
and assignment of the Receivables herein contemplated constitute a sale of
such Receivables from the Seller to the Purchaser and that the beneficial
interest in, and title to, such Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person other than
the Purchaser. Immediately prior to each transfer and assignment of the
Receivables herein contemplated, the Seller had good and marketable title
to such Receivables free and clear of all Liens, encumbrances, security
interests, and rights of others and, immediately upon the transfer
thereof, the Purchaser shall have good and marketable title to such
Receivables, free and clear of all Liens, encumbrances, security
interests, and rights of others; and the transfer has been perfected by
all necessary action under the Relevant UCC.
(xiv) Valid Assignment. No Receivable shall have been originated in,
or shall be subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable under this Agreement shall be
unlawful, void, or voidable.
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The Seller has not entered into any agreement with any account debtor that
prohibits, restricts or conditions the assignment of any portion of the
Receivables.
(xv) All Filings Made. All filings (including, without limitation,
filings under the Relevant UCC) necessary in any jurisdiction to give the
Purchaser a first priority perfected security interest in the Receivables
shall be made within ten (10) days of the Closing Date (with respect to
the Initial Receivables) or ten (10) days of the related Subsequent
Transfer Date (with respect to the Subsequent Receivables).
(xvi) Chattel Paper. Each Receivable constitutes "chattel paper" as
defined in the Relevant UCC.
(xvii) One Original. There shall be only one original executed copy
of each Receivable in existence.
(xviii) Principal Balance. Each Receivable had an original principal
balance (net of unearned precomputed finance charges) of not more than
$60,000, and a remaining Principal Balance as of the related Cutoff Date
of not less than $100.
(xix) No Bankrupt Obligors. No Receivable was due from an Obligor
who, as of the related Cutoff Date, was the subject of a proceeding under
the Bankruptcy Code of the United States or was bankrupt.
(xx) New and Used Vehicles. Approximately [ %] of the Initial Pool
Balance, constituting approximately [ %] of the total number of the
Initial Receivables, relate to new automobiles and sports-utility
vehicles, substantially all of which were manufactured or distributed by
Mitsubishi Motors. Approximately [ %] of the Initial Pool Balance,
constituting approximately [ %] of the total number of Initial
Receivables, relate to used automobiles and sports-utility vehicle,
substantially all of which were manufactured or distributed by Mitsubishi
Motors. Approximately [ %] of the Initial Pool Balance, constituting
approximately [ %] of the total number of Initial Receivables, relate to
program automobiles and sports-utility vehicles, substantially all of
which were manufactured or distributed by Mitsubishi Motors. Approximately
[ %] of the Initial Pool Balance, constituting approximately [ %] of the
total number of Initial Receivables, relate to used automobiles and
sports-utility vehicles.
(xxi) Origination. Each Receivable shall have an origination date
during or after May 1996.
(xxii) Maturity of Receivables. Each Receivable shall have, as of the
related Cutoff Date, not more than sixty (60) remaining Scheduled Payments
due.
(xxiii) Weighted Average Number of Payments. As of the Initial Cutoff
Date, the weighted average number of payments remaining until the maturity
of the Initial
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Receivables shall be not more than [ ] Scheduled Payments. As of the
related Subsequent Cutoff Date, the weighted average number of Scheduled
Payments remaining until the maturity of any Subsequent Receivables
transferred to the Trust on the same Subsequent Transfer Date shall be not
more than [60] Scheduled Payments.
(xxiv) Annual Percentage Rate. Each Receivable shall have an APR of
at least 0% and not more than 30%.
(xxv) Scheduled Payments. No Receivable shall have a payment of which
more than 10% of such payment is more than thirty (30) days overdue as of
the related Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files shall be
kept at one or more of the locations listed in Schedule A hereto.
(xxvii) Capped Receivables and Simple Interest Receivables. Except to
the extent that there has been no material adverse effect on Noteholders
or Certificateholders, each Capped Receivable has been treated
consistently by the Seller as a Simple Interest Receivable and payments
with respect to each Simple Interest Receivable have been allocated
consistently in accordance with the Simple Interest Method.
