Exhibit 1.1
EXECUTION COPY
$665,966,000
MMCA AUTO OWNER TRUST 2001-2
$146,169,000 3.8975% CLASS A-1 ASSET BACKED NOTES
$94,000,000 FLOATING RATE CLASS A-2 ASSET BACKED NOTES
$229,000,000 FLOATING RATE CLASS A-3 ASSET BACKED NOTES
$150,000,000 FLOATING RATE CLASS A-4 ASSET BACKED NOTES
$46,797,000 5.75% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
June 7, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
as Representative of the several Underwriters
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust (the "Seller"), a
Delaware business trust established pursuant to the Amended and Restated
Trust Agreement, dated as of October 1, 1999 (the "MART Trust Agreement"),
between Mitsubishi Motors Credit of America, Inc. ("MMCA") and Chase
Manhattan Bank USA, N.A., as trustee (the "MART Trustee"), proposes,
subject to the terms and conditions stated herein, to cause MMCA Auto Owner
Trust 2001-2 (the "Trust") to issue and sell to the several underwriters
named in Schedule A hereto (the "Underwriters"), acting severally and not
jointly, for whom Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") is
acting as representative (the "Representative"), $146,169,000 aggregate
principal amount of 3.8975% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $94,000,000 aggregate principal amount of Floating Rate Class A-2
Asset Backed Notes (the "Class A-2 Notes"), $229,000,000 aggregate
principal amount of Floating Rate Class A-3 Asset Backed Notes (the "Class
A-3 Notes"), $150,000,000 aggregate principal amount of Floating Rate Class
A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A
Notes") and $46,797,000 aggregate principal amount of 5.75% Class B Asset
Backed Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes").
The Notes will be issued pursuant to the Indenture, dated as of
June 1, 2001 (the "Indenture"), between the Trust and The Bank of
Tokyo-Mitsubishi Trust Company, as trustee (the "Indenture Trustee"), and
will represent indebtedness of the Trust.
Concurrently with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $53,998,116.60 aggregate
principal amount of certificates (the "Certificates"), each representing an
interest in the property of the Trust (the "Trust Property"). The Seller
will retain the Certificates. The Certificates will be issued pursuant to
the Amended and Restated Trust Agreement, dated as of June 1, 2001 (the
"Trust Agreement"), between the Seller and Wilmington Trust Company, as
trustee (the "Owner Trustee"). The Certificates will be subordinated to the
Notes.
The assets of the Trust will include, among other things, (i) a
pool of motor vehicle retail installment sale contracts secured by new and
used automobiles and sport-utility vehicles to be conveyed to the Trust on
the Closing Date (as such term is defined in Section 3) (the "Receivables")
and (ii) with respect to (a) Actuarial Receivables, certain monies due
thereunder on or after the related Cutoff Date, and (b) Simple Interest
Receivables, certain monies due or received thereunder on or after the
related Cutoff Date. The Receivables will be sold to the Trust by the
Seller and will be serviced for the Trust by MMCA (in such capacity, the
"Servicer"). Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Sale and Servicing Agreement, dated as of
June 1, 2001 (the "Sale and Servicing Agreement"), among the Trust, the
Seller and the Servicer or, if not defined therein, in the Indenture, the
Trust Agreement or the Purchase Agreement, dated as of June 1, 2001 (the
"Purchase Agreement"), between MMCA, as seller, and the Seller, as
purchaser, as the case may be. The term "Basic Documents" means (i) the
Indenture, (ii) the Trust Agreement, (iii) the First Tier Assignment, dated
as of June 1, 2001 (the "First Tier Assignment"), as executed by MMCA, (iv)
the Sale and Servicing Agreement, (v) the Purchase Agreement, (vi) the
Certificate of Trust, filed April 12, 2001 (the "Certificate of Trust"),
with the Secretary of State of the State of Delaware, (vii) the
Administration Agreement, dated as of June 1, 2001 (the "Administration
Agreement"), among MMCA, as administrator (the "Administrator"), the Trust
and the Indenture Trustee, (viii) the Note Depository Agreement, dated as
of June 1, 2001 (the "Note Depository Agreement"), among the Trust, the
Indenture Trustee, the Administrator and The Depository Trust Company, (ix)
the Yield Supplement Agreement, dated as of June 1, 2001 (the "Yield
Supplement Agreement"), between the Seller and MMCA, (x) the Control
Agreement, dated as of June 1, 2001 (the "Control Agreement"), among the
Seller, the Trust, the Servicer, the Indenture Trustee and The Bank of
Tokyo-Mitsubishi Trust Company, as securities intermediary, and (xi) the
ISDA Master Agreement, dated June 7, 2001, including the schedule and each
confirmation relating to the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes (collectively, the "Interest Rate Swap Agreement"), between
the Trust and Xxxxxx Xxxxxxx Capital Services Inc., as swap counterparty
(the "Swap Counterparty"). The Seller hereby agrees with the Underwriters
as follows:
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-58904)
relating to the Notes, including a form of prospectus, has been
filed with the Securities and Exchange Commission (the
"Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not
proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If the Seller does not
propose to amend the registration statement and if any
post-effective amendment to the registration statement has been
filed with the Commission prior to the execution and delivery of
this Agreement, the most recent post-effective amendment has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act ("Rule 462(c)"). For
purposes of this Agreement, "Effective Time" means (i) if the
Seller has advised the Representative that it does not propose to
amend the registration statement, the date and time as of which
the registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) or (ii) if the Seller has advised the Representative that
it proposes to file an amendment or post-effective amendment to
the registration statement, the date and time as of which the
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date of
the Effective Time. The registration statement, as amended at the
Effective Time, including all information (if any) deemed to be a
part of the registration statement as of the Effective Time
pursuant to Rule 430A(b) under the Act ("Rule 430A(b)"), is
hereinafter referred to as the "Registration Statement". The form
of prospectus relating to the Notes, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under
the Act ("Rule 424(b)") or, if no such filing is required, as
included in the Registration Statement at the Effective Time, is
hereinafter referred to as the "Prospectus". No document has been
or will be prepared or distributed in reliance on Rule 434 under
the Act.
