Exhibit 10.1
PURCHASE AGREEMENT
between
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
as Seller
and
MMCA AUTO RECEIVABLES TRUST
as Purchaser
Dated as of December 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND USAGE..............................................1
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES..................................1
Section 2.1 Purchase and Sale of Receivables.......................1
Section 2.2 Payment of the Purchase Price..........................2
Section 2.3 The Closing............................................2
ARTICLE III - REPRESENTATIONS AND WARRANTIES...................................3
Section 3.1 Representations and Warranties of the Purchaser........3
Section 3.2 Representations and Warranties of the Seller...........3
ARTICLE IV - CONDITIONS........................................................9
Section 4.1 Conditions to Obligations of the Purchaser.............9
Section 4.2 Conditions to Obligation of the Seller................10
ARTICLE V - COVENANTS OF THE SELLER...........................................10
Section 5.1 Protection of Right, Title and Interest...............10
Section 5.2 Other Liens or Interests..............................11
Section 5.3 Costs and Expenses....................................12
Section 5.4 Indemnification.......................................12
Section 5.5 Sale..................................................12
ARTICLE VI - MISCELLANEOUS PROVISIONS.........................................13
Section 6.1 Obligations of Seller.................................13
Section 6.2 Repurchase Events.....................................13
Section 6.3 Purchaser's Assignment of Repurchased Receivables.....13
Section 6.4 Trust.................................................13
Section 6.5 Amendments............................................13
Section 6.6 Accountants' Letters..................................14
Section 6.7 Waivers...............................................14
Section 6.8 Notices...............................................14
Section 6.9 Costs and Expenses....................................14
Section 6.10 Representations of the Seller and the Purchaser.....14
Section 6.11 Confidential Information............................14
Section 6.12 Headings and Cross-References.......................15
Section 6.13 Governing Law.......................................15
Section 6.14 Agreements of Purchaser.............................15
Section 6.15 Counterparts........................................15
PURCHASE AGREEMENT, dated as of December 1, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, this
"Agreement"), by and between MITSUBISHI MOTORS CREDIT OF AMERICA, INC., a
Delaware corporation (the "Seller"), having its principal executive office at
0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, and MMCA AUTO RECEIVABLES
TRUST, a Delaware business trust (the "Purchaser"), having its principal
executive office at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000.
WHEREAS, in the regular course of its business, the Seller purchases
certain motor vehicle retail installment sale contracts secured by new and used
automobiles and sports-utility vehicles from motor vehicle dealers; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (such capitalized term and the other
capitalized terms used herein have the meanings assigned thereto pursuant to
Article I hereof), which Receivables and other property related thereto will be
sold by the Purchaser, pursuant to the Sale and Servicing Agreement, to the
Trust to be created pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto agree as follows:
ARTICLE I - DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A to the Indenture (the "Indenture"), dated as of December 1, 2001,
between MMCA Auto Owner Trust 2001-4, as issuer, and Bank of Tokyo-Mitsubishi
Trust Company, as indenture trustee, which also contains rules as to usage that
shall be applicable herein. The term "Seller" herein shall mean Mitsubishi
Motors Credit of America, Inc.
ARTICLE II - PURCHASE AND SALE OF RECEIVABLES
Section 2.1 Purchase and Sale of Receivables.
On the Closing 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 Schedule of
Receivables and the other property relating thereto (as described below).
On the Closing Date, and simultaneously with the transactions to be
consummated pursuant to the Indenture, the Sale and Servicing Agreement and the
Trust Agreement, the Seller shall, pursuant to the First-Tier Assignment, sell,
transfer, assign and otherwise convey to the Purchaser, without recourse
(subject to the obligations herein), all right, title and interest of the
Seller, whether now owned or hereafter acquired, in, to and under the following,
collectively: (i) the Receivables; (ii) with respect to Receivables that are
Actuarial Receivables, monies due thereunder on or after the Cutoff Date
(including Payaheads) and, with respect to Receivables that are Simple Interest
Receivables, monies received thereunder on or after the Cutoff Date; (iii) the
security interests in Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Seller in such Financed Vehicles; (iv)
all rights to receive proceeds with respect to the Receivables from claims on
any physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) all rights to
receive proceeds with respect to the 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 Receivables; (vii) all payments and
proceeds with respect to the 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 Receivable that is a Final Payment Receivable), guarantees and other
collateral securing a Receivable (other than a Receivable purchased by the
Servicer or repurchased by the Seller); (ix) all rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the 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 Receivables and the other property described in clauses
(i) through (x) of this Section 2.1(a) shall constitute a sale of the
Receivables and such other property from the Seller to the Purchaser, conveying
good title thereto free and clear of any liens, and the Receivables and such
other property shall not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy or
similar law. However, in the event that the foregoing transfer and assignment is
deemed to be a pledge, the Seller hereby grants to the Purchaser a first
priority security interest in all of the Seller's right to and interest in the
Receivables and other property described in the preceding paragraph to secure a
loan deemed to have been made by the Purchaser to the Seller in an amount equal
to the sum of the initial principal amount of the Notes plus accrued interest
thereon and the Initial Certificate Balance.