(xxviii) Agreement. The representations and warranties of the Seller
in Section 6.1 are true and correct.
(xxix) Other Data. The tabular data and the numerical data relating
to the characteristics of the Receivables contained in the Prospectus are
true and correct in all material respects.
(xxx) Last Scheduled Payments. The aggregate principal balance of the
Last Scheduled Payments of Final Payment Receivables that are Initial
Receivables, as a percentage of the Initial Pool Balance as of the Initial
Cutoff Date, shall be not greater than [ ]%. The aggregate principal
balance of the Last Scheduled Payments of Final Payment Receivables that
are Subsequent Receivables sold to the Purchaser on a Subsequent Transfer
Date, as of the related Subsequent Cutoff Date, as a percentage of the
aggregate principal balance of all of such Subsequent Receivables as of
such related Subsequent Cutoff Date, shall be not greater than [ ]%.
(xxxi) Receivable Yield Supplement Amounts. An amount equal to the
sum of all projected Yield Supplement Amounts for all future Payment Dates
with respect to each Deferred Payment Receivable, assuming that no
prepayments are made on the Deferred Payment Receivable, has been
deposited to the Yield Supplement Account on or prior to the Closing Date
or the related Subsequent Transfer Date, as applicable.
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(xxxii) Prepaid Receivables. No Receivable shall have been pre-paid
by more than six monthly payments as of the related Cutoff Date.
(xxxiii) Limited Credit Experience. The aggregate principal balance
of the Subsequent Receivables sold to the Purchaser on a Subsequent
Transfer Date on which the Obligor has limited credit experience, as of
the related Subsequent Cutoff Date, as a percentage of the aggregate
principal balance of all of such Subsequent Receivables as of such related
Subsequent Cutoff Date, shall be not greater than [ ]%.
(xxxiv) Deferred Payment Receivables. As of the Initial Cutoff Date
$[ ] total Principal Balance of Deferred Payment Receivables included in
the Initial Receivables had a first payment that, as of the date of
inception of the Receivable, was deferred for _____ days.
(xxxv) Modified Receivables. The APR of any Modified Receivable is
equal to the APR of the related Deferred Payment Receivable. The date on
which the final Scheduled Payment is due on a Modified Receivable is not
different than the date set forth in the related Contract as the date on
which the final Scheduled Payment under such Receivable is due. No
Deferred Payment Receivable became a Modified Receivable after [_________,
2001.]
ARTICLE IV
CONDITIONS
SECTION 4.1. Conditions to Obligations of the Purchaser.
(a) Initial Receivables. The obligation of the Purchaser to purchase the
Initial Receivables is subject to the satisfaction of the following conditions:
(i) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Seller shall
have performed all obligations to be performed by it hereunder on or prior
to the Closing Date.
(ii) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the Closing Date, indicate in its computer files that the
Initial Receivables have been sold to the Purchaser pursuant to this
Agreement and the First-Tier Initial Assignment and deliver to the
Purchaser the Schedule of Initial Receivables certified by an officer of
the Seller to be true, correct and complete.
(iii) Documents to be delivered by the Seller at the Closing.
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(A) The First-Tier Initial Assignment. At the Closing, the
Seller will execute and deliver the First-Tier Initial Assignment in
substantially the form of Exhibit A-1 hereto.
(B) The Yield Supplement Agreement. At the Closing, the Seller
will execute and deliver the Yield Supplement Agreement.
(C) Evidence of UCC Filing. Within ten (10) days of the Closing
Date, the Seller shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or debtor, and
naming the Purchaser, as purchaser or secured party, naming the
Initial Receivables and the other property conveyed under Section
2.1(a) as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of the Initial Receivables
to the Purchaser. The Seller shall deliver a file- stamped copy, or
other evidence satisfactory to the Purchaser of such filing, to the
Purchaser within ten (10) days of the Closing Date.
(D) Other Documents. Such other documents as the Purchaser may
reasonably request.
(iv) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement, the Indenture, the Trust Agreement and the
Underwriting Agreement shall be consummated on the Closing Date.