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the
Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date of this
Agreement and on the Closing Date, the Registration Statement
conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b), the Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. If the Effective Time is subsequent to the execution
and delivery of this Agreement: (i) on the Effective Date, the
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, (ii) on the date of this Agreement and on the Closing
Date, neither of such documents will include any untrue statement
of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) no additional registration
statement related to the Notes pursuant to Rule 462(b) under the
Act has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from the Registration
Statement or the Prospectus based upon written information
furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information is that described as
such in Section 7(b).
(c) The Seller has been duly formed and is validly
existing as a business trust under the Delaware Business Trust
Act, 12 Del.C. ss. 3801 et. seq. (the "Delaware Trust Act"), with
power and authority to own its properties and conduct its business
as described in the Prospectus, and the Seller is duly qualified
to do business and is in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Seller or the Trust for the
consummation of the transactions contemplated by this Agreement
and the Basic Documents in connection with the issuance of the
Notes and the Certificates and the sale by the Seller of the
Notes, except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing
of any financing statements required to perfect the Seller's, the
Trust's and the Indenture Trustee's interest in the Receivables,
which financing statements will be filed in the appropriate
offices within ten days of the Closing Date.
(e) The Seller is not in violation of the MART Trust
Agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any agreement or instrument to which it
is a party or by which it or its properties are bound which could
have a material adverse effect on the transactions contemplated
herein or in the Basic Documents. The execution, delivery and
performance of this Agreement and the Basic Documents, and the
issuance of the Notes and the Certificates and the sale by the
Seller of the Notes and compliance with the terms and provisions
hereof and thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction
over the Seller or any of its properties, or any agreement or
instrument to which the Seller is a party or by which the Seller
is bound or to which any of the properties of the Seller or any
such subsidiary is subject, or the MART Trust Agreement or other
organizational documents of the Seller, and the Seller has full
power and authority to authorize and issue the Notes and the
Certificates and to sell the Notes as contemplated by this
Agreement, the Indenture and the Trust Agreement, to enter into
this Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(f) On the Closing Date, the Seller will have directed
the Owner Trustee to authenticate and execute the Certificates
and, when executed, authenticated, delivered and paid for pursuant
to the Sale and Servicing Agreement and the Trust Agreement, the
Certificates will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Trust, entitled to the benefits provided in the
Trust Agreement and enforceable in accordance with their terms.
(g) On the Closing Date, the Seller will have directed the
Owner Trustee to execute the Notes and directed the Indenture
Trustee to authenticate and deliver the Notes and, when executed,
authenticated, delivered and paid for pursuant to the Indenture
and this Agreement, the Notes will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Trust, entitled to the benefits
provided in the Indenture and enforceable in accordance with its
terms.
(h) The Seller possesses adequate certificates, authorities
and permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Seller, would individually or in the
aggregate have a material adverse effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Seller or any of its properties that, if determined adversely to
the Seller, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or
results of operations of the Seller, or would materially and
adversely affect the ability of the Seller to perform its
obligations under this Agreement or the other Basic Documents to
which it is a party, or which are otherwise material in the
context of the issuance and sale of the Notes or the issuance of
the Certificates; and no such actions, suits or proceedings are
threatened or, to the Seller's knowledge, contemplated.
(j) As of the Closing Date, the representations and
warranties of the Seller contained in the Basic Documents will be
true and correct.
(k) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller,
whether or not arising in the ordinary course of business and (ii)
there have been no transactions entered into by the Seller, other
than those in the ordinary course of business, which are material
with respect to the Seller.
(l) Each of the Basic Documents to which the Seller is a
party has been duly authorized by the Seller and, when duly
executed and delivered by the Seller and the other parties
thereto, will constitute a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(m) This Agreement has been duly authorized, executed and
delivered by the Seller.
(n) The Seller has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Seller
has directed the Trust to execute and issue the Notes and the
Certificates and to sell the Notes.
(o) The Seller's assignment and delivery of the Receivables
to the Trust on the Closing Date will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrance.
(p) The Trust's assignment of the Receivables to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrance except for any tax lien, mechanics' lien or
other lien or encumbrance that attaches by operation of law.
