Exhibit 10.1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of January __, 1999 (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, INC., a Delaware corporation (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 light- and medium-duty trucks from motor
vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Initial Receivables (such capitalized term and the
other capitalized terms used herein have the meanings assigned thereto
pursuant to Article I hereof) and certain additional property related
thereto are to be sold by the Seller to the Purchaser on the Closing Date
and the Subsequent Receivables and certain additional property related
thereto are to be sold by the Seller to the Purchaser from time to time
during the Pre-Funding Period, which Receivables and other property related
thereto will be sold by the Purchaser, pursuant to the Sale and Servicing
Agreement, to the MMCA Auto Owner Trust 1999-1 to be created pursuant to
the Trust Agreement, which Trust will issue notes secured by such
Receivables and certain other property of the Trust, pursuant to the
Indenture, and certificates representing interests in certain property of
the Trust, pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Terms not defined in this Agreement shall have the meaning set
forth in, or incorporated by reference into, the Sale and Servicing
Agreement or, if not defined therein, in the Indenture. As used in this
Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms of the terms defined):
"Agreement" shall have the meaning specified in the recitals
hereto.
"Assignment" shall mean, for purposes of this Agreement, the
First-Tier Initial Assignment or any First-Tier Subsequent Assignment, as
the context may require.
"Closing" shall have the meaning specified in Section 2.3.
"Closing Date" shall mean January __, 1999.
"Cutoff Date" shall mean the Initial Cutoff Date or any
Subsequent Cutoff Date, as the context may require.
"First-Tier Initial Assignment" shall mean the document of
assignment in substantially the form attached to this Agreement as Exhibit
A-1.
"First-Tier Subsequent Assignment" shall mean any document of
assignment in substantially the form attached to this Agreement as Exhibit
A-2.
"Indenture" shall mean the Indenture, dated as of January __,
1999, between the Trust and Bank of Tokyo - Mitsubishi Trust Company, a New
York banking corporation, as Indenture Trustee, as the same may from time
to time be amended, supplemented or otherwise modified and in effect.
"Initial Cutoff Date" shall mean January 1, 1999.
"Initial Receivable" shall mean, for purposes of this Agreement,
each motor vehicle retail installment sale contract described in the
Schedule of Initial Receivables attached hereto as Exhibit B and all rights
and obligations thereunder and any amendments, modifications or supplements
to such motor vehicle retail installment sale contract.
"Initial Receivables Purchase Price" shall mean $[ ].
"Officer's Certificate" shall mean, for purposes of this
Agreement, a certificate signed by the chairman, the president, any
executive vice president, vice president or the treasurer of the Seller,
and delivered to the Purchaser.
"Prospectus" shall have the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" shall mean MMCA Auto Receivables, Inc., a Delaware
corporation, and its successors and assigns.
"Receivable" shall mean, for purposes of this Agreement, any
Initial Receivable or Subsequent Receivable, as the context may require.
"Relevant UCC" shall mean the Uniform Commercial Code, as in
effect from time to time in the relevant jurisdictions.
"Repurchase Event" shall have the meaning specified in Section
6.2.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of January __, 1999, among Mitsubishi Motors Credit of
America, Inc., as servicer, the Purchaser, as seller, and the Trust, as
purchaser, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"Schedule of Initial Receivables" shall mean, for purposes of
this Agreement, the list of Initial Receivables (which list may be in the
form of microfiche or compact disk) annexed hereto as Exhibit B.
"Schedule of Receivables" shall mean, for purposes of this
Agreement, the Schedule of Initial Receivables or any Schedule of
Subsequent Receivables, as the context may require.
"Schedule of Subsequent Receivables" shall mean, for purposes of
this Agreement, any list of Subsequent Receivables (which list may be in
the form of microfiche or compact disk) attached as Schedule A to the
related First-Tier Subsequent Assignment.
"Seller" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"Subsequent Cutoff Date", with respect to any Subsequent
Receivable, shall have the meaning specified in the related First-Tier
Subsequent Assignment.
"Subsequent Receivable" shall mean, for purposes of this
Agreement, each motor vehicle retail installment sale contract described in
a Schedule of Subsequent Receivables attached as Schedule A to a First-Tier
Subsequent Assignment and all rights and obligations thereunder and any
amendments, modifications or supplements to such motor vehicle retail
installment sale contract.
