$---------------
MMCA AUTO OWNER TRUST 2001-3
$_____________ _____% CLASS A-1 ASSET BACKED NOTES
$_____________ FLOATING RATE CLASS A-2 ASSET BACKED NOTES
$_____________ FLOATING RATE CLASS A-3 ASSET BACKED NOTES
$_____________ FLOATING RATE CLASS A-4 ASSET BACKED NOTES
$_____________ FLOATING RATE CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
October __, 2001
X.X. Xxxxxx Securities Inc.
as Representative of the several Underwriters
000 Xxxx Xxxxxx
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 2001-3 (the "Trust") to issue and sell to the several underwriters
named in Schedule A hereto (the "Underwriters"), acting severally and not
jointly, for whom X.X. Xxxxxx Securities Inc. ("JPMorgan") is acting as
representative (the "Representative"), $___________ aggregate principal
amount of _______% Class A-1 Asset Backed Notes (the "Class A-1 Notes"),
$___________ aggregate principal amount of Floating Rate Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $___________ aggregate principal
amount of Floating Rate Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $___________ 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 $___________ aggregate principal amount of Floating Rate 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
October 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 $___________ aggregate principal
amount of certificates of beneficial interest (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
October 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. Capitalized terms used but not defined herein
have the meanings ascribed thereto in the Sale and Servicing Agreement,
dated as of October 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 October 1,
2001 (the "Purchase Agreement"), between MMCA, as seller, and the Seller,
as purchaser, as the case may be.
The assets of the Trust will include, among other things, (i) a
pool of motor vehicle retail installment sale contracts secured by new and
used automobiles and sport-utility vehicles to be conveyed to the Trust on
the Closing Date (as such term is defined in Section 3) (the "Initial
Receivables") and from time to time thereafter during the Pre-Funding
Period (the "Subsequent Receivables" and, together with the Initial
Receivables, the "Receivables"), (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"). The term "Basic Documents" means (i)
the Indenture, (ii) the Trust Agreement, (iii) the First Tier Initial
Assignment, dated as of October 1, 2001 (the "First Tier Initial
Assignment"), as executed by MMCA, (iv) any First Tier Subsequent
Assignment (as defined in the Purchase Agreement); (v) the Sale and
Servicing Agreement, (vi) the Purchase Agreement, (vii) the Certificate of
Trust, filed _________, 2001 (the "Certificate of Trust"), with the
Secretary of State of the State of Delaware, (viii) the Administration
Agreement, dated as of October 1, 2001 (the "Administration Agreement"),
among MMCA, as administrator (the "Administrator"), the Trust and the
Indenture Trustee, (ix) the Note Depository Agreement, dated as of October
1, 2001 (the "Note Depository Agreement"), among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, (x) the Yield
Supplement Agreement, dated as of October 1, 2001 (the "Yield Supplement
Agreement"), between the Seller and MMCA, (xi) the Control Agreement, dated
as of October 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 (xii) the ISDA Master
Agreement, dated October __, 2001, including the schedule and each
confirmation relating to the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class B Notes (collectively, the "Interest Rate
Swap Agreement"), between the Trust and The Chase Manhattan Bank, as swap
counterparty (the "Swap Counterparty"). "Transfer Date" means, with respect
to an Initial Receivable, the Closing Date, and with respect to a
Subsequent Receivable, the related Subsequent Transfer Date. The Seller
hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Seller. The Seller represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-65052) 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 have
been filed in the appropriate offices prior to 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 related Transfer Dates will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(p) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance
except for any tax lien, mechanics' lien or other lien or encumbrance
that attaches by operation of law.