(b) Subsequent Receivables. The obligation of the Purchaser to purchase
the Subsequent Receivables to be conveyed to the Purchaser on each Subsequent
Transfer Date is subject to the satisfaction of the following conditions:
(i) Representations and Warranties True. The representations and
warranties of the Seller under Section 3.2(a) with respect to the Seller
and Section 3.2(b) with respect to such Subsequent Receivables shall be
true and correct as of the date as of which such representations and
warranties are made, and the Seller shall have performed all obligations
to be performed by it hereunder on or prior to the related Subsequent
Transfer Date.
(ii) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the related Subsequent Transfer Date, indicate in its computer
files that such Subsequent Receivables have been sold to the Purchaser
pursuant to this Agreement and the related First-Tier Subsequent
Assignment and deliver to the Purchaser the related First-Tier Subsequent
Assignment, including the related Schedule of Subsequent Receivables
certified by an officer of the Seller to be true, correct and complete.
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(iii) Documents to be delivered by the Seller on the related
Subsequent Transfer Date.
(A) The First-Tier Subsequent Assignment. On the related
Subsequent Transfer Date, the Seller will execute and deliver the
related First-Tier Subsequent Assignment in substantially the form of
Exhibit A-2 hereto.
(B) Evidence of UCC Filing. Within ten (10) days of the related
Subsequent Transfer Date, the Seller shall record and file, at its
own expense, a UCC-1 financing statement in each jurisdiction in
which required by applicable law, executed by the Seller, as seller
or debtor, and naming the Purchaser, as purchaser or secured party,
naming such Subsequent Receivables and the other property conveyed
under Section 2.1(b) as collateral, meeting the requirements of the
laws of each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such
Subsequent Receivables to the Purchaser. The Seller shall deliver a
file-stamped copy, or other evidence satisfactory to the Purchaser of
such filing, to the Purchaser within ten (10) days of the related
Subsequent Transfer Date.
(C) Officer's Certificate. The Seller shall have delivered to
the Purchaser an Officer's Certificate confirming the satisfaction of
each condition precedent specified in this Section 4.1(b)
(substantially in the form attached as Annex A to the form of
First-Tier Subsequent Assignment attached hereto as Exhibit A-2).
(D) Other Documents. Such other documents as the Purchaser may
reasonably request.
(iv) As of the related Subsequent Transfer Date: (A) the Seller was
not insolvent and will not become insolvent as a result of the transfer of
such Subsequent Receivables on the related Subsequent Transfer Date, (B)
the Seller did not intend to incur or believe that it would incur debts
that would be beyond the Seller's ability to pay as such debts matured,
(C) such transfer was not made by the Seller with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller did not
constitute unreasonably small capital to carry out its business as
conducted.
(v) No selection procedures believed by the Seller to be adverse to
the interests of the Purchaser, the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the Subsequent
Receivables.
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(vi) The addition of the Subsequent Receivables will not result in a
material adverse tax consequence to the Purchaser, the Trust, the
Noteholders or the Certificateholders.
(vii) All the conditions to the transfer of the Subsequent
Receivables from the Purchaser to the Trust specified in Section 2.1(d) of
the Sale and Servicing Agreement shall have been satisfied.
SECTION 4.2. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Initial Receivables to the Purchaser on the Closing Date and
any Subsequent Receivables to the Purchaser on the related Subsequent Transfer
Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct on the Closing
Date or the related Subsequent Transfer Date, as applicable, with the same
effect as if then made, and the Purchaser shall have performed all obligations
to be performed by it hereunder on or prior to the Closing Date or the related
Subsequent Transfer Date, as applicable.