"Subsequent Receivables Purchase Price" shall have the meaning
specified in Section 2.2(a).
"Subsequent Transfer Date" shall mean, with respect to any
Subsequent Receivable, the Business Day during the Pre-Funding Period on
which such Subsequent Receivable is to be conveyed by the Seller to the
Purchaser pursuant to Section 2.1(b) and the related First-Tier Subsequent
Assignment is executed and delivered by the Seller to the Purchaser
pursuant to Section 4.1(b)(iii)(A).
"Trust" shall mean the MMCA Auto Owner Trust 1999-1 created by
the Trust Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of January __, 1999, between the Purchaser, as
depositor, and Wilmington Trust Company, as Owner Trustee, as the same may
be from time to time amended, supplemented or otherwise modified and in
effect.
"Underwriting Agreement" shall mean the Underwriting Agreement,
dated January __, 1999 by and between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as representative of the several underwriters, and the
Purchaser, as the same may be from time to time amended, supplemented or
otherwise modified and in effect.
"Yield Supplement Agreement" shall mean the Yield Supplement
Agreement to be entered into by the Seller and the Purchaser on the Closing
Date, as the same may be from time to time amended, supplemented or
otherwise modified and in effect.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
On the Closing Date and each Subsequent Transfer Date, subject to
the terms and conditions of this Agreement, the Seller agrees to sell to
the Purchaser, and the Purchaser agrees to purchase from the Seller, the
Receivables set forth in the related Schedule of Receivables and the other
property relating thereto (as described below).
(a) Sale of Initial Receivables. On the Closing Date, and
simultaneously with the transactions to be consummated pursuant to the
Indenture, the Sale and Servicing Agreement and the Trust Agreement, the
Seller shall sell, transfer, assign and otherwise convey to the Purchaser,
without recourse (subject to the obligations herein), all right, title and
interest of the Seller, whether now owned or hereafter acquired, in, to and
under the following, collectively: (i) the Initial Receivables; (ii) with
respect to Initial Receivables that are Actuarial Receivables, monies due
thereunder on or after the Initial Cutoff Date (including Payaheads) and,
with respect to Initial Receivables that are Simple Interest Receivables,
monies received thereunder on or after the Initial Cutoff Date; (iii) the
security interests in Financed Vehicles granted by Obligors pursuant to the
Initial Receivables and any other interest of the Seller in such Financed
Vehicles; (iv) 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) 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) 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 repurchased by the Servicer or purchased by the
Seller); (ix) 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.
(b) Sale of Subsequent Receivables. Subject to
satisfaction of the conditions set forth in Section 4.1(b), the Seller
shall 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 the 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 the Subsequent Receivables and any
other interest of the Seller in such Financed Vehicles; (iv) rights to
receive proceeds with respect to the Subsequent Receivables from claims on
any physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) rights to
receive proceeds with respect to the 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 the Subsequent
Receivables; (vii) payments and proceeds with respect to the 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 repurchased by the Servicer or purchased by the Seller); (ix)
rebates of premiums and other amounts relating to insurance policies and
other items financed under the 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 the Subsequent Receivables and the other property
described in clauses (i) through (x) of this Section 2.1(b) shall
constitute a sale of the Subsequent Receivables and such other property
from the Seller to the Purchaser, conveying good title thereto free and
clear of any liens, and the Subsequent 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.
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 the related Subsequent Transfer
Date, pay to or upon the order of the Seller an amount (the related
"Subsequent Receivables Purchase Price") equal to the aggregate Principal
Balance of the Subsequent Receivables as of the related Subsequent Cutoff
Date, plus any premium or minus any discount agreed upon by the Seller and
the Purchaser. Any Subsequent Receivables Purchase Price shall be payable
as follows: (i) cash in the amount released to the Purchaser from the
Pre-Funding Account pursuant to Section 4.8(a) of the Sale and Servicing
Agreement shall be paid to or upon the order of the Seller on the related
Subsequent Transfer Date by federal wire transfer (same day funds) and the
balance paid in cash as and when amounts are released to, or otherwise
realized by, the Purchaser from the Reserve Account and the Negative Carry
Account in accordance with the Sale and Servicing Agreement; or (ii) as
otherwise agreed by the Seller and the Purchaser.
