EXHIBIT 10.1
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PURCHASE AGREEMENT
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
as Seller
and
MMCA AUTO RECEIVABLES TRUST
as Purchaser
Dated as of March 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND USAGE..............................................1
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES..................................1
Section 2.1 Purchase and Sale of Receivables.......................1
Section 2.2 Payment of the Purchase Price..........................4
Section 2.3 The Closing............................................4
ARTICLE III - REPRESENTATIONS AND WARRANTIES...................................5
Section 3.1 Representations and Warranties of the Purchaser........5
Section 3.2 Representations and Warranties of the Seller...........6
ARTICLE IV - CONDITIONS.......................................................12
Section 4.1 Conditions to Obligations of the Purchaser............12
Section 4.2 Conditions to Obligation of the Seller................14
ARTICLE V - COVENANTS OF THE SELLER...........................................14
Section 5.1 Protection of Right, Title and Interest...............15
Section 5.2 Other Liens or Interests..............................16
Section 5.3 Costs and Expenses....................................16
Section 5.4 Indemnification.......................................16
Section 5.5 Sale..................................................17
ARTICLE VI - MISCELLANEOUS PROVISIONS.........................................17
Section 6.1 Obligations of Seller.................................17
Section 6.2 Repurchase Events.....................................17
Section 6.3 Purchaser's Assignment of Repurchased Receivables.....17
Section 6.4 Trust.................................................17
Section 6.5 Amendments............................................18
Section 6.6 Accountants' Letters..................................18
Section 6.7 Waivers...............................................18
Section 6.8 Notices...............................................18
Section 6.9 Costs and Expenses....................................19
Section 6.10 Representations of the Seller and the Purchaser.......19
Section 6.11 Confidential Information..............................19
Section 6.12 Headings and Cross-References.........................19
Section 6.13 Governing Law.........................................19
Section 6.14 Agreements of Purchaser...............................19
Section 6.15 Counterparts..........................................19
Exhibits
Form of First-Tier Initial Assignment ...............................Exhibit A-1
Form of First-Tier Subsequent Assignment ............................Exhibit A-2
Schedule of Initial Receivables .......................................Exhibit B
Schedules
Locations of Receivables Files .......................................Schedule A
PURCHASE AGREEMENT, dated as of March 1, 2002 (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 other property related thereto will be
sold by the Seller to the Purchaser on the Closing Date, the Subsequent
Receivables and other property related thereto will be sold by the Seller
to the Purchaser from time to time during the Pre-Funding Period, and the
Reinvestment Receivables and other property related thereto will be sold by
the Seller to the Purchaser from time to time during the Reinvestment
Period, which Receivables and other property related thereto will be sold
by the Purchaser, pursuant to the Sale and Servicing Agreement, to the
Trust to be created pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other
good and valuable consideration, and the mutual terms and covenants
contained herein, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I - DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein
are defined in Appendix A to the Indenture (the "Indenture"), dated as of
March 1, 2002, between MMCA Auto Owner Trust 2002-1, as issuer, and Bank of
Tokyo-Mitsubishi Trust Company, as indenture trustee, which also contains
rules as to usage that shall be applicable herein. The term "Seller" herein
shall mean Mitsubishi Motors Credit of America, Inc, its successors and
assigns.
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES
Section 2.1 Purchase and Sale of Receivables.
On the Closing Date and on 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. Subject to satisfaction of the
conditions set forth in Section 4.1(a), 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 after the Initial Cutoff Date
(including Payaheads) and, with respect to Initial Receivables that are
Simple Interest Receivables, monies received thereunder 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.
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 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 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 4.11(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,
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.
(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 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 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.
(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 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 Balloon Payment Receivables
and 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 Balloon
Payment Receivable or 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 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), or all necessary and appropriate action with respect to
such Receivables shall have been taken to perfect a first priority
security interest in such Financed Vehicle for the benefit of the
Seller and the Purchaser, respectively.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle
have been released from the Lien granted by the related Receivable in
whole or in part, which security interest shall be assignable by the
Seller to the Purchaser.
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the representations and warranties made by the Seller in this Section
3.2(b) with respect thereto.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no
liens or claims shall have been filed for work, labor, or materials
relating to a Financed Vehicle that shall be liens prior to, or equal
or coordinate with, the security interest in the Financed Vehicle
granted by the Receivable.
(xi) No Default; Repossession. Except for payment defaults
continuing for a period of not more than 30 days or payment defaults
of 10% or less of a Scheduled Payment, in each case as of the 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. The Seller
has not entered into any agreement with any obligor that prohibits,
restricts or conditions the assignment of any portion of the
Receivables.