(b) Receivables Purchase Prices. (i) On or prior to the Closing Date, the
Purchaser shall deliver to the Seller the Receivables Purchase Price, as
provided in Section 2.2(a); and (ii) on or prior to each Subsequent Transfer
Date, the Purchaser shall have delivered to the Seller the related Subsequent
Receivables Purchase Price, as provided in Section 2.2(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, that to the
extent that any provision of this Article V conflicts with any provision of the
Sale and Servicing Agreement, the Sale and Servicing Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements, all in such manner and
in such places as may be required by law fully to preserve, maintain, and
protect the interest of the Purchaser under this Agreement in, to and under the
Receivables and the other property conveyed hereunder and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Purchaser
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) The Seller shall not change its name, identity, or corporate structure
in any manner that would, could, or might make any financing statement or
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continuation statement filed by the Seller in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) of the
Relevant UCC, unless it shall have given the Purchaser at least sixty (60)
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller shall give the Purchaser at least sixty (60) days' prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the Relevant UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly
file any such amendment, continuation statement or new financing statement. The
Seller shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Seller shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit the reader thereof to know at any
time the status of such Receivable, including payments and recoveries made and
payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so that, from and after
the time of sale hereunder of the Receivables to the Purchaser, the Seller's
master computer records (including any back-up archives) that refer to a
Receivable shall indicate clearly the interest of the Purchaser in such
Receivable and that such Receivable is owned by the Purchaser (or, upon sale of
the Receivables to the Trust, by the Trust). Indication of the Purchaser's
ownership of a Receivable shall be deleted from or modified on the Seller's
computer systems when, and only when, the Receivable shall have been paid in
full or repurchased.
(f) If at any time the Seller shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any automobile or
sports-utility vehicle receivables (other than the Receivables) to any
prospective purchaser, lender, or other transferee, the Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, compact
disks, records, or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is owned by the
Purchaser or its assignee unless such Receivable has been paid in full or
repurchased.
(g) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit, and make copies of and
abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the Purchaser, within ten
(10) Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by the Purchaser, together with a reconciliation of such
list to the Schedule of Receivables.
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SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer any Receivable
to any other Person, or grant, create, incur, assume or suffer to exist any
Lien on any interest therein, and the Seller shall defend the right, title, and
interest of the Purchaser in, to and under the Receivables against all claims
of third parties claiming through or under the Seller; provided, however, that
the Seller's obligations under this Section 5.2 shall terminate upon the
termination of the Trust pursuant to the Trust Agreement.
SECTION 5.3. Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in, to and under the
Receivables.
SECTION 5.4. Indemnification.
(a) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Receivable to be
originated in compliance with all requirements of law and for any breach of any
of the Seller's representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership, or operation
by the Seller or any Affiliate thereof of a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all taxes, except for taxes on the net income of the
Purchaser, that may at any time be asserted against the Purchaser with respect
to the transactions contemplated herein and in the Yield Supplement Agreement,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes and costs and expenses
in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims and
liabilities to the extent that such cost, expense, loss, damage, claim or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the performance
of its duties under this Agreement or the Yield Supplement Agreement, as the
case may be, or by reason of reckless disregard of the Seller's obligations and
duties under the Agreement or the Yield Supplement Agreement, as the case may
be.
(e) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, damages, claims and liabilities
arising out of or incurred in connection with the acceptance or performance of
the Seller's trusts and duties
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as Servicer under the Sale and Servicing Agreement, except to the extent that
such cost, expense, loss, damage, claim or liability shall be due to the
willful misfeasance, bad faith, or negligence (except for errors in judgment)
of the Purchaser.
These indemnity obligations shall be in addition to any obligation that
the Seller may otherwise have.
SECTION 5.5. Sale. The Seller agrees to treat this conveyance for all
purposes (including without limitation tax and financial accounting purposes)
as an absolute transfer on all relevant books, records, tax returns, financial
statements and other applicable documents.
SECTION 5.6. Transfer of Subsequent Receivables. The Seller agrees to
transfer to the Purchaser, pursuant to Section 2.1(b), Subsequent Receivables
with an aggregate Adjusted Principal Balance as of the related Cutoff Dates
approximately equal to $___________, subject only to the availability of such
Subsequent Receivables.
(b) Subject to Section 2.1(b), the Seller agrees to sell to the Purchaser
on each Payment Date during the Pre-Funding and Reinvestment Period, and the
Purchaser agrees to purchase from the Seller during such period, Eligible
Receivables having an aggregate Principal Balance equal to the Required
Reinvestment Amount for the preceding Collection Period, subject only to the
availability of such Receivables.