SECTION 2.3. The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 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 to the underwriters named therein
the Notes.
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 and as of the Closing Date and as of each Subsequent Transfer Date:
(a) Organization, etc. The Purchaser 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 had at all
relevant times, and has, the power, authority and legal right to acquire
and own the Receivables, and has full corporate 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 corporation 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, the certificate of incorporation or bylaws of the Purchaser, 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 do not (i) assert
the invalidity of this Agreement, (ii) seek to prevent the consummation of
any of the transactions contemplated by this Agreement and (iii) seek any
determinations or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity and
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 and as of 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 has been or will be on or before the
related Subsequent Transfer Date, duly authorized, executed and
delivered by the Seller, and in each case shall constitute the legal,
valid, binding and enforceable obligation of the Seller except as the
same may be limited by insolvency, bankruptcy, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or
by general equity principles.
(iii) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the consummation of
the transactions contemplated hereby and the fulfillment of the terms
hereof will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, the certificate of
incorporation or bylaws of the Seller, or conflict with, or breach any
of the terms or provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller is a
party or by which the Seller is bound or any of its properties are
subject, or result in the creation or imposition of any lien upon any
of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than
this Agreement), or violate any law, order, rule or regulation,
applicable to the Seller or its properties, of any federal or state
regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or
any of its properties.
(iv) No Proceedings. No proceedings or investigations are
pending to which the Seller is a party or of which any property of the
Seller is the subject, and, to the best knowledge of the Seller, no
such proceedings or investigations are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings or investigations which will not have a material adverse
effect upon the general affairs, financial position, net worth or
results of operations (on an annual basis) of the Seller and do not
(i) assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement
and (iii) seek any determinations or ruling that might materially and
adversely affect the performance by the Seller of its obligations
under, or the validity and 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
execution and delivery of this Agreement 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 (x) originated 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) originated by the
Seller in connection with the refinancing by the Seller of a motor
vehicle retail installment sales 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 in
the related Financed Vehicle, which security interest shall be
assignable by the Seller to the Purchaser, (c) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for realization against the
collateral of the benefits of the security, (d) in the case of
Standard Receivables, shall provide for level monthly payments
(provided that the payment in the last month in the life of the
Receivable may be different from the level payment) that fully
amortize the Amount Financed by maturity and yield interest at the
APR, (e) in the case of Final Payment Receivables, shall provide for a
series of fixed level monthly payments and a larger payment due after
such level monthly payments that fully amortize the Amount Financed by
maturity and yield interest at the APR, (f) shall provide for, in the
event that such contract is prepaid, a prepayment that fully pays the
Principal Balance, (g) is a retail installment sales contract, (h) is
secured by a new or used automobile or light- or medium-duty truck,
and (i) is an Actuarial Receivable or a Simple Interest Receivable
(and may also be a Final Payment Receivable).
(ii) Schedule of Receivables. The information set forth in
the related Schedule of Receivables shall be true and correct in all
material respects as of the opening of business on the related Cutoff
Date, and no selection procedures believed to be adverse to the
Noteholders or the Certificateholders shall have been utilized in
selecting the Receivables from those receivables which meet the
criteria contained herein. The compact disk or other listing
regarding the Receivables made available to the Purchaser and its
assigns 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 at the execution of this
Agreement (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, M 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 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 the Financed
Vehicle for the benefit of the Purchaser and the Trust, respectively
(subject to any statutory or other lien arising by operation of law
after the Closing Date (with respect to each Initial Receivable) or
the related Subsequent Transfer Date (with respect to each Subsequent
Receivable) which is prior to such security interest).
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle
have been released from the Lien granted by the related Receivable in
whole or in part, which security interest is assignable from 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 thirty (30) days or payment
defaults of 10% or less of a 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 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. The Seller, in accordance with its
customary procedures, shall have determined whether or not the Obligor
has maintained physical damage insurance (which insurance shall not be
force placed insurance) covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that each
transfer and assignment of 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 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 account debtor that
prohibits, restricts or conditions the assignment of any portion of
the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, filings under the Relevant UCC) necessary in any
jurisdiction to give the Purchaser a first priority perfected security
interest in the Receivables shall be made within ten (10) days of the
Closing Date (with respect to the Initial Receivables) or ten (10)
days of the related Subsequent Transfer Date (with respect to the
Subsequent Receivables).