Section 2.2 Payment of the Purchase Price. In consideration for the
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 Receivables Purchase Price. An
amount equal to $[ ] of the Receivables Purchase Price shall be paid to the
Seller in cash. The remainder of the Receivables Purchase Price shall be paid by
crediting the Seller with a contribution to the capital of the Purchaser. The
portion of the Receivables Purchase Price to be paid in cash shall be by federal
wire transfer (same day) funds.
Section 2.3 The Closing. The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York 10036-6522 on the
Closing Date, simultaneously with the closings under: (a) the Sale and Servicing
Agreement, pursuant to which the Purchaser will assign all of its right, title
and interest in, to and under the Receivables, the Yield Supplement Agreement
and other property described in Section 2.1(a) to the Trust in exchange for the
Notes and the Certificates; (b) the Indenture, pursuant to which the Trust will
issue the Notes and pledge all of its right, title and interest in, to and under
the Trust Property to secure the Notes; (c) the Trust Agreement, pursuant to
which the Trust will issue the Certificates; and (d) the Underwriting Agreement,
pursuant to which the Purchaser will sell the Notes to the Persons named
therein.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date hereof and
the Closing Date:
(a) Organization, etc. The Purchaser has been duly established and is
validly existing as a business trust in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power,
authority, and legal right to acquire and own the Receivables, and has the power
and authority to execute and deliver this Agreement and to carry out its terms.
(b) Due Qualification. The Purchaser is duly qualified to do business
as a foreign business trust in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications.
(c) Due Authorization and Binding Obligation. This Agreement has been
duly authorized, executed and delivered by the Purchaser, and is the valid,
binding and enforceable obligation of the Purchaser except as the same may be
limited by insolvency, bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general equity principles.
(d) No Violation. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, its
Certificate of Trust or its amended and restated trust agreement, or conflict
with, or breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time or both) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which the Purchaser is
a party or by which the Purchaser is bound or to which any of its properties are
subject, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument (other than this Agreement), or violate any
law, order, rule, or regulation, applicable to the Purchaser or its properties,
of any federal or state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over the Purchaser or any
of its properties.
(e) No Proceedings. No proceedings or investigations are pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject, and, to the best knowledge of the Purchaser, no such proceedings or
investigations are threatened or contemplated by governmental authorities or
threatened by others, other than such proceedings or investigations which will
not have a material adverse effect upon the general affairs, financial position,
net worth or results of operations (on an annual basis) of the Purchaser and
which do not (i) assert the invalidity of this Agreement, (ii) seek to prevent
the consummation of any of the transactions contemplated by this Agreement or
(iii) seek any determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement.
Section 3.2 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Purchaser as of
the date hereof and the Closing 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 has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action. This Agreement and the First-Tier Assignment has been
duly authorized, executed and delivered by the Seller, and in each case
shall constitute the legal, valid, binding and enforceable obligation
of the Seller except as the same may be limited by insolvency,
bankruptcy, reorganization or other laws relating to or affecting the
enforcement of creditors' rights or by general equity principles.
(iii) No Violation. The execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
default under, the certificate of incorporation or bylaws of the
Seller, or conflict with, or breach any of the terms or provisions of,
or constitute (with or without notice or lapse of time or both) a
default under, any indenture, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which the Seller
is bound or any of its properties are subject, or result in the
creation or imposition of any lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than this Agreement), or violate any law,
order, rule or regulation, applicable to the Seller or its properties,
of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction over
the Seller or any of its properties.