(q) The Computer Tape of the Receivables created as of
the Closing Date and made available to the Representative by the
Servicer are or will be, as applicable, complete and accurate as
of the date thereof and include or will include, as applicable, an
identifying description of the Receivables that are listed on
Schedule A to the Sale and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Basic Documents, the Notes and the Certificates and
any other agreements contemplated herein or therein shall have
been paid or will be paid by the Seller at or prior to the Closing
Date to the extent then due.
(s) The consummation of the transactions contemplated
by this Agreement and the Basic Documents, and the fulfillment of
the terms hereof and thereof, will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Seller
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller is a debtor or
guarantor.
(t) The Seller is not and, after giving effect to the
issuance of the Notes and Certificates and the offering and sale
of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be required to be registered
as an "investment company" as defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, the Notes at a purchase price of, in the case of
the (i) Class A-1 Notes, 99.880000% of the principal amount thereof; (ii)
Class A-2 Notes, 99.852500% of the principal amount thereof; (iii) Class
A-3 Notes, 99.805000% of the principal amount thereof; (iv) Class A-4
Notes, 99.750000% of the principal amount thereof; and (v) Class B Notes,
99.648569% of the principal amount thereof, the respective principal
amounts of each Class of Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The Seller will deliver against payment of the purchase price
therefor, the Notes of each Class in the form of one or more permanent
global securities in definitive form (the "Global Notes") deposited with
the Indenture Trustee as custodian for 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 the Representative by the Seller at a
bank acceptable to the Representative, at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 a.m., New York time, on June 14, 2001, or at such other time not
later than seven full business days thereafter as the Representative and
the Seller determine, such time being herein referred to as the "Closing
Date", against delivery to the Indenture Trustee as custodian for DTC of
the Global Notes representing the Notes. The Global Notes will be made
available for checking at the above office of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP at least 24 hours prior to the Closing Date.
The Seller will deliver the Certificates to the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on the Closing Date. The
certificate for the Certificates so to be delivered will be in definitive
form, in authorized denominations and registered in the name of the Seller
and will be made available for checking at the above office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the parties hereto have agreed that
the Closing Date will be not later than June 14, 2001, unless otherwise
agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with
the several Underwriters:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus
with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b) not later than
the earlier of (i) the second business day following the execution
and delivery of this Agreement or (ii) the fifteenth business day
after the Effective Date. The Seller will advise the
Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Seller will advise the Representative promptly of
any proposal to amend or supplement the registration statement as
filed or the related prospectus, or the Registration Statement or
the Prospectus, and will not effect such amendment or
supplementation without the Representative's consent; and the
Seller will also advise the Representative promptly of the
effectiveness of the Registration Statement (if 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 Act in connection with
sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Seller will promptly
notify the Representative of such event and will promptly prepare
and file with the Commission (subject to the Representative's
prior review and consent pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such
statement or omission, or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the
Trust to make generally available to Noteholders an earnings
statement of the Trust covering a period of at least 12 months
beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after
the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date.
(e) The Seller will furnish to the Representative copies
of the Registration Statement (two of which will be signed and
will include all exhibits), each related preliminary prospectus
and, so long as delivery of a prospectus relating to the Notes is
required under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as the Representative requests. The Prospectus shall be
so furnished on or prior to 3:00 p.m., New York time, on the
business day following the later of the execution and delivery of
this Agreement or the Effective Time. All other such documents
shall be so furnished as soon as available. The Seller will pay
the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Seller will arrange for the qualification of the
Notes for offering and sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and will continue such
qualifications in effect so long as required for the distribution
of the Notes.
(g) For a period from the date of this Agreement until
the retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other
Underwriters, copies of each certificate and the annual statements
of compliance delivered to the Indenture Trustee pursuant to
Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the Sale
and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to the Indenture
Trustee pursuant to Section 3.11 of the Sale and Servicing
Agreement, by first-class mail as soon as practicable after such
statements and reports are furnished to the Indenture Trustee, and
(ii) such other forms of periodic certificates or reports as may
be delivered to the Indenture Trustee, the Owner Trustee or the
Noteholders under the Indenture, the Trust Agreement, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Seller to Noteholders, (ii) all documents
filed, or caused to be filed, by the Seller with the Commission
pursuant to the Exchange Act, any order of the Commission
thereunder and (iii) such other information in the possession of
the Seller concerning the Trust as the Representative from time to
time may reasonably request.
(i) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and the printing of memoranda
relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of
the Seller's officers and employees and any other expenses of the
Seller in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with
respect to the Notes by Xxxxx'x Investors Service, Inc.
("Moody's") and Xxxxx, Inc. ("Fitch" and, together with Moody's,
the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Seller, the
Seller shall furnish such documents and take any such other
action.
(k) On or before the Closing Date, the Seller shall cause
the computer records of the Seller 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
Seller nor MMCA shall take any action inconsistent with the
Trust's ownership of such Receivables other than as permitted by
the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes
on the Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Seller herein, to the accuracy of the
statements of the Seller's officers made pursuant to the provisions hereof,
to the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time is
prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time
is subsequent to the execution and delivery of this Agreement,
shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior
to such Effective Time), of Ernst & Young LLP, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable Rules
and Regulations and stating in effect that (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 Seller) set forth in the
Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Trust, MMCA
and the Seller, excluding any questions of legal interpretation,
and (ii) they have performed certain specified procedures with
respect to the Receivables.