(xvi) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the Relevant UCC.
(xvii) One Original. There shall be only one original
executed copy of each Receivable in existence.
(xviii) Principal Balance. Each Receivable had an original
principal balance (net of unearned precomputed finance charges) of not
more than $60,000, and a remaining Principal Balance as of the related
Cutoff Date of not less than $100.
(xix) No Bankrupt Obligors. None of the Receivables shall
be due from any 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
Pool Balance of the Initial Receivables, constituting approximately [
]% of the total number of the Initial Receivables, as of the
Initial Cutoff Date, relate to new automobiles and light- or medium-
duty trucks financed at new vehicle rates. Approximately [ ]% of
the Pool Balance of the Initial Receivables, constituting
approximately [ ]% of the total number of Initial Receivables, as
of the Initial Cutoff Date, relate to used automobiles and light- or
medium-duty trucks. Approximately [ ]% of the Pool Balance of
the Initial Receivables, constituting approximately [ ]% of the
total number of the Initial Receivables, as of the Initial Cutoff
Date, relate to program automobiles and light-duty trucks manufactured
in the current and immediately preceding model years which are
financed at new vehicle rates. Approximately [ ]% of the Pool
Balance of the Initial Receivables, constituting approximately [
]% of the total number of Initial Receivables as of the Initial Cutoff
Date, relate to refinanced program automobiles and light- or medium-
duty trucks manufactured in prior model years which are financed at
the original rates set forth in the related Contracts or at used
vehicle rates.
(xxi) Origination. Each Receivable shall have an
origination during or after [ ].
(xxii) Maturity of Receivables. Each Receivable shall have
a remaining maturity, as of the related Cutoff Date, of not more than
sixty-one (61) months, and an original maturity of not more than
sixty-one (61) months.
(xxiii) Weighted Average Remaining Maturity of
Receivables. The weighted average remaining maturity of the
Receivables as of the Closing Date and each Subsequent Transfer Date
(after giving effect to the Subsequent Receivables sold to the
Purchaser on such Subsequent Transfer Date pursuant to Section 2.1(b))
shall not be more than [ ] months.
(xxiv) Annual Percentage Rate. Each Receivable shall have
an APR of at least 0% and not more than 30%.
(xxv) Scheduled Payments. Each Receivable shall have a
first Scheduled Payment due on or prior to [ ], and 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 Initial Receivables
contained in the Prospectus and is true and correct in all material
respects.
(xxix) Last Scheduled Payments. The average Last Scheduled
Payment of the Final Payment Receivables as of the Closing Date and
each Subsequent Transfer Date as a percentage of the aggregate
original Principal Balances of the Final Payment Receivables (after
giving effect to the Final Payment Receivables sold to the Purchaser
on such Subsequent Transfer Date pursuant to Section 2.1(b)), in each
case as of the related dates of origination, shall not be 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 Receivable, assuming that future
Scheduled Payments on such Receivable are made on their scheduled due
dates, has been deposited to the Yield Supplement Account on or prior
to the Closing Date or the related Subsequent Transfer Date.
ARTICLE IV
CONDITIONS
SECTION 4.1. Conditions to Obligations of the Purchaser.
(a) Initial Receivables. The obligation of the Purchaser
to purchase the Initial Receivables is subject to the satisfaction of the
following conditions:
(i) Representations and Warranties True. The
representations and warranties of the Seller hereunder shall be true
and correct on the Closing Date with the same effect as if then made,
and the Seller shall have performed all obligations to be performed by
it hereunder on or prior to the Closing Date.
(ii) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that the Initial Receivables have been sold to the Purchaser
pursuant to this Agreement and 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.
(A) The First-Tier Initial Assignment. At the
Closing, the Seller will execute and deliver the First-Tier
Initial Assignment in substantially the form of Exhibit A-1
hereto.
(B) The Yield Supplement Agreement. At the
Closing, the Seller will execute and deliver the Yield
Supplement Agreement. The Yield Supplement Agreement shall
be substantially in the form of Exhibit D to the Sale and
Servicing Agreement.