(xv) All Filings Made. All filings (including, without
limitation, filings under the Relevant UCC) necessary in any
jurisdiction to give the Purchaser a first priority perfected security
interest in the Receivables shall be made within ten days of the
Closing Date (with respect to the Initial Receivables) or within ten
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 other used automobiles and sports-utility
vehicles.
(xxi) Origination. Each Receivable shall have an origination
date during or after [January 27, 1999].
(xxii) Maturity of Receivables. Each Receivable shall have,
as of the related Cutoff Date, not more than [66] 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 Receivables shall be not more than
[59] Scheduled Payments. As of each Subsequent Cutoff Date, the
weighted average number of payments remaining until the maturity of
any related Subsequent Receivables shall be not more than [66]
Scheduled Payments.
(xxiv) Annual Percentage Rate. Each Receivable shall have an
APR of at least 0% and not more than 30%.
(xxv) Scheduled Payments. No Receivable shall have a payment
of which more than 10% of such payment is more than 30 days overdue as
of the 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) Other Data. The tabular data and the numerical data
relating to the characteristics of the Receivables contained in the
Prospectus are true and correct in all material respects.
(xxix) Last Scheduled Payments. The aggregate principal
balance of the Last Scheduled Payments of Balloon Payment Receivables
and 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 Balloon Payment Receivables and 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 [ ]%.
(xxx) Receivable Yield Supplement Amounts. An amount equal
to the sum of all projected Yield Supplement Amounts for all future
Payment Dates with respect to each Deferred Payment Receivable and
each Deferred Balloon Payment Receivable, assuming that no prepayments
are made on the Deferred Payment Receivable or the Deferred Balloon
Payment Receivable, as the case may be, has been deposited to the
Yield Supplement Account on or prior to the Closing Date or the
related Subsequent Transfer Date, as applicable.
(xxxi) Prepaid Receivables. No Receivable shall have been
pre-paid by more than six monthly payments as of the related Cutoff
Date.
(xxxii) Limited Credit Experience. The aggregate principal
balance of the Initial Receivables sold to the Purchaser on the
Closing Date on which the Obligor has limited credit experience, as a
percentage of the aggregate principal balance of all Receivables as of
the Initial Cutoff Date, is not greater than [ ]%. 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 [ ]%.
(xxxiii) 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
300 days or greater. 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 a period of between 200
and 299 days. 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 a period of between 100 and 199 days.
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 a period of 99 days or less. In no case will the first
payment on a Deferred Payment Receivable be due later than 480 days
after the date of inception of that Receivable.
(xxxiv) Long Deferment Period Receivables. As of the Initial
Cutoff Date, $[ ] total principal balance of Deferred Payment
Receivables included in the Initial Receivables were Long Deferment
Period Receivables.
(xxxv) Reinvested Receivables. With respect to Reinvested
Receivables transferred to the Issuer on the related Subsequent
Transfer Date, none of such Receivables are Deferred Payment
Receivables.
(xxxvi) Deferred Balloon Payment Receivables. As of the
Initial Cutoff Date, $[ ] total principal balance of Deferred Balloon
Payment Receivables were originated with a deferral period of 90 days,
and $[ ] total principal balance of Deferred Balloon Payment
Receivables were originated with a deferral period of 180 days.
(xxxvii) Modified Receivables. The APR of any Modified
Receivable is equal to the APR of the related Deferred Payment
Receivable. The date on which the final Scheduled Payment is due on a
Modified Receivable is not different than the date set forth in the
related Contract as the date on which the final Scheduled Payment
under such Receivable is due. No Deferred Payment Receivable became a
Modified Receivable after 90 days following the date the first
Scheduled Payment on the Receivable was due.
ARTICLE IV - CONDITIONS
Section 4.1 Conditions to Obligations of the Purchaser.
(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 Cutoff Date or on the Closing Date, as appropriate, with the same
effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing
Date.
(ii) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that the 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.
(1) 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.
(2) The Yield Supplement Agreement. At the Closing, the
Seller will execute and deliver the Yield Supplement Agreement.
(3) Evidence of UCC Filing. Within ten days of the
Closing Date, the Seller shall record and file, at its own
expense, a UCC financing statement in each jurisdiction in which
required by applicable law, authorized by the Seller, as seller
or debtor, and naming the Purchaser, as purchaser or secured
party, naming the 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 days of the Closing Date.
(4) 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.
(iii) Documents to be delivered by the Seller on the related
Subsequent Transfer Date.
(1) 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.
(2) Evidence of UCC Filing. Within ten days of the
related Subsequent Transfer Date, the Seller shall record and
file, at its own expense, a UCC 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 days of the
related Subsequent Transfer Date.
(3) 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).
(4) 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.