(b) If the Effective Time is not prior to the execution
and delivery of this Agreement, the Effective Time shall have
occurred not later than 10:00 p.m., New York time, on the date of
this Agreement or such later date as shall have been consented to
by the Representative. If the Effective Time is prior to the
execution and delivery of this Agreement, the Prospectus shall
have been filed with the Commission in accordance with the Rules
and Regulations and Section 5(a). Prior to the Closing Date, no
stop order or other order of the Commission suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Seller or the Representative, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations or retail motor vehicle financing business or
light-duty truck financing business of the Trust, the Seller,
Mitsubishi Motor Sales of America, Inc., Mitsubishi Motors
Corporation or MMCA which, in the judgment of a majority in
interest of the Underwriters (including the Representative),
materially impairs the investment quality of each Class of Notes
or makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for each Class
of Notes on the terms and in the manner contemplated in the
Prospectus; (ii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (iii) any
banking moratorium declared by Federal, California or New York
authorities; or (iv) any outbreak or escalation of hostilities in
which the United States is involved, any declaration of war by
Congress or any substantial national or international calamity or
emergency or any material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets of the United States shall not
be) such that, in the judgment of a majority in interest of the
Underwriters (including the Representative), the effect of any
such outbreak, escalation, declaration, calamity, emergency or
material adverse change makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for each Class of Notes on the terms and in the manner
contemplated in the Prospectus.
(d) The Representative shall have received an opinion of
(A) J. Xxxx Xxxxxx, Esq., Director of Legal Affairs of the Seller
and MMCA, (B) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
New York counsel to the Seller and MMCA, and (C) Xxxxxxxx, Xxxxxx
& Finger, P.A., special Delaware counsel to the Trust, in each
case dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters and, in the
aggregate, to the effect that:
(i) the Seller has been duly formed and is
validly existing as a business trust under the Delaware
Trust Act, with full power and authority to own its
properties and conduct its business as described in the
Prospectus; the Seller is duly qualified to do business
and is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of its
business requires such qualification; and the Seller has
full power and authority under the Delaware Trust Act and
under the MART Trust Agreement to enter into and perform
its obligations under this Agreement and the Basic
Documents to which it is a party, to direct the Indenture
Trustee and the Owner Trustee to execute the Notes and
the Certificates, respectively, to consummate the
transactions contemplated hereby and thereby and had at
all times, and now has, the power, authority and legal
right to acquire, own and sell the Receivables;
(ii) MMCA has been duly incorporated and is an
existing corporation in good standing under the laws of
the State of Delaware, with corporate power and authority
to own its properties and conduct its business as
described in the Prospectus; MMCA is duly qualified to do
business and is in good standing in each jurisdiction in
which its ownership or lease of property or the conduct
of its business requires such qualification; and MMCA has
full power and authority to enter into and perform its
obligations under the Note Indemnification Agreement,
dated June 7, 2001 (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 Seller to the
Owner Trustee to execute the Notes and the direction by
the Seller to the Indenture Trustee to authenticate and
deliver the Notes has been duly authorized by the Seller
and, when the Notes have been duly executed by the Owner
Trustee and, when authenticated and delivered by the
Indenture Trustee in accordance with the terms of the
Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Notes will
be duly and validly issued and outstanding and will be
entitled to the benefits of the Indenture;
(iv) the direction by the Seller to the Owner
Trustee to authenticate and execute the Certificates has
been duly authorized by the Seller and, when the
Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the
terms of the Trust Agreement and the Certificates have
been delivered to and paid for by the Seller pursuant to
the Sale and Servicing Agreement and the Trust Agreement,
the Certificates will be duly and validly issued and
outstanding and will be entitled to the benefits of the
Trust Agreement;
(v) the Note Indemnification Agreement and each
Basic Document to which MMCA is a party has been duly
authorized, executed and delivered by MMCA;
(vi) no consent, approval, authorization or order
of, or filing with any governmental agency or body or any
court is required for the execution, delivery and
performance by the Seller of this Agreement and the Basic
Documents to which it is a party, for the execution,
delivery and performance by MMCA of the Note
Indemnification Agreement and the Basic Documents to
which it is a party or for the consummation of the
transactions contemplated by this Agreement, the Basic
Documents or the Note Indemnification Agreement, except
for (i) the filing of Uniform Commercial Code financing
statements in California with respect to the transfer of
the Receivables to the Seller pursuant to the Purchase
Agreement (the "Seller Financing Statements") and the
transfer of the Trust Property to the Trust pursuant to
the Sale and Servicing Agreement (the "Trust Financing
Statements") 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 (the
"Indenture Financing Statements"), which financing
statements will be filed in the appropriate offices
within ten days of the Closing Date; (ii) such as have
been obtained and made under the Act; and (iii) such as
may be required under state securities laws;
(vii) the execution, delivery and performance of
this Agreement and the Basic Documents by the Seller, 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 Seller
pursuant to the terms of the Certificate of Incorporation
or the By-Laws of MMCA or the documents of organization
of the Seller, or any statute, rule, regulation or order
of any governmental agency or body, or any court having
jurisdiction over MMCA or the Seller or their respective
properties, or any agreement or instrument known to such
counsel after due investigation to which MMCA or the
Seller is a party or by which MMCA or the Seller or any
of their respective properties is bound;
(viii) such counsel has no reason to believe that