(C) Evidence of UCC Filing. Within ten (10)
days of the Closing Date, the Seller shall record and file,
at its own expense, a UCC-1 financing statement in each
jurisdiction in which required by applicable law, executed
by the Seller, as seller or debtor, and naming the
Purchaser, as purchaser or secured party, naming the Initial
Receivables and the other property conveyed under Section
2.1(a) as collateral, meeting the requirements of the laws
of each such jurisdiction and in such manner as is necessary
to perfect the sale, transfer, assignment and conveyance of
the Initial Receivables to the Purchaser. The Seller shall
deliver a file-stamped copy, or other evidence satisfactory
to the Purchaser of such filing, to the Purchaser within ten
(10) days of the Closing Date.
(D) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) Other Transactions. The transactions contemplated by
the Sale and Servicing Agreement, the Indenture, the Trust Agreement
and the Underwriting Agreement shall be consummated on the Closing
Date.
(b) Subsequent Receivables. The obligation of the
Purchaser to purchase any Subsequent Receivables 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(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
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.
(A) The First-Tier Subsequent Assignment. On
or prior to the related Subsequent Transfer Date, the Seller
will execute and deliver the related First-Tier Subsequent
Assignment in substantially the form of Exhibit A-2 hereto.
(B) Evidence of UCC Filing. Within ten (10)
days of the related Subsequent Transfer Date, the Seller
shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or debtor,
and naming the Purchaser, as purchaser or secured party,
naming such Subsequent Receivables and the other property
conveyed under Section 2.1(b) as collateral, meeting the
requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer,
assignment and conveyance of such Subsequent Receivables to
the Purchaser. The Seller shall deliver a file-stamped
copy, or other evidence satisfactory to the Purchaser of
such filing, to the Purchaser within ten (10) days of the
related Subsequent Transfer Date.
(C) Officer's Certificate. The Seller shall have
delivered to the Purchaser an Officer's Certificate
confirming the satisfaction of each condition precedent
specified in this Section 4.1(b) (substantially in the
form attached as Annex A to the form of First-Tier
Subsequent Assignment attached hereto as Exhibit A-2).
(D) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) As of the related Subsequent Transfer Date: (A) the
Seller was not insolvent and will not become insolvent as a result of
the transfer of such Subsequent Receivables on the related Subsequent
Transfer Date, (B) the Seller did not intend to incur or believe that
it would incur debts that would be beyond the Seller's ability to pay
as such debts matured, (C) such transfer was not made by the Seller
with actual intent to hinder, delay or defraud any Person and (D) the
assets of the Seller did not constitute unreasonably small capital to
carry out its business as conducted.
(v) No selection procedures believed by the Seller to be
adverse to the interests of the Purchaser, the Trust, the Noteholders
or the Certificateholders shall have been utilized in selecting the
Subsequent Receivables.
(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 to the Purchaser specified in Section 2.1(c) 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 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.
(b) Receivables Purchase Prices. (i) On or prior to the
Closing Date, the Purchaser shall deliver to the Seller the Receivables
Purchase Price, as provided in Section 2.2(a); and (ii) on or prior to each
Subsequent Transfer Date, the Purchaser shall deliver to the Seller the
related Subsequent Receivables Purchase Price, as provided in Section
2.2(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, that
to the extent that any provision of this Article V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain, and protect the interest of the Purchaser under this
Agreement in, to and under the Receivables and the other property conveyed
hereunder and in the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Purchaser file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Seller shall not change its name, identity, or
corporate structure in any manner that would, could, or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-402(7) of the Relevant UCC, unless it shall have given the
Purchaser at least sixty (60) days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements.
(c) The Seller shall give the Purchaser at least sixty (60)
days' prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the
Relevant UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing statement
and shall promptly file any such amendment, continuation statement or new
financing statement. The Seller shall at all times maintain each office
from which it shall service Receivables, and its principal executive
office, within the United States of America.
(d) The Seller shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so that,
from and after the time of sale hereunder of the Receivables to the
Purchaser, the Seller's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of
the Purchaser in such Receivable and that such Receivable is owned by the
Purchaser (or, upon sale of the Receivables to the Trust, by the Trust).