(c) On or prior to each Determination Date during the Pre-Funding and
Reinvestment Period, the Purchaser, or the Servicer on its behalf, shall inform
the Seller of a Negative Carry Account Shortfall with respect to the following
Payment Date. The Seller shall have the option, but not the obligation, to pay
to the Purchaser an amount equal to such Negative Carry Account Shortfall by
depositing an amount equal to the Negative Carry Account Shortfall in the
Pre-Funding and Reinvestment Account on or prior to the second Business Day
preceding the Payment Date following the Determination Date.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 6.2. Repurchase Events. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders, that the occurrence
of a breach of any of the Seller's representations and warranties contained in
Section 3.2(b) shall constitute an event obligating the
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Seller to repurchase Receivables hereunder (each, a "Repurchase Event") at a
price equal to the Purchase Amount from the Purchaser or from the Trust.
Subject to Section 5.4(a), the repurchase obligation of the Seller shall
constitute the sole remedy to the Purchaser, the Indenture Trustee, the Owner
Trustee, the Noteholders and the Certificateholders against the Seller with
respect to any Repurchase Event.
SECTION 6.3. Purchaser's Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to Section 6.2 of
this Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in, to
and under such Receivables, and all security and documents relating thereto.
SECTION 6.4. Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement, sell
the Initial Receivables to the Trust on the Closing Date and the Subsequent
Receivables to the Trust on the related Subsequent Transfer Dates and assign
its rights under this Agreement and the Yield Supplement Agreement to the Owner
Trustee for the benefit of the Noteholders and the Certificateholders, and that
the representations and warranties contained in this Agreement and the rights
of the Purchaser under this Agreement, including under Sections 6.2 and 6.3,
are intended to benefit the Trust, the Noteholders and the Certificateholders.
The Seller hereby consents to such sale and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the Receivables and
its rights under this Agreement and the Yield Supplement Agreement to the
Indenture Trustee for the benefit of the Noteholders, and the representations
and warranties contained in this Agreement and the rights of the Purchaser
under this Agreement, including under Sections 6.2 and 6.3, are intended to
benefit the Noteholders. The Seller hereby consents to such pledge.
SECTION 6.5. Amendment. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment that materially adversely
affects the rights of the Noteholders or the Certificateholders under the
Indenture, Sale and Servicing Agreement or Trust Agreement shall be consented
to by the Holders of Notes evidencing not less than 51% of the then Outstanding
Notes and the Holders of Certificates evidencing not less than 51% of the
Certificate Balance.
SECTION 6.6. Accountants' Letters.
(a) Ernst & Young LLP will perform certain procedures regarding the
characteristics of the Receivables described in the Schedule of Initial
Receivables set forth as Exhibit B hereto and will compare those
characteristics to the information with respect to the Initial Receivables
contained in the Prospectus.
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(b) Seller will cooperate with the Purchaser and Ernst & Young LLP in
making available all information and taking all steps reasonably necessary to
permit such accountants to complete the procedures set forth in Section 6.6(a)
above and to deliver the letters required of them under the Underwriting
Agreement.
(c) Ernst & Young LLP will deliver to the Purchaser a letter, dated the
date of the Prospectus, in the form previously agreed to by the Seller and the
Purchaser, with respect to the financial and statistical information contained
in the Prospectus under the captions "Delinquency Experience," "Net Credit Loss
and Repossession Experience" and "Contracts Providing for Balloon Payments:
Loss Experience on Returned Vehicles" and with respect to such other
information as may be agreed in the forms of such letters.
SECTION 6.7. Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or any Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
SECTION 6.8. Notices. All communications and notices pursuant hereto to
either party shall be in writing or by confirmed facsimile or telecopy and
addressed or delivered to it at its address shown in the opening portion of
this Agreement or at such other address as may be designated by it by notice to
the other party and, if mailed or sent by telecopy or facsimile, shall be
deemed given when mailed or when electronic confirmation of the telecopy or
facsimile is received.
SECTION 6.9. Costs and Expenses. The Seller will pay all expenses incident
to the performance of its obligations under this Agreement and the Seller
agrees to pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in, to and
under the Receivables and the enforcement of any obligation of the Seller
hereunder.
SECTION 6.10. Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by the
Seller and the Purchaser set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the Closing.