(iv) No Proceedings. No proceedings or investigations are
pending to which the Seller is a party or of which any property of the
Seller is the subject, and, to the best knowledge of the Seller, no
such proceedings or investigations are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings or investigations which will not have a material adverse
effect upon the general affairs, financial position, net worth or
results of operations (on an annual basis) of the Seller and do not (i)
assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement
or (iii) seek any determinations or ruling that might materially and
adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement.
(v) Florida Securities and Investor Protection Act. In
connection with the offering of the Notes in the State of Florida, the
Seller hereby certifies that it has complied with all provisions of
Section 517.075 of the Florida Securities and Investor Protection Act.
(b) The Seller makes the following representations and warranties as to
the Receivables on which the Purchaser relies in accepting the Receivables. Such
representations and warranties speak as of the Closing Date except to the extent
otherwise provided in the following representations and warranties, but shall
survive the sale, transfer, and assignment of the Receivables to the Purchaser
hereunder and the subsequent assignment and transfer of the Receivables pursuant
to the Sale and Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated (x) in the United States of America by a Dealer
for the consumer or commercial sale of a Financed Vehicle in the
ordinary course of such Dealer's business or (y) by the Seller in
connection with the refinancing by the Seller of a motor vehicle retail
installment sale contract of the type described in subclause (x) above,
shall have been fully and properly executed by the parties thereto,
shall have been purchased by the Seller from such Dealer under an
existing Dealer Agreement with the Seller (unless such Receivable was
originated by the Seller in connection with a refinancing), and shall
have been validly assigned by such Dealer to the Seller in accordance
with its terms (unless such Receivable was originated by the Seller in
connection with a refinancing), (b) shall have created or shall create
a valid, binding, subsisting and enforceable first priority security
interest in favor of the Seller on the related Financed Vehicle, which
security interest has been validly assigned by the Seller to the
Purchaser, (c) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the security,
(d) in the case of Standard Receivables, shall provide for monthly
payments that fully amortize the Amount Financed by maturity of the
Receivable and yield interest at the APR, (e) in the case of Final
Payment Receivables, shall provide for a series of fixed level monthly
payments and a larger payment due after such level monthly payments
that fully amortize the Amount Financed by maturity and yield interest
at the APR, (f) shall provide for, in the event that such contract is
prepaid, a prepayment that fully pays the Principal Balance and all
accrued and unpaid interest thereon, (g) is a retail installment sale
contract, (h) is secured by a new or used automobile or sports-utility
vehicle and (i) is an Actuarial Receivable or a Simple Interest
Receivable (and may also be a Final Payment Receivable).
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date and no
selection procedures believed to be adverse to the Noteholders or the
Certificateholders shall have been utilized in selecting the
Receivables from those receivables which meet the criteria contained
herein. The compact disk or other listing regarding the Receivables
made available to the Purchaser and its assigns (which compact disk or
other listing is required to be delivered as specified herein) is true
and correct in all respects.
(iii) Compliance with Law. Each Receivable and the sale of the
related Financed Vehicle shall have complied, at the time it was
originated or made, and shall comply on the Closing Date in all
material respects with all requirements of applicable Federal, state,
and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Credit
Billing Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve
Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief
Act of 1940, the Texas Consumer Credit Code, and State adaptations of
the Uniform Consumer Credit Code, and other consumer credit laws and
equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
(v) No Government Obligor. None of the Receivables is due from
the United States of America or any state or from any agency,
department or instrumentality of the United States of America or any
state.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment, and transfer thereof, each Receivable shall be
secured by a valid, subsisting and enforceable perfected first priority
security interest in the related Financed Vehicle in favor of the
Seller as secured party and, at such time as enforcement of such
security interest is sought, there shall exist a valid, subsisting and
enforceable first priority perfected security interest in such Financed
Vehicle for the benefit of the Seller and the Purchaser, respectively
(subject to any statutory or other lien arising by operation of law
after the Closing Date, or all necessary and appropriate action with
respect to such Receivables shall have been taken to perfect a first
priority security interest in such Financed Vehicle for the benefit of
the Seller and the Purchaser, respectively.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle
have been released from the Lien granted by the related Receivable in
whole or in part, which security interest shall be assignable by the
Seller to the Purchaser.