any part of the Registration Statement or any amendment
thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of
its issue date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state
any material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made,
not misleading; the descriptions in the Registration
Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus
which are not described as required or of any contracts
or documents of a character required to be described in
the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are
not described and filed as required; it being understood
that such counsel need express no opinion as to the
financial statements or other financial data contained in
the Registration Statement or the Prospectus;
(ix) there are no actions, proceedings or
investigations pending to which the Seller or MMCA is a
party or, to the best knowledge of such counsel, after
due inquiry, threatened before any court, administrative
agency or other tribunal having jurisdiction over MMCA or
the Seller, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of
this Agreement, the Note Indemnification Agreement, any
Basic Document, the Notes or the Certificates, (iii)
seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Basic
Documents, (iv) which might materially and adversely
affect the performance by the Seller or MMCA of its
obligations under, or the validity or enforceability of,
this Agreement, the Note Indemnification Agreement, any
Basic Document, the Notes or the Certificates or (v)
seeking adversely to affect the federal income tax
attributes of the Notes as described in the Prospectus
under the heading "FEDERAL INCOME TAX CONSEQUENCES";
(x) the statements in the Registration Statement
under the heading "SOME IMPORTANT LEGAL ASPECTS OF THE
RECEIVABLES", to the extent they constitute statements of
matters of law or legal conclusions with respect thereto,
are correct in all material respects;
(xi) each of MMCA and the Seller has obtained all
necessary licenses and approvals in each jurisdiction in
which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by
MMCA, the Seller, the Trust, the Owner Trustee or the
Indenture Trustee;
(xii) this Agreement and each Basic Document to
which the Seller is a party has been duly authorized,
executed and delivered by the Seller;
(xiii) such counsel is familiar with MMCA's standard
operating procedures relating to MMCA's acquisition of a
perfected first priority security interest in the
vehicles financed by MMCA pursuant to retail installment
sale contracts in the ordinary course of MMCA's business;
assuming that MMCA's standard procedures are followed
with respect to the perfection of security interests in
the Financed Vehicles (and such counsel has no reason to
believe that MMCA has not or will not continue to follow
its standard procedures in connection with the perfection
of security interests in the Financed Vehicles), MMCA has
acquired or will acquire a perfected first priority
security interest in the Financed Vehicles;
(xiv) the Receivables are chattel paper as defined
in the UCC; and
(xv) immediately prior to the sale of the
Receivables by MMCA to the Seller pursuant to the
Purchase Agreement and the First Tier Assignment, MMCA
was the sole owner of all right, title and interest in,
to and under the Receivables and the other property to be
transferred by it to the Seller; immediately prior to the
sale of the Receivables by the Seller to the Trust
pursuant to the Sale and Servicing Agreement, the Seller
was the sole owner of all right, title and interest in,
to and under the Receivables and the other property to be
sold by it to the Trust.
(e) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Seller and MMCA, dated the Closing Date, and satisfactory in form
and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) 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
Seller's rights in the Receivables and proceeds thereof,
which security interest, if characterized as a transfer
for security, will secure payment of the Notes;
(iii) the Trust Financing Statement is in
appropriate form for filing in the relevant filing office
under the California UCC, upon the filing of the Trust
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
Seller 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
Seller to the Owner Trustee to execute the Notes and the
direction by the Seller to the Indenture Trustee to
authenticate and deliver the Notes has been duly
authorized by the Seller, when the Notes have been duly
executed by the Owner Trustee and authenticated and
delivered by the Indenture Trustee in accordance with the
terms of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, the Notes
will be duly and validly issued and outstanding and will
be entitled to the benefits of the Indenture;
(vi) assuming that the direction by the Seller to
the Owner Trustee to execute, authenticate and deliver
the Certificates has been duly authorized by the Seller,
when the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee in
accordance with the terms of the Trust Agreement and the
Certificates have been delivered to and paid for by the
Seller pursuant to the Sale and Servicing Agreement and
the Trust Agreement, the Certificates will be duly and
validly issued and outstanding and will be entitled to
the benefits of the Trust Agreement;
(vii) the statements in the Prospectus under the
heading "SOME IMPORTANT LEGAL ASPECTS OF THE
RECEIVABLES", to the extent they constitute matters of
law or legal conclusions, are correct in all material
respects;
(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 Seller of this Agreement
and the Basic Documents to which it is a party, the
execution, delivery and performance by MMCA of the Note
Indemnification Agreement and the Basic Documents to
which it is a party or for the consummation of the
transactions contemplated by this Agreement, the Note
Indemnification Agreement or the Basic Documents, except
such as may be required under state securities laws and
such as have been obtained and made under the Act;
(xi) the Registration Statement was declared
effective under the Act as of the date specified in such
opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein
or was included in the Registration Statement and, to the
best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each
amendment or supplement thereof, as of their respective
effective or issue dates, complies as to form in all
material respects with the requirements of the Act and
the Rules and Regulations; such counsel has no reason to
believe that any part of the Registration Statement or
any amendment thereto, as of its effective date,
contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made,
not misleading; and to the best knowledge of such
counsel, such counsel does not know of any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not