(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 Initial 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 authorize and file such financing statements
and cause to be authorized and filed such continuation statements, all in
such manner and in such places as may be required by law fully to preserve,
maintain, and protect the interest of the Purchaser under this Agreement
in, to and under the Receivables and the other property conveyed hereunder
and in the proceeds thereof. The Seller shall deliver (or cause to be
delivered) to the Purchaser file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) The Seller shall not change its name, identity, or corporate
structure in any manner that would, could, or might make any financing
statement or continuation statement filed by the Seller in accordance with
paragraph (a) above seriously misleading within the meaning of Section
9-506(b) of the Relevant UCC, unless it shall have given the Purchaser at
least 60 days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall give the Purchaser at least 60 days' prior
written notice of any relocation of its principal executive office or of
any change in its jurisdiction of organization if, as a result of such
relocation or change, the applicable provisions of the Relevant UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly
file any such amendment, continuation statement or new financing statement.
The Seller shall at all times maintain each office from which it shall
service Receivables, its principal executive office, and its jurisdiction
of organization within the United States of America.
(d) The Seller shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so that, from
and after the time of sale hereunder of the Receivables to the Purchaser,
the Seller's master computer records (including any back-up archives) that
refer to a Receivable shall indicate clearly the interest of the Purchaser
in such Receivable and that such Receivable is owned by the Purchaser (or,
upon sale of the Receivables to the Trust, by the Trust). Indication of the
Purchaser's ownership of a Receivable shall be deleted from or modified on
the Seller's computer systems when, and only when, the Receivable shall
have been paid in full or repurchased.
(f) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any automobile
or sports-utility vehicle receivables (other than the Receivables) to any
prospective purchaser, lender, or other transferee, the Seller shall give
to such prospective purchaser, lender, or other transferee computer tapes,
compact disks, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Purchaser or its assignee unless such Receivable has been
paid in full or repurchased.
(g) The Seller shall permit the Purchaser and its agents at any
time during normal business hours to inspect, audit, and make copies of and
abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the Purchaser,
within ten Business Days, a list of all Receivables (by contract number and
name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of Receivables.
Section 5.2 Other Liens or Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer any
Receivable to any other Person, or grant, create, incur, assume or suffer
to exist any Lien on any interest therein, and the Seller shall defend the
right, title, and interest of the Purchaser in, to and under the
Receivables against all claims of third parties claiming through or under
the Seller; provided, however, that the Seller's obligations under this
Section 5.2 shall terminate upon the termination of the Trust pursuant to
the Trust Agreement.
Section 5.3 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in,
to and under the Receivables.
Section 5.4 Indemnification.
(a) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the failure of a
Receivable to be originated in compliance with all requirements of law and
for any breach of any of the Seller's representations and warranties
contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the use,
ownership, or operation by the Seller or any Affiliate thereof of a
Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all taxes, except for taxes on the net
income of the Purchaser, that may at any time be asserted against the
Purchaser with respect to the transactions contemplated herein and in the
Yield Supplement Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege, or
license taxes and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages,
claims and liabilities to the extent that such cost, expense, loss, damage,
claim or liability arose out of, or was imposed upon the Purchaser through,
the negligence, willful misfeasance, or bad faith of the Seller in the
performance of its duties under this Agreement or the Yield Supplement
Agreement, as the case may be, or by reason of reckless disregard of the
Seller's obligations and duties under the Agreement or the Yield Supplement
Agreement, as the case may be.
(e) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against all costs, expenses, losses, damages, claims and
liabilities arising out of or incurred in connection with the acceptance or
performance of the Seller's trusts and duties as Servicer under the Sale
and Servicing Agreement, except to the extent that such cost, expense,
loss, damage, claim or liability shall be due to the willful misfeasance,
bad faith, or negligence (except for errors in judgment) of the Purchaser.
These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
Section 5.5 Sale. The Seller agrees to treat this conveyance for
all purposes (including without limitation tax and financial accounting
purposes) as an absolute transfer on all relevant books, records, tax
returns, financial statements and other applicable documents.
Section 5.6 Transfer of Subsequent Receivables. On or prior to
each Determination Date during the 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 into the Negative
Carry 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 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 Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Seller and the Purchaser;
provided, however, that any such amendment that materially adversely
affects the rights of the Noteholders or the Certificateholders under the
Indenture, Sale and Servicing Agreement or Trust Agreement shall be
consented to by the Holders of Notes evidencing not less than 51% of the
then Outstanding Notes and the Holders of Certificates evidencing not less
than 51% of the Certificate Balance.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement may be amended by the Seller and the Purchaser, but without
the consent of any of the Holders to add, modify or eliminate such
provisions as may be necessary or advisable in order to (a) cure any
ambiguity, to revise, correct or supplement any provisions herein, (b)
enable the transfer to the Trust of all or any portion of the Receivables
to be derecognized by the Seller under GAAP, (c) enable the Trust to avoid
becoming a member of the Seller's consolidated group under GAAP or (d)
enable the Transferor or any Affiliate of the Transferor or any of their
Affiliates to otherwise comply with or obtain more favorable treatment
under any law or regulation or any accounting rule or principle; provided,
however, it shall be a condition to any such amendment that the Rating
Agency Condition be met; and provided, further, that no such amendment
shall be inconsistent with the derecognition by the Seller of the
Receivables under GAAP or cause the Purchaser to become a member of the
Seller's consolidated group under GAAP.