SECTION 6.11. Confidential Information. The Purchaser agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Receivables, the Sale and Servicing Agreement or as required by law.
SECTION 6.12. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation
23
of any provision of this Agreement. References in this Agreement to Section
names or numbers are to such Sections of this Agreement.
SECTION 6.13. Governing Law. This Agreement and each Assignment shall be
governed by, and construed in accordance with, the internal laws of the State
of New York.
SECTION 6.14. Agreements of Purchaser.
(a) The Purchaser will not commingle any of its assets with those of the
Seller or the ultimate parent of the Purchaser.
(b) The Purchaser will maintain separate corporate records and books of
account from those of the Seller or the ultimate parent of the Purchaser.
(c) The Purchaser will conduct its business from an office separate from
the Seller or the ultimate parent of the Purchaser.
SECTION 6.15. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
24
IN WITNESS WHEREOF, the parties hereby have caused this Purchase Agreement
to be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., as Seller
By:
-------------------------------------
Name:
Title:
MMCA AUTO RECEIVABLES TRUST,
as Purchaser
By:
-------------------------------------
Name:
Title:
EXHIBIT A-1
FORM OF FIRST-TIER INITIAL ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as of
__________, between the undersigned and MMCA AUTO RECEIVABLES TRUST (the
"Purchaser") (as amended, supplemented or otherwise modified and in effect from
time to time, the "Purchase Agreement"), the undersigned does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Purchase Agreement), all right, title and
interest of the undersigned, whether now owned or hereafter acquired, in, to
and under the following, collectively: (i) the Initial Receivables; (ii) with
respect to Initial Receivables that are Actuarial Receivables, monies due
thereunder on or after the Initial Cutoff Date (including Payaheads) and, with
respect to Initial Receivables that are Simple Interest Receivables, monies
received thereunder on or after the Initial Cutoff Date; (iii) the security
interests in Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and any other interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to the Initial Receivables
from claims on any physical damage, theft, credit life or disability insurance
policies covering the related Financed Vehicles or related Obligors; (v) all
rights to receive proceeds with respect to the Initial Receivables from
recourse to Dealers thereon pursuant to the Dealer Agreements; (vi) all of the
Seller's rights to the Receivable Files that relate to the Initial Receivables;
(vii) all payments and proceeds with respect to the Initial Receivables held by
the Seller; (viii) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof acquired
by the Seller pursuant to the terms of an Initial Receivable that is a Final
Payment Receivable), guarantees and other collateral securing an Initial
Receivable (other than an Initial Receivable purchased by the Servicer or
repurchased by the Seller); (ix) all rebates of premiums and other amounts
relating to insurance policies and other items financed under the Initial
Receivables in effect as of the Initial Cutoff Date; and (x) all present and
future claims, demands, causes of action and choses in action in respect of any
or all of the foregoing and all payments on or under and all proceeds of every
kind and nature whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other Person in connection with
the Initial Receivables, the related Receivable Files, any insurance policies
or any agreement or instrument relating to any of them.
This First-Tier Initial Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
A-1-1
In the event that the foregoing sale, assignment, transfer and conveyance
is deemed to be a pledge, the undersigned hereby grants to the Purchaser a
first priority security interest in all of the undersigned's right to and
interest in the Initial Receivables and other property described in clauses (i)
through (x) above to secure a loan deemed to have been made by the Purchaser to
the undersigned in an amount equal to the sum of the initial principal amount
of the Notes plus accrued interest thereon and the Initial Certificate Balance.