described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus;
(xii) each of the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the
Administration Agreement, the Yield Supplement Agreement,
the Purchase Agreement, the Control Agreement and the
First Tier Assignment constitutes the legal, valid and
binding agreement of the Seller and MMCA, in each case as
to those documents to which it is a party, enforceable
against the Seller 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) assuming due authorization, execution and
delivery by the Swap Counterparty, the Interest Rate Swap
Agreement 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;
(xv) neither the Trust nor the Seller is and,
after giving effect to the issuance of the Notes and the
Certificates and the sale of the Notes and the
application of the proceeds thereof, as described in the
Prospectus, neither the Trust nor the Seller will be, an
"investment company" as defined in the Investment Company
Act;
(xvi) the Notes, the Certificates, the Purchase
Agreement, the Administration Agreement, the First Tier
Assignment, the Sale and Servicing Agreement, the Yield
Supplement Agreement, the Trust Agreement, this
Agreement, the Indenture and the Interest Rate Swap
Agreement each conform in all material respects with the
descriptions thereof contained in the Registration
Statement and the Prospectus; and
(xvii) the Trust Agreement is the legal, valid and
binding agreement of the Seller, enforceable against the
Seller in accordance with its terms under the law of the
State of Delaware.
(f) The Representative shall have received an opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel
for the Seller, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the
Underwriters, to the effect that for federal income tax purposes
(i) the Notes will be characterized as indebtedness of the Trust,
(ii) the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation and (iii)
the statements set forth in the Prospectus under the headings
"SUMMARY OF TERMS--Tax Status", "SUMMARY OF TERMS--ERISA
Considerations", "SUMMARY OF TERMS--Eligibility of Notes for
Purchase by Money Market Funds", "TERMS OF THE NOTES--Terms of the
Indenture" (last sentence of the last paragraph under "Events of
Default Under the Indenture" and last sentence of the first
paragraph under "Remedies Following an Event of Default under the
Indenture" only), "SOME IMPORTANT LEGAL ASPECTS OF THE
RECEIVABLES", "FEDERAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS" to the extent such statements constitute matters
of law or legal conclusions with respect thereto, are correct in
all material respects.
(g) The Representative shall have received an opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel
for the Seller, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the
Underwriters, to the effect that (i) for California state
franchise and income tax purposes (A) the Trust will not be
taxable as a corporation and (B) the Notes will be treated as
indebtedness, (ii) the Notes will be characterized as indebtedness
for Delaware state income tax purposes, (iii) the Trust will not
be subject to Delaware state franchise or income tax as a separate
entity and (iv) the statements set forth in the Prospectus under
the headings "SUMMARY OF TERMS--Tax Status" and "STATE TAX
CONSEQUENCES", to the extent such statements constitute matters of
law or legal conclusions with respect thereto, are correct in all
material respects.
(h) The Representative shall have received an opinion
from Legal Counsel to the Swap Counterparty, dated the Closing
Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that the Interest
Rate Swap Agreement has been duly authorized, executed and
delivered by the Swap Counterparty and (assuming the due
authorization, execution and delivery by the Trust) constitutes a
valid and binding agreement of the Swap Counterparty, enforceable
against the Swap Counterparty in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent
transfer or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles.
(i) The Representative shall have received from Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, an opinion,
dated the Closing Date, with respect to the validity of the Notes,
the Registration Statement, the Prospectus and other related
matters as the Representative may require, and the Seller shall
have furnished to such counsel such documents as it may request
for the purpose of enabling it to pass upon such matters.
(j) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the
President or any Vice President and a principal financial or
accounting officer, or equivalent officer or officers, of each of
the Seller and MMCA in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Seller in this Agreement are
true and correct; the representations of MMCA in the Note
Indemnification Agreement are true and correct; the Seller or
MMCA, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; the representations and
warranties of the Seller or MMCA, as applicable, in the Basic
Documents are true and correct as of the dates specified in such
agreements; the Seller or MMCA, as applicable, has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the
Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the
Commission; and, subsequent to the date of the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of
operations of the Seller or MMCA or their respective businesses
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(k) The Representative shall have received an opinion
of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Indenture Trustee is a banking corporation
duly incorporated and validly existing under the laws of
the State of New York;
(ii) the Indenture Trustee has the full corporate
trust power to accept the office of indenture trustee
under the Indenture and to enter into and perform its
obligations under the Indenture, the Sale and Servicing
Agreement 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 Administration Agreement constitute
valid and binding obligations of the Indenture Trustee
enforceable against the Indenture Trustee in accordance
with their terms under the laws of the State of New York
and the Federal law of the United States;
(v) the execution and delivery by the Indenture
Trustee of the Indenture and the Administration Agreement
and the acceptance of the Sale and Servicing Agreement do
not require any consent, approval or authorization of, or
any registration or filing with, any New York or United
States federal governmental authority, other than the
qualification of the Indenture Trustee under the Trust
Indenture Act;
(vi) each of the Notes has been duly authenticated
and delivered by the Indenture Trustee;
(vii) neither the consummation by the Indenture
Trustee of the transactions contemplated in the Sale and
Servicing Agreement, the Indenture 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.