(viii) No Waiver. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the
representations and warranties made by the Seller in this Section
3.2(b) with respect thereto.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens
or claims shall have been filed for work, labor, or materials relating
to a Financed Vehicle that shall be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted
by the Receivable.
(xi) No Default; Repossession. Except for payment defaults
continuing for a period of not more than 30 days or payment defaults of
10% or less of a Scheduled Payment, in each case as of the Cutoff Date,
or the failure of the Obligor to maintain satisfactory physical damage
insurance covering the Financed Vehicle, no default, breach, violation,
or event permitting acceleration under the terms of any Receivable
shall have occurred; no continuing condition that with notice or the
lapse of time or both would constitute a default, breach, violation, or
event permitting acceleration under the terms of any Receivable shall
have arisen; the Seller shall not have waived any of the foregoing; and
no Financed Vehicle shall have been repossessed as of the Cutoff Date.
(xii) Insurance. Each Contract shall require the related
Obligor to maintain physical damage insurance (which insurance shall
not be force placed insurance) covering the Financed Vehicle, in the
amount determined by the Seller in accordance with its customary
procedures.
(xiii) Title. It is the intention of the Seller that each
transfer and assignment of the Receivables herein contemplated -----
constitute a sale of such Receivables from the Seller to the Purchaser
and that the beneficial interest in, and title to, such Receivables not
be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law.
No Receivable has been sold, transferred, assigned, or pledged by the
Seller to any Person other than the Purchaser. Immediately prior to
each transfer and assignment of the Receivables herein contemplated,
the Seller had good and marketable title to such Receivables free and
clear of all Liens, encumbrances, security interests, and rights of
others and, immediately upon the transfer thereof, the Purchaser shall
have good and marketable title to such Receivables, free and clear of
all Liens, encumbrances, security interests, and rights of others; and
the transfer has been perfected by all necessary action under the
Relevant UCC.
(xiv) Valid Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer, and assignment of such Receivable under
this Agreement shall be unlawful, void, or voidable. The Seller has not
entered into any agreement with any obligor that prohibits, restricts
or conditions the assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, filings under the Relevant UCC) necessary in any
jurisdiction to give the Purchaser a first priority perfected security
interest in the Receivables shall be made within ten days of the
Closing Date.
(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 Cutoff
Date of not less than $100.
(xix) No Bankrupt Obligors. No Receivable was due from an
Obligor who, as of the 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, constituting approximately [ ]% of the total number of the
Receivables, relate to new automobiles and sports-utility vehicles,
substantially all of which were manufactured or distributed by
Mitsubishi Motors. Approximately [ ]% of the Pool Balance, constituting
approximately [ ]% of the total number of Receivables, relate to used
automobiles and sports-utility vehicle, substantially all of which were
manufactured or distributed by Mitsubishi Motors. Approximately [ ]% of
the Pool Balance, constituting approximately [ ]% of the total number
of Receivables, relate to program automobiles and sports-utility
vehicles, substantially all of which were manufactured or distributed
by Mitsubishi Motors. Approximately [ ]% of the Pool Balance,
constituting approximately [ ]% of the total number of Receivables,
relate to other used automobiles and sports-utility vehicles.
(xxi) Origination. Each Receivable shall have an origination
date during or after [ ].
(xxii) Maturity of Receivables. Each Receivable shall have, as
of the Cutoff Date, not more than [ ] remaining Scheduled Payments due.
(xxiii) Weighted Average Number of Payments. As of the Cutoff
Date, the weighted average number of payments remaining until the
maturity of the Receivables shall be not more than [ ] Scheduled
Payments.
(xxiv) Annual Percentage Rate. Each Receivable shall have an
APR of at least 0% and not more than 30%.
(xxv) Scheduled Payments. No Receivable shall have a payment
of which more than 10% of such payment is more than 30 days overdue as
of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files
shall be kept at one or more of the locations listed in Schedule A
hereto.
(xxvii) Capped Receivables and Simple Interest Receivables.
Except to the extent that there has been no material adverse effect on
Noteholders or Certificateholders, each Capped Receivable has been
treated consistently by the Seller as a Simple Interest Receivable and
payments with respect to each Simple Interest Receivable have been
allocated consistently in accordance with the Simple Interest Method.
(xxviii) Other Data. The tabular data and the numerical data
relating to the characteristics of the Receivables contained in the
Prospectus are true and correct in all material respects.