(q) The Computer Tape of the Receivables created as of the related
Transfer Dates and made available to the Representative by the
Servicer are or will be, as applicable, complete and accurate as of
the 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 respective principal amounts of each Class of
Notes set forth opposite the names of the Underwriters in Schedule A hereto
at a purchase price of, in the case of the (i) Class A-1 Notes,
___________% of the principal amount thereof; (ii) Class A-2 Notes,
___________% of the principal amount thereof; (iii) Class A-3 Notes,
___________% of the principal amount thereof; (iv) Class A-4 Notes,
___________% of the principal amount thereof; and (v) Class B Notes,
___________% of the principal amount thereof.
The Seller will deliver against payment of the purchase price
therefor, the Notes of each Class in the form of one or more permanent
global securities in definitive form (the "Global Notes") deposited with
the Indenture Trustee as custodian for 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, Four Times Square, New York, New York 10036 at
10:00 a.m., New York time, on October __, 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 October __, 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 the Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment of or supplement to
the Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Seller will promptly notify the Representative of such event and
will promptly prepare and file with the Commission (subject to the
Representative's prior review and consent pursuant to Section 5(b)),
at its own expense, an amendment or supplement which will correct such
statement or omission, or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Seller will cause the Trust to make
generally available to Noteholders an earnings statement of the Trust
covering a period of at least 12 months beginning after the Effective
Date which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means
the 90th day after the end of the Trust's fourth fiscal quarter
following the fiscal quarter that includes such Effective Date.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include
all exhibits), each related preliminary prospectus and, so long as
delivery of a prospectus relating to the Notes is required under the
Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representative requests. The Prospectus shall be so furnished on or
prior to 3:00 p.m., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time. All other such documents shall be so furnished as soon as
available. The Seller will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative
designates and will continue such qualifications in effect so long as
required for the distribution of the Notes.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other Underwriters,
copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee pursuant to Section 3.9 of the
Indenture and Sections 3.9 and 3.10 of the Sale and Servicing
Agreement and the annual independent certified public accountant's
servicing reports furnished to the Indenture Trustee pursuant to
Section 3.11 of the Sale and Servicing Agreement, by first-class mail
as soon as practicable after such statements and reports are furnished
to the Indenture Trustee, and (ii) such other forms of periodic
certificates or reports as may be delivered to the Indenture Trustee,
the Owner Trustee or the Noteholders under the Indenture, the Trust
Agreement, the Sale and Servicing Agreement or the other Basic
Documents.
(h) So long as any Note is outstanding, the Seller will furnish to
the Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Seller to
Noteholders, (ii) all documents filed, or caused to be filed, by the
Seller with the Commission pursuant to the Exchange Act, any order of
the Commission thereunder and (iii) such other information in the
possession of the Seller concerning the Trust as the Representative
from time to time may reasonably request.
(i) The Seller will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Notes for
sale and determination of their eligibility for investment under the
laws of such jurisdictions as the Representative designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the Seller's officers and employees and any other expenses
of the Seller in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with respect
to the Notes by Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), Standard
& Poor's, a Division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
Poor's") and Fitch, Inc. ("Fitch" and, together with Xxxxx'x and
Standard & Poor's, the "Rating Agencies") is conditional upon the
furnishing of documents or the taking of any other action by the
Seller, the Seller shall furnish such documents and take any such
other action.
(k) On or before each Transfer Date, the Seller shall cause the
computer records of the Seller and MMCA relating to the Receivables to
be conveyed to the Trust on such Transfer Date to be marked to show
the Trust's absolute ownership of the Receivables and from and after
the related Transfer Date neither the Seller nor MMCA shall take any
action inconsistent with the Trust's ownership of such Receivables
other than as permitted by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Notes on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Seller herein, to the accuracy of the
statements of the Seller's officers made pursuant to the provisions hereof,
to the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Ernst
& Young LLP, in form and substance satisfactory to the Representative
and counsel for the Underwriters, confirming that they are independent
public accountants within the meaning of the Act and the applicable
Rules and Regulations and stating in effect that they have performed
certain specified procedures (i) as a result of which they determined
that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Trust,
MMCA and the Seller) set forth in the Registration Statement and the
Prospectus (and any supplements thereto), agrees with the accounting
records of the Trust, MMCA and the Seller, excluding any questions of
legal interpretation, and (ii) with respect to the Receivables.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or
such later date as shall have been consented to by the Representative.