This First-Tier Initial Assignment shall be construed in accordance with
the laws of the State of New York and the obligations of the undersigned under
this First-Tier Initial Assignment shall be determined in accordance with such
laws.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Initial
Assignment to be duly executed as of __________.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By:
-------------------------------------
Name:
Title:
EXHIBIT A-2
FORM OF FIRST-TIER SUBSEQUENT ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as of
[__________], between the undersigned and MMCA AUTO RECEIVABLES TRUST (the
"Purchaser") (as amended, supplemented or otherwise modified and in effect from
time to time, the "Purchase Agreement"), the undersigned does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Purchase Agreement), all right, title and
interest of the undersigned, whether now owned or hereafter acquired, in, to
and under the following, collectively: (i) the Subsequent Receivables set forth
in the Schedule of Subsequent Receivables attached hereto as Schedule A; (ii)
with respect to the Subsequent Receivables that are Actuarial Receivables,
monies due thereunder on or after [________], [______] (the "Subsequent Cutoff
Date") (including Payaheads) and, with respect to Subsequent Receivables that
are Simple Interest Receivables, monies received thereunder on or after the
Subsequent Cutoff Date; (iii) the security interests in Financed Vehicles
granted by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles; (iv) all rights to receive
proceeds with respect to such Subsequent Receivables from claims on any
physical damage, theft, credit life or disability insurance policies covering
the related Financed Vehicles or related Obligors; (v) all rights to receive
proceeds with respect to such Subsequent Receivables from recourse to Dealers
thereon pursuant to Dealer Agreements; (vi) all of the Seller's rights to the
Receivable Files that relate to such Subsequent Receivables; (vii) all payments
and proceeds with respect to such Subsequent Receivables held by the Seller;
(viii) all property (including the right to receive Liquidation Proceeds and
Recoveries and Financed Vehicles and the proceeds thereof acquired by the
Seller pursuant to the terms of a Subsequent Receivable that is a Final Payment
Receivable), guarantees and other collateral securing a Subsequent Receivable
(other than a Subsequent Receivable purchased by the Servicer or repurchased by
the Seller); (ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under such Subsequent Receivables
in effect as of the Subsequent Cutoff Date; and (x) all present and future
claims, demands, causes of action and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other Person in connection with
the Subsequent Receivables, the related Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This First-Tier Subsequent Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the
A-2-1
Purchase Agreement (including the Officer's Certificate of the Seller
accompanying this First-Tier Subsequent Assignment) and is to be governed by
the Purchase Agreement.
The Seller hereby represents that as of the Subsequent Cut-off Date the
aggregate Principal Balance of the Subsequent Receivables conveyed hereby was
$[____________].
In the event that the foregoing sale, assignment, transfer and conveyance
is deemed to be a pledge, the undersigned hereby grants to the Purchaser a
first priority security interest in all of the undersigned's right to and
interest in the Subsequent Receivables and other property described in clauses
(i) through (x) above to secure a loan deemed to have been made by the
Purchaser to the undersigned in an amount equal to the sum of the initial
principal amount of the Notes plus accrued interest thereon and the Initial
Certificate Balance.
This First-Tier Subsequent Assignment shall be construed in accordance
with the laws of the State of New York and the obligations of the undersigned
under this First-Tier Subsequent Assignment shall be determined in accordance
with such laws.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Subsequent
Assignment to be duly executed as of [_________ __, _____].
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By:
-------------------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF SUBSEQUENT RECEIVABLES PROVIDED TO THE
INDENTURE TRUSTEE ON THE SUBSEQUENT CLOSING DATE, WHICH
MAY BE ON COMPUTER TAPE, COMPACT DISK, OR MICROFICHE
A-2-3
ANNEX A
OFFICERS' CERTIFICATE
The undersigned officer of Mitsubishi Motors Credit of America, Inc., a
Delaware corporation (the "Seller"), does hereby certify, pursuant to Section
4.1(b)(iii)(C) of the Purchase Agreement, dated as of [__________] (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Purchase Agreement"), between the Seller and MMCA Auto Receivables Trust, a
Delaware business trust (the "Purchaser"), that all of the conditions precedent
to the transfer to the Purchaser of the Subsequent Receivables listed on
Schedule A to the First-Tier Subsequent Assignment delivered herewith, and the
other property and rights related to such Subsequent Receivables as described
in Section 2.1(b) of the Purchase Agreement, have been satisfied on or prior to
the related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this [______] day of [_______________], [______].
By:
-------------------------------------
Name:
Title:
A-2-4
EXHIBIT B
SCHEDULE OF INITIAL RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPUTER TAPE,
COMPACT DISK, OR MICROFICHE
B-1
SCHEDULE A
Locations of Receivables Files
Corporate Xxxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
National Service Center
00000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
SA-1