(xxix) Last Scheduled Payments. The aggregate principal
balance of the Last Scheduled Payments of Final Payment Receivables, as
a percentage of the Pool Balance as of the Cutoff Date, shall be not
greater than [ ]%.
(xxx) Receivable Yield Supplement Amounts. An amount equal to
the sum of all projected Yield Supplement Amounts for all future
Payment Dates with respect to each Deferred Payment Receivable and each
Deferred Balloon Payment Receivable, assuming that no prepayments are
made on the Deferred Payment Receivable or the Deferred Balloon Payment
Receivable, as the case may be, has been deposited to the Yield
Supplement Account on or prior to the Closing Date.
(xxxi) Prepaid Receivables. No Receivable shall have been
pre-paid by more than six monthly payments as of the Cutoff Date.
(xxxii) Limited Credit Experience. The aggregate principal
balance of the Receivables on which the Obligor has limited credit
experience, as a percentage of the aggregate principal balance of all
of such Receivables as of the Cutoff Date, shall be not greater than [
]%.
(xxxiii) Deferred Payment Receivables. As of the Cutoff Date
$[ ] total Principal Balance of Deferred Payment Receivables included
in the Receivables had a first payment that, as of the date of
inception of the Receivable, was deferred for 300 days or greater. As
of the Cutoff Date $[ ] total Principal Balance of Deferred Payment
Receivables included in the Receivables had a first payment that, as of
the date of inception of the Receivables, was deferred for a period of
between 200 and 299 days. As of the Cutoff Date $[ ] total Principal
Balance of Deferred Payment Receivables included in the Receivables had
a first payment that, as of the date of inception of the Receivables,
was deferred for a period of between 100 and 199 days. As of the Cutoff
Date $[ ] total Principal Balance of Deferred Payment Receivables
included in the Receivables had a first payment that, as of the date of
inception of the Receivables, was deferred for a period of 99 days or
less. In no case will the first payment on a Deferred Payment
Receivable be due later than 480 days after the date of inception of
that Receivable.
(xxxiv) Deferred Balloon Payment Receivables. As of the Cutoff
Date, $[ ] total principal balance of Deferred Balloon Payment
Receivables were originated with a deferral period of 90 days, and $[ ]
total principal balance of Deferred Balloon Payment Receivables were
originated with a deferral period of 180 days.
(xxxv) Modified Receivables. The APR of any Modified
Receivable is equal to the APR of the related Deferred Payment
Receivable. The date on which the final Scheduled Payment is due on a
Modified Receivable is not different than the date set forth in the
related Contract as the date on which the final Scheduled Payment under
such Receivable is due. No Deferred Payment Receivable became a
Modified Receivable after 90 days following the date the first
Scheduled Payment on the Receivable was due.
ARTICLE IV - CONDITIONS
Section 4.1 Conditions to Obligations of the Purchaser. The obligation
of the Purchaser to purchase the Receivables is subject to the satisfaction of
the following conditions:
(i) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on the
Cutoff Date or on the Closing Date, as appropriate, with the same
effect as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the Closing
Date.
(ii) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that the Receivables have been sold to the Purchaser pursuant to
this Agreement and the First-Tier Assignment and deliver to the
Purchaser the Schedule of 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 Assignment. At the Closing, the
Seller will execute and deliver the First-Tier Assignment in
substantially the form of Exhibit A hereto.
(B) The Yield Supplement Agreement. At the Closing,
the Seller will execute and deliver the Yield Supplement
Agreement.
(C) Evidence of UCC Filing. Within ten 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 Receivables and the other property
conveyed under Section 2.1 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 Receivables to the Purchaser.
The Seller shall deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the
Purchaser within ten days of the Closing Date.
(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.
Section 4.2 Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Purchaser on the Closing 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 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.
(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.
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 9-506(b) of the
Relevant UCC, unless it shall have given the Purchaser at least 60 days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) The Seller shall give the Purchaser at least 60 days' prior written
notice of any relocation of its principal executive office or of any change in
its jurisdiction of organization if, as a result of such relocation or change,
the applicable provisions of the Relevant UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall promptly file any such amendment, continuation
statement or new financing statement. The Seller shall at all times maintain
each office from which it shall service Receivables, its principal executive
office, and its jurisdiction of organization within the United States of
America.