If the Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a). Prior to
the Closing Date, no stop order or other order of the Commission
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Representative,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations or retail motor
vehicle financing business or sport-utility vehicle financing business
of the Trust, the Seller, Mitsubishi Motor Sales of America, Inc.,
Mitsubishi Motors Corporation or MMCA which, in the judgment of a
majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of each
Class of Notes or makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each
Class of Notes on the terms and in the manner contemplated in the
Prospectus; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iii) any banking moratorium
declared by Federal, California or New York authorities; 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) X.
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, and to consummate the
transactions contemplated hereby and thereby and had at all times,
and now has, the power, authority and legal right to acquire, own
and sell the Receivables;
(ii) MMCA has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; MMCA is
duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification; and MMCA has
full power and authority to enter into and perform its obligations
under the Note Indemnification Agreement, dated October __, 2001
(the "Note Indemnification Agreement"), between MMCA and the
Representative and the Basic Documents to which it is a party and
to consummate the transactions contemplated hereby and thereby and
had at all times, and now has, the power, authority and legal
right to acquire, own, sell and service the Receivables;
(iii) each of the direction by the Seller to the Owner
Trustee to execute the Notes and the direction by the Seller to
the Indenture Trustee to authenticate and deliver the Notes has
been duly authorized by the Seller and, when the Notes have been
duly executed by the Owner Trustee and, when authenticated and
delivered by the Indenture Trustee in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, the Notes will be duly and validly
issued and outstanding 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 Delaware 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 have
been filed in the appropriate offices prior to 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 Initial Assignment, MMCA was the sole owner of all right,
title and interest in, to and under the Receivables and the other
property to be transferred by it to the Seller; immediately prior
to the sale of the Receivables by the Seller to the Trust pursuant
to the Sale and Servicing Agreement, the Seller was the sole owner
of all right, title and interest in, to and under the Receivables
and the other property to be sold by it to the Trust.
(e) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Seller and
MMCA, dated the Closing Date, and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that:
(i) each Initial Receivable is a motor vehicle retail
installment sales contract that constitutes "chattel paper" as
defined in Section 9-102 of the UCC in effect in the States of New
York and Delaware;
(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 Initial 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 Delaware 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 Initial 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 Initial 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
Initial 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 Initial 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 Initial 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 Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Seller,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that
for federal income tax purposes (i) the Notes will be characterized as
indebtedness of the Trust, (ii) the Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation
and (iii) the statements set forth in the Prospectus under the
headings "SUMMARY OF TERMS--Tax Status", "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 Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Seller,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that
(i) for California 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
_________, 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 Xxxxxx 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 and of MMCA in the Note Indemnification
Agreement are true and correct, as applicable; the Seller or MMCA, as
applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; the representations and warranties of the
Seller or MMCA, as applicable, in the Basic Documents are true and
correct as of the dates specified in such agreements; the Seller or
MMCA, as applicable, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date; no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; and, subsequent to the date of the Prospectus,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or otherwise), business, properties or results of
operations of the Seller or MMCA or their respective businesses except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(k) The Representative shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx XXX, 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 under ss. 9-324
of the Delaware UCC and temporarily perfected security interests
in proceeds underss. 9-315 of the Delaware UCC;
(iv) no re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals;
(v) assuming that the Notes have been duly executed by the
Owner Trustee on behalf of the Trust, and assuming that the Notes
have been duly authenticated by the Indenture Trustee, when the
Notes have been delivered in accordance with the Indenture, the
Notes will be validly issued and entitled to the benefits of the
Indenture;
(vi) assuming that the Certificates have been duly
authorized, executed and authenticated by the Owner Trustee on
behalf of the Trust, when the Certificates have been issued and
delivered in accordance with the instructions of the Seller, the
Certificates will be validly issued and entitled to the benefits
of the Trust Agreement; and
(vii) under 12 Del. C. ss. 3805(b), no creditor of any
Certificateholder (including creditors of the Seller in its
capacity as Certificateholder) shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement.