Indication of the Purchaser's ownership of a Receivable shall be deleted
from or modified on the Seller's computer systems when, and only when, the
Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller shall propose to sell, grant
a security interest in, or otherwise transfer any interest in any
automobile or light- or medium-duty truck receivables (other than the
Receivables) to any prospective purchaser, lender, or other transferee, the
Seller shall give to such prospective purchaser, lender, or other
transferee computer tapes, compact disks, records, or print-outs (including
any restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable
has been sold and is owned by the Purchaser or its assignee unless such
Receivable has been paid in full or repurchased.
(g) The Seller shall permit the Purchaser and its agents at
any time during normal business hours to inspect, audit, and make copies of
and abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the
Purchaser, within ten (10) Business Days, a list of all Receivables (by
contract number and name of Obligor) then owned by the Purchaser, together
with a reconciliation of such list to the Schedule of Receivables.
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. [Reserved]
SECTION 5.4. 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 5.5. 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 5.6. Sale. 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 5.7. Transfer of Subsequent Receivables. The Seller
agrees to transfer to the Purchaser, pursuant to Section 2.1(b), Subsequent
Receivables with an aggregate Principal Balance as of the related Cutoff
Dates approximately equal to $[ ], subject only to
the availability of such Subsequent Receivables.
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 5.5(a), the repurchase obligation of the Seller
shall constitute the sole remedy to the Purchaser, the Indenture Trustee,
the Owner Trustee, the Noteholders and the Certificateholders against the
Seller with respect to any Repurchase Event.
SECTION 6.3. Purchaser's Assignment of Repurchased Receivables.
With respect to all Receivables repurchased by the Seller pursuant to
Section 6.2 of this Agreement, the Purchaser shall assign, without
recourse, representation or warranty, to the Seller all the Purchaser's
right, title and interest in, to and under such Receivables, and all
security and documents relating thereto.
SECTION 6.4. Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing
Agreement, sell the Initial Receivables to the Trust on the Closing Date
and the Subsequent Receivables to the Trust on the related Subsequent
Transfer Dates and assign its rights under this Agreement and the Yield
Supplement Agreement to the Owner Trustee for the benefit of the
Noteholders and the Certificateholders, and that the representations and
warranties contained in this Agreement and the rights of the Purchaser
under this Agreement, including under Sections 6.2 and 6.3 are intended to
benefit the Trust, the Noteholders and the Certificateholders. The Seller
hereby consents to such sale and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the
Receivables and its rights under this Agreement and the Yield Supplement
Agreement to the Indenture Trustee for the benefit of the Noteholders, and
the representations and warranties contained in this Agreement and the
rights of the Purchaser under this Agreement, including under Sections 6.2
and 6.3, are intended to benefit the Noteholders. The Seller hereby
consents to such pledge.
SECTION 6.5. Amendment. This Agreement may be amended from time
to time by a written amendment duly executed and delivered by the Seller
and the Purchaser; provided, however, that any such amendment that
materially adversely affects the rights of the Noteholders or the
Certificateholders under the Indenture, Sale and Servicing Agreement or
Trust Agreement shall be consented to by the Holders of Notes evidencing
not less than 51% of the then Outstanding Notes and the Holders of
Certificates evidencing not less than 51% of the Certificate Balance.
SECTION 6.6. Accountants' Letters.
(a) Ernst & Young LLP will perform certain procedures
regarding the characteristics of the Receivables described in the Schedule
of Initial Receivables set forth as Exhibit B hereto and will compare those
characteristics to the information with respect to the Initial Receivables
contained in the Prospectus.
(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 caption
"Delinquency Experience", "Net Credit Loss and Repossession Experience" and
"Final Payment Receivables: Loss Experience on Returned Vehicles" and with
respect to such other information as may be agreed in the forms of such
letters.
SECTION 6.7. Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
any Assignment shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy.
SECTION 6.8. Notices. All communications and notices pursuant
hereto to either party shall be in writing or by confirmed facsimile or
telecopy or telex and addressed or delivered to it at its address (or in
case of telex, at its telex number at such address) shown in the opening
portion of this Agreement or at such other address as may be designated by
it by notice to the other party and, if mailed or sent by telecopy,
facsimile, or telex, shall be deemed given when mailed, electronic
confirmation of the telecopy or facsimile is received, or when the notice
is transmitted by telex.