Section 6.6 Accountants' Letters.
(a) Ernst & Young LLP will perform certain procedures regarding
the characteristics of the Receivables described in the Schedule of 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.
(b) Seller will cooperate with the Purchaser and Ernst & Young
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the procedures set forth
in Section 6.6(a) above and to deliver the letters required of them under
the Underwriting Agreement.
(c) Ernst & Young LLP will deliver to the Purchaser a letter,
dated the date of the Prospectus, in the form previously agreed to by the
Seller and the Purchaser, with respect to the financial and statistical
information contained in the Prospectus under the captions "Delinquency
Experience," "Net Credit Loss and Repossession Experience" and "Contracts
Providing for Balloon Payments: Loss Experience on Returned Vehicles," and
with respect to such other information as may be agreed in the forms of
such letters.
Section 6.7 Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
any Assignment shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy.
Section 6.8 Notices. All communications and notices pursuant
hereto to either party shall be in writing or by confirmed facsimile and
addressed or delivered to it at its address shown in the opening portion of
this Agreement or at such other address as may be designated by it by
notice to the other party and, if mailed or sent by facsimile, shall be
deemed given when mailed or when electronic confirmation of the facsimile
is received.
Section 6.9 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and
interest in, to and under the Receivables and the enforcement of any
obligation of the Seller hereunder.
Section 6.10 Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by
the Seller and the Purchaser set forth in or made pursuant to this
Agreement shall remain in full force and effect and will survive the
Closing.
Section 6.11 Confidential Information. The Purchaser agrees that
it will neither use nor disclose to any Person the names and addresses of
the Obligors, except in connection with the enforcement of the Purchaser's
rights hereunder, under the Receivables, the Sale and Servicing Agreement
or as required by law.
Section 6.12 Headings and Cross-References. The various headings
in this Agreement are included for convenience only and shall not affect
the meaning or interpretation of any provision of this Agreement.
References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
SECTION 6.13 GOVERNING LAW. THIS AGREEMENT AND EACH ASSIGNMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHOULD BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 6.14 Agreements of Purchaser.
(a) The Purchaser will not commingle any of its assets with those
of the Seller or the ultimate parent of the Purchaser.
(b) The Purchaser will maintain separate corporate records and
books of account from those of the Seller or the ultimate parent of the
Purchaser.
(c) The Purchaser will conduct its business from an office
separate from the Seller or the ultimate parent of the Purchaser.
Section 6.15 Counterparts. This Agreement may be executed in two
or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
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
Dated: __________, _____
For value received, in accordance with the Purchase
Agreement, dated as of __________, _____, between the undersigned and MMCA
AUTO RECEIVABLES TRUST (the "Purchaser") (as amended, supplemented or
otherwise modified and in effect from time to time, the "Purchase
Agreement"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the Purchase Agreement), all right, title and interest of
the undersigned, whether now owned or hereafter acquired, in, to and under
the following, collectively:
(i) the Initial Receivables;
(ii) with respect to Initial Receivables that are Actuarial
Receivables, monies due thereunder after the Initial
Cutoff Date (including Payaheads) and, with respect to
Initial Receivables that are Simple Interest Receivables,
monies received thereunder 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.
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
Dated: __________, _____
For value received, in accordance with the Purchase Agreement,
dated as of __________, _____, between the undersigned and MMCA AUTO
RECEIVABLES TRUST (the "Purchaser") (as amended, supplemented or otherwise
modified and in effect from time to time, the "Purchase Agreement"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse (subject to the obligations in the Purchase
Agreement), all right, title and interest of the undersigned, whether now
owned or hereafter acquired, in, to and under the following, collectively:
(i) the 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 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 (to Exhibit A-2)
SCHEDULE OF SUBSEQUENT RECEIVABLES PROVIDED TO THE
INDENTURE TRUSTEE ON THE SUBSEQUENT CLOSING DATE, WHICH
MAY BE ON COMPUTER TAPE, COMPACT DISK, OR MICROFICHE
Exhibit B
SCHEDULE OF INITIAL RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPACT DISK OR MICROFICHE
Schedule A
Locations of Receivables Files
Corporate Xxxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
National Service Center
00000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