(l) The Representative shall have received an opinion
of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Owner Trustee has been duly incorporated
and is validly existing as a banking corporation in good
standing under the laws of the State of Delaware;
(ii) the Owner Trustee has full corporate trust
power and authority to enter into and perform its
obligations under the Trust Agreement and, on behalf of
the Trust, under the other Basic Documents to which it is
a party and has duly authorized, executed and delivered
such Basic Documents and such Basic Documents constitute
the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with their terms,
except that certain of such obligations may be
enforceable solely against the Trust Property (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time
in effect, and subject, as to enforceability, to general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or
at law);
(iii) the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee as
trustee and authenticating agent; each of the Notes has
been duly executed by the Owner Trustee, on behalf of the
Trust;
(iv) the execution and delivery by the Owner
Trustee of the Trust Agreement and, on behalf of the
Trust, of the other Basic Documents to which it is a
party and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a
breach or violation of or constitute a default under the
Articles of Association or By-laws of the Owner Trustee;
and
(v) the execution, delivery and performance by
the Owner Trustee of the Trust Agreement and, on behalf
of the Trust, of the other Basic Documents to which it is
a party do not require any consent, approval or
authorization of, or any registration or filing with, any
Delaware or United States federal governmental authority
having jurisdiction over the trust power of the Owner
Trustee, other than those consents, approvals or
authorizations as have been obtained and the filing of
the Certificate of Trust with the Secretary of State of
the State of Delaware.
(m) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) the Trust has been duly formed and is
validly existing as a business trust under the Delaware
Trust Act;
(ii) the Trust has the power and authority under
the Delaware Trust Act and the Trust Agreement, and the
Trust Agreement authorizes the Owner Trustee, to execute,
deliver and perform its obligations under the Sale and
Servicing Agreement, the Indenture, the Administration
Agreement, the Note Depository Agreement, the Interest
Rate Swap 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 the
Indenture Financing Statement with the Secretary of State
of the State of Delaware the Indenture Trustee will have
a perfected security interest in the Trust's rights in
such Receivables and the proceeds thereof, and such
security interest will be prior to any other security
interest granted by the Trust that is perfected solely by
the filing of financing statements under the Delaware
UCC, excluding purchase money security interests
underss.9-312(4) of the Delaware UCC and temporarily
perfected security interests in proceeds underss.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 Notes have been duly
executed by the Owner Trustee on behalf of the Trust, and
assuming that the Notes have been duly authenticated by
the Indenture Trustee, when the Notes have been delivered
in accordance with the Indenture, the Notes will be
validly issued and entitled to the benefits of the
Indenture;
(vi) assuming that the Certificates have been
duly authorized, executed and authenticated by the Owner
Trustee on behalf of the Trust, when the Certificates
have been issued and delivered in accordance with the
instructions of the Seller, the Certificates will be
validly issued and entitled to the benefits of the Trust
Agreement; and
(vii) under 12 Del. C. ss. 3805(b), no creditor
of any Certificateholder (including creditors of the
Seller in its capacity as Certificateholder) shall have
any right to obtain possession of, or otherwise exercise
legal or equitable remedies with respect to, the property
of the Trust except in accordance with the terms of the
Trust Agreement.
(n) The Representative shall have received an opinion
of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel to the MART 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 MART 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 MART Trustee has full corporate trust
power and authority to enter into and perform its
obligations under the MART Trust Agreement and has duly
authorized, executed and delivered the MART Trust
Agreement and the MART Trust Agreement constitutes the
legal, valid and binding agreement of the MART Trustee,
enforceable in accordance with its terms;
(iii) the execution and delivery by the MART
Trustee of the MART Trust Agreement and the performance
by the MART 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 MART Trustee; and
(iv) the execution, delivery and performance by
the MART Trustee of the MART Trust Agreement 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 MART Trustee, other than
those consents, approvals or authorizations as have been
obtained.
(o) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Seller,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, (i) with
respect to the characterization of the transfer of the Receivables
by MMCA to the Seller and from the Seller to the Trust and (ii) to
the effect that should MMCA become the debtor in a case under the
Bankruptcy Code, and the Seller would not otherwise properly be a
debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising its judgment after full
consideration of all relevant factors, would not order, over the
objection of the Certificateholders or the Noteholders, the
substantive consolidation of the assets and liabilities of the
Seller with those of MMCA and such opinion shall be in
substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and
counsel for the Underwriters.