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 internal laws
of the State of New York.
SECTION 6.14. Agreements of Purchaser.
(a) The Purchaser will not commingle any of its assets with
those of the Seller or the ultimate parent of the Purchaser.
(b) The Purchaser will maintain separate corporate records
and books of account from those of the Seller or the ultimate parent of the
Purchaser.
(c) The Purchaser will conduct its business from an office
separate from the Seller or the ultimate parent of the Purchaser.
SECTION 6.15. Counterparts. This Agreement may be executed in
two or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereby have caused this Purchase
Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., as Seller
By:_____________________________
Name:
Title:
MMCA AUTO RECEIVABLES, INC.,
as Purchaser
By:________________________________
Name:
Title:
EXHIBIT A-1
FORM OF FIRST-TIER INITIAL ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of January __, 1999, between the undersigned and MMCA AUTO
RECEIVABLES, INC. (the "Purchaser") (as amended, supplemented or otherwise
modified and in effect from time to time, the "Purchase Agreement"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto
the Purchaser, without recourse (subject to the obligations in the Purchase
Agreement), all right, title and interest of the undersigned, whether now
owned or hereafter acquired, in, to and under the following, collectively:
(i) the Initial Receivables; (ii) with respect to Initial Receivables that
are Actuarial Receivables, monies due thereunder on or after the Initial
Cutoff Date (including Payaheads) and, with respect to the Initial
Receivables that are Simple Interest Receivables, monies received
thereunder on or after the Initial Cutoff Date; (iii) the security
interests in Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and any other interest of the Seller in such Financed Vehicles;
(iv) 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) 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) 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 repurchased by the Servicer or purchased by the
Seller); (ix) 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.
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 January __, 1999.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: _______________________
Name:
Title:
EXHIBIT A-2
FORM OF FIRST-TIER SUBSEQUENT ASSIGNMENT
For value received, in accordance with the Purchase Agreement,
dated as of January __, 1999, between the undersigned and MMCA AUTO
RECEIVABLES, INC. (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, with an aggregate Principal Balance of
$_______________ as of _______________, ________ (the "Subsequent Cutoff
Date"), 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 the 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 the
Subsequent Receivables and any other interest of the Seller in Financed
Vehicles; (iv) rights to receive proceeds with respect to the Subsequent
Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the Subsequent Financed Vehicles or
the related Obligors; (v) rights to receive proceeds with respect to the
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 the Subsequent Receivables; (vii) payments and proceeds with
respect to the 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 repurchased by the Servicer
or purchased by the Seller); (ix) rebates of premiums and other amounts
relating to insurance policies and other items financed under the
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.
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in, or incorporated by reference
into, the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier
Subsequent Assignment to be duly executed as of _______________, ______.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: _______________________
Name:
Title:
SCHEDULE A
[SCHEDULE OF SUBSEQUENT RECEIVABLES]
ANNEX A
OFFICERS' CERTIFICATE
The undersigned officer of Mitsubishi Motors Credit of America,
Inc., a Delaware corporation (the "Seller"), does hereby certify, pursuant
to Section 4.1(b)(iii)(C) of the Purchase Agreement, dated as of January
__, 1999 (as amended, supplemented or otherwise modified and in effect from
time to time, the "Purchase Agreement"), between the Seller and MMCA Auto
Receivables, Inc., a Delaware corporation (the "Purchaser"), that all of
the conditions precedent to the transfer to the Purchaser of the Subsequent
Receivables listed on Schedule A to the First-Tier Subsequent Assignment
delivered herewith, and the other property and rights related to such
Subsequent Receivables as described in Section 2.1(b) of the Purchase
Agreement, have been satisfied on or prior to the related Subsequent
Transfer Date.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate
to be duly executed this ______ day of _______________, ________.
By:_________________________________
Name:
Title:
EXHIBIT B
[SCHEDULE OF INITIAL RECEIVABLES]
SCHEDULE A
Locations of Receivables Files
Corporate Xxxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
National Service Center
10805 Holder Street, Third Floor
P.O. Box 6043
Cypress, CA 90630-0040
North Central Region
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Northeastern Region
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Southeastern Region
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Southwestern Region
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Western Region
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx X
Xxxxxxx, XX 00000