(d) The Seller shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit the reader thereof to
know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so that, from and
after the time of sale hereunder of the Receivables to the Purchaser, the
Seller's master computer records (including any back-up archives) that refer to
a Receivable shall indicate clearly the interest of the Purchaser in such
Receivable and that such Receivable is owned by the Purchaser (or, upon sale of
the Receivables to the Trust, by the Trust). Indication of the Purchaser's
ownership of a Receivable shall be deleted from or modified on the Seller's
computer systems when, and only when, the Receivable shall have been paid in
full or repurchased.
(f) If at any time the Seller shall propose to sell, grant a security
interest in, or otherwise transfer any interest in any automobile or
sports-utility vehicle receivables (other than the Receivables) to any
prospective purchaser, lender, or other transferee, the Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, compact
disks, records, or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is owned by the
Purchaser or its assignee unless such Receivable has been paid in full or
repurchased.
(g) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit, and make copies of and abstracts
from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the Purchaser, within ten
Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by the Purchaser, together with a reconciliation of such
list to the Schedule of Receivables.
Section 5.2 Other Liens or Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer any Receivable
to any other Person, or grant, create, incur, assume or suffer to exist any Lien
on any interest therein, and the Seller shall defend the right, title, and
interest of the Purchaser in, to and under the Receivables against all claims of
third parties claiming through or under the Seller; provided, however, that the
Seller's obligations under this Section 5.2 shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
Section 5.3 Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in, to and under the
Receivables.
Section 5.4 Indemnification.
(a) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Receivable to be
originated in compliance with all requirements of law and for any breach of any
of the Seller's representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership, or operation
by the Seller or any Affiliate thereof of a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all taxes, except for taxes on the net income of the
Purchaser, that may at any time be asserted against the Purchaser with respect
to the transactions contemplated herein and in the Yield Supplement Agreement,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes and costs and expenses
in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims and
liabilities to the extent that such cost, expense, loss, damage, claim or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the performance
of its duties under this Agreement or the Yield Supplement Agreement, as the
case may be, or by reason of reckless disregard of the Seller's obligations and
duties under the Agreement or the Yield Supplement Agreement, as the case may
be.
(e) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, damages, claims and liabilities
arising out of or incurred in connection with the acceptance or performance of
the Seller's trusts and duties as Servicer under the Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, damage, claim or
liability shall be due to the willful misfeasance, bad faith, or negligence
(except for errors in judgment) of the Purchaser.
These indemnity obligations shall be in addition to any obligation that
the Seller may otherwise have.
Section 5.5 Sale. The Seller agrees to treat this conveyance for all
purposes (including without limitation tax and financial accounting purposes) as
an absolute transfer on all relevant books, records, tax returns, financial
statements and other applicable documents.
ARTICLE VI - MISCELLANEOUS PROVISIONS
Section 6.1 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 6.2 Repurchase Events. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Certificateholders, that the occurrence
of a breach of any of the Seller's representations and warranties contained in
Section 3.2(b) shall constitute an event obligating the Seller to repurchase
Receivables hereunder (each, a "Repurchase Event") at a price equal to the
Purchase Amount from the Purchaser or from the Trust. Subject to Section 5.4(a),
the repurchase obligation of the Seller shall constitute the sole remedy to the
Purchaser, the Indenture Trustee, the Owner Trustee, the Noteholders and the
Certificateholders against the Seller with respect to any Repurchase Event.
Section 6.3 Purchaser's Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to Section 6.2 of
this Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in, to and
under such Receivables, and all security and documents relating thereto.
Section 6.4 Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement,
sell the Receivables to the Trust on the Closing Date and assign its rights
under this Agreement and the Yield Supplement Agreement to the Owner Trustee for
the benefit of the Noteholders and the Certificateholders, and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under this Agreement, including under Sections 6.2 and 6.3, are
intended to benefit the Trust, the Noteholders and the Certificateholders. The
Seller hereby consents to such sale and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the Receivables
and its rights under this Agreement and the Yield Supplement Agreement to the
Indenture Trustee for the benefit of the Noteholders, and the representations
and warranties contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Sections 6.2 and 6.3, are intended to benefit
the Noteholders. The Seller hereby consents to such pledge.