(p) The Representative shall have received evidence
satisfactory to it and counsel for the Underwriters that, within
ten days of the Closing Date, UCC-1 financing statements have been
or are being filed in the offices of the Secretary of State of the
States of (i) California reflecting the transfer of the interest
of MMCA in the Receivables and the proceeds thereof to the Seller
and the transfer of the interest of the Seller in the Receivables
and the proceeds thereof to the Trust and (ii) Delaware reflecting
the grant of the security interest by the Trust in the Receivables
and the proceeds thereof to the Indenture Trustee.
(q) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Trust, dated the Closing Date and satisfactory in form and
substance to the Representative and the counsel for the
Underwriters to the effect that (i) the provisions of the
Indenture are effective to create a valid security interest in
favor of the Indenture Trustee, to secure payment of the Notes, in
all "securities entitlements" (as defined in Section 8-102(a)(17)
of the New York UCC) with respect to "financial assets" (as
defined in Section 8-102(a)(9) of the New York UCC) now or
hereafter credited to the Reserve Account or to the Yield
Supplement Account (such securities entitlements, the "Securities
Entitlements"), (ii) the provisions of the control agreement for
purposes of Article 8 of the New York UCC are effective to perfect
the security interest of the Indenture Trustee in the Securities
Entitlements and (iii) no security interest of any other creditor
of the Trust will be prior to the security interest of the
Indenture Trustee in such Securities Entitlements.
(r) The Class A-1 Notes shall have been rated at least
"Prime-1" and "F1+" by Moody's and Fitch, respectively. The Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been
rated "Aaa" and "AAA" by Moody's and Fitch, respectively, and the
Class B Notes shall have been rated at xxxxx "X0" and "A" by
Moody's and Fitch, respectively.
(s) The Representative shall have received a letter,
dated the Closing Date, of Ernst & Young LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not
more than three days prior to the Closing Date for purposes of
this subsection.
(t) On the Closing Date, the Certificates shall have
been issued to the Seller.
(u) The Representative shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP and each other counsel for the
Seller, a letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such counsel
to either Rating Agency in connection with the rating of any Class
of Notes, as if each such opinion were addressed to the
Underwriters.
The Seller will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests.
The Representative may in its sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Seller
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided,
further, that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Notes concerned, to the extent
that the untrue statement or omission or alleged untrue statement or
omission was eliminated or remedied in the Prospectus, which Prospectus was
required to be delivered by such Underwriter under the Act to such person
and was not so delivered if the Seller had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Seller against any losses, claims, damages or
liabilities to which the Seller may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Seller by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Seller in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the figures on the cover page concerning the terms of the
offering by the Underwriters, the concession and reallowance figures
appearing under the caption "Underwriting" and the information contained in
the fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by any indemnified party under this
Section 7 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 7, notify the
indemnifying party of the claim or the commencement of that action;
provided, however, that the failure to notify an indemnifying party shall
not relieve the indemnifying party from any liability which it may have
under Section 7(a) or (b) except to the extent the indemnifying party has
been materially prejudiced by such failure; and provided further, however,
that the failure to notify any indemnifying party shall not relieve the
indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 7(a) or (b). In any such action, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party if indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Seller on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Seller on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Notes (before deducting expenses) received by the
Seller bear to the total underwriting discounts and commissions received by
the Underwriters in respect of the Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount under this
Agreement and under the Note Indemnification Agreement in excess of the
amount by which the underwriting discount or commission allocable to the
Notes underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be
in addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller,
to each officer of the Seller who has signed the Registration Statement and
to each person, if any, who controls the Seller within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing
Date and the aggregate principal amount of Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Notes that the Underwriters are
obligated to purchase on the Closing Date, the Representative may make
arrangements satisfactory to the Seller for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes that such defaulting Underwriters agreed
but failed to purchase on the Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase
on the Closing Date and arrangements satisfactory to the Representative and
the Seller for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Seller
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or the Seller or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Notes
have been purchased hereunder the representations and warranties in Section
2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8, the Seller will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed
and confirmed to the Representative at Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx, with a copy
to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Esq., or, if sent to the
Seller, will be mailed, delivered or sent by facsimile and confirmed to it
at X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention:
Secretary/Treasurer, Telecopy: (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior
to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section
7, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original but
all such counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of
New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of
the counterparts hereof, whereupon it will become a binding agreement
between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------
Xxxxxxxx Xxxxxxxx
Secretary and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
Principal
For itself and as Representative of the other
Underwriters named in Schedule A hereto
SCHEDULE A
Amount of
Amount of Amount of Floating
Amount of Floating Rate Floating Rate Rate Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriters Notes Notes Notes Notes Notes
-------------------------------------- ------------- ------------- ------------- ------------ -----------
Xxxxxx Xxxxxxx & Co. Incorporated..... $102,318,300 $65,800,000 $160,300,000 $105,000,000 $46,797,000
Chase Securities Inc.................. 14,616,900 9,400,000 22,900,000 15,000,000 0
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.............. 14,616,900 9,400,000 22,900,000 15,000,000 0
Xxxxxxx Xxxxx Barney Inc.............. 14,616,900 9,400,000 22,900,000 15,000,000 0
------------- ------------- ------------- ------------ -----------
Total $146,169,000 $94,000,000 $229,000,000 $150,000,000 $46,797,000
============= ============= ============= ============ ===========