(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 Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Seller, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, (i) with respect to
the characterization of the transfer of the Receivables by MMCA to the
Seller and from the Seller to the Trust and (ii) to the effect that
should MMCA become the debtor in a case under the Bankruptcy Code, and
the Seller would not otherwise properly be a debtor in a case under
the Bankruptcy Code, and if the matter were properly briefed and
presented to a court exercising bankruptcy jurisdiction, the court,
exercising its judgment after full consideration of all relevant
factors, would not order, over the objection of the Certificateholders
or the Noteholders, the substantive consolidation of the assets and
liabilities of the Seller with those of MMCA and such opinion shall be
in substantially the form previously discussed with the Representative
and counsel for the Underwriters and in any event satisfactory in form
and in substance to the Representative and counsel for the
Underwriters.
(p) The Representative shall have received evidence satisfactory
to it and counsel for the Underwriters that, prior to the Closing
Date, UCC-1 financing statements have been filed in the office of the
Secretary of State of the State of Delaware reflecting (i) the
transfer of the interest of MMCA in the Receivables and the proceeds
thereof to the Seller and the transfer of the interest of the Seller
in the Receivables and the proceeds thereof to the Trust and (ii) the
grant of the security interest by the Trust in the Receivables and the
proceeds thereof to the Indenture Trustee.
(q) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Trust, dated
the Closing Date and satisfactory in form and substance to the
Representative and the counsel for the Underwriters to the effect that
(i) the provisions of the Indenture are effective to create a valid
security interest in favor of the Indenture Trustee, to secure payment
of the Notes, in all "securities entitlements" (as defined in Section
8-102(a)(17) of the New York UCC) with respect to "financial assets"
(as defined in Section 8-102(a)(9) of the New York UCC) now or
hereafter credited to the Reserve Account or to the Yield Supplement
Account (such securities entitlements, the "Securities Entitlements"),
(ii) the provisions of the control agreement for purposes of Article 8
of the New York UCC are effective to perfect the security interest of
the Indenture Trustee in the Securities Entitlements and (iii) no
security interest of any other creditor of the Trust will be prior to
the security interest of the Indenture Trustee in such Securities
Entitlements.
(r) The Class A-1 Notes shall have been rated "Prime-1", "A-1+"
and "F1+" by Xxxxx'x, Standard & Poor's and Fitch, respectively. The
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been
rated "Aaa", "AAA" and "AAA" by Xxxxx'x, Standard & Poor's and Fitch,
respectively, and the Class B Notes shall have been rated at least
"A2", "A" and "A" by Xxxxx'x, Standard & Poor's and Fitch,
respectively.
(s) The Representative shall have received a letter, dated the
Closing Date, of Xxxxx & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to the Closing Date for purposes of this subsection.
(t) On the Closing Date, the Certificates shall have been issued
to the Seller.
(u) The Representative shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and each other counsel for the Seller, a
letter dated the Closing Date to the effect that the Underwriters may
rely upon each opinion rendered by such counsel to any Rating Agency
in connection with the rating of any Class of Notes, as if each such
opinion were addressed to the Underwriters.
(v) The Representative shall receive from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, and each other counsel for the Seller, reliance
letters with respect to each opinion of counsel required to be
delivered to any Rating Agency in connection with each transfer to the
Trust of Subsequent Receivables.
The Seller will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
--------------------------------
(a) The Seller will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Seller
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section (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 Section (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
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section, notify the indemnifying party of the
claim or the commencement of that action; provided, however, that the
failure to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under Section 7(a) or (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 Section 7(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 Section 7(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 Section (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 X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: _____________, or, if sent to
the Seller, will be mailed, delivered or sent by facsimile and confirmed to
it at P.O. Box 6038, Cypress, California 90630-5205, Attention:
Secretary/Treasurer, Telecopy: (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
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:
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXX SECURITIES INC.
By:
------------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule A hereto
SCHEDULE A
Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriters Notes Notes Notes Notes Notes
------------ --------- --------- --------- --------- ----------
X.X. Xxxxxx Securities Inc............ $ $ $ $ $
--------------------..................
--------------------..................
--------------------..................
--------------------..................
Total $ $ $ $ $
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