Section 6.5 Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Seller and the Purchaser; provided,
however, that any such amendment that materially adversely affects the rights of
the Noteholders or the Certificateholders under the Indenture, Sale and
Servicing Agreement or Trust Agreement shall be consented to by the Holders of
Notes evidencing not less than 51% of the then Outstanding Notes and the Holders
of Certificates evidencing not less than 51% of the Certificate Balance.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement may be amended by the Seller and the Purchaser, but without the
consent of any of the Holders to add, modify or eliminate such provisions as may
be necessary or advisable in order to: (a) cure any ambiguity, to revise,
correct or supplement any provisions herein, (b) enable the transfer to the
Trust of all or any portion of the Receivables to be derecognized by the Seller
under GAAP, (c) enable the Trust to avoid becoming a member of the Seller's
consolidated group under GAAP or (d) enable the Transferor or any Affiliate of
the Transferor or any of their Affiliates to otherwise comply with or obtain
more favorable treatment under any law or regulation or any accounting rule or
principle; provided, however, it shall be a condition to any such amendment that
the Rating Agency Condition be met; and provided, further, that no such
amendment shall be inconsistent with the derecognition by the Seller of the
Receivables under GAAP or cause the Purchaser to become a member of the Seller's
consolidated group under GAAP.
Section 6.6 Accountants' Letters.
(a) Ernst & Young LLP will perform certain procedures regarding the
characteristics of the Receivables described in the Schedule of Receivables set
forth as Exhibit B hereto and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus.
(b) Seller will cooperate with the Purchaser and Ernst & Young LLP in
making available all information and taking all steps reasonably necessary to
permit such accountants to complete the procedures set forth in Section 6.6(a)
above and to deliver the letters required of them under the Underwriting
Agreement.
(c) Ernst & Young LLP will deliver to the Purchaser a letter, dated the
date of the Prospectus, in the form previously agreed to by the Seller and the
Purchaser, with respect to the financial and statistical information contained
in the Prospectus under the captions "Delinquency Experience," "Net Credit Loss
and Repossession Experience" and "Contracts Providing for Balloon Payments: Loss
Experience on Returned Vehicles" and with respect to such other information as
may be agreed in the forms of such letters.
Section 6.7 Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or any Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
Section 6.8 Notices. All communications and notices pursuant hereto to
either party shall be in writing or by confirmed facsimile and addressed or
delivered to it at its address shown in the opening portion of this Agreement or
at such other address as may be designated by it by notice to the other party
and, if mailed or sent by facsimile, shall be deemed given when mailed or when
electronic confirmation of the facsimile is received.
Section 6.9 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in, to and under the Receivables and the enforcement of any obligation of the
Seller hereunder.
Section 6.10 Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by the
Seller and the Purchaser set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the Closing.
Section 6.11 Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, the Sale and Servicing Agreement or as
required by law.
Section 6.12 Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement.
Section 6.13 Governing Law. This Agreement and each Assignment shall be
governed by, and construed in accordance with, the 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 TRUST,
as Purchaser
By:
----------------------
Name:
Title:
Exhibit A-1
EXHIBIT A
FORM OF FIRST-TIER ASSIGNMENT
Dated: __________, _____
For value received, in accordance with the Purchase
Agreement, dated as of __________, _____, between the undersigned and MMCA
AUTO RECEIVABLES TRUST (the "Purchaser") (as amended, supplemented or
otherwise modified and in effect from time to time, the "Purchase
Agreement"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the Purchase Agreement), all right, title and interest of
the undersigned, whether now owned or hereafter acquired, in, to and under
the following, collectively: (i) the Receivables; (ii) with respect to
Receivables that are Actuarial Receivables, monies due thereunder on or
after the Cutoff Date (including Payaheads) and, with respect to
Receivables that are Simple Interest Receivables, monies received
thereunder on or after the Cutoff Date; (iii) the security interests in
Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in such Financed Vehicles; (iv) all rights to
receive proceeds with respect to the Receivables from claims on any
physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) all rights
to receive proceeds with respect to the 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 Receivables; (vii) all
payments and proceeds with respect to the 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 Receivable that is a Final Payment
Receivable), guarantees and other collateral securing a Receivable (other
than a Receivable purchased by the Servicer or repurchased by the Seller);
(ix) all rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
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 Receivables, the related Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This First-Tier Assignment is made pursuant to and upon
the representations, warranties and agreements on the part of the
undersigned contained in the Purchase Agreement and is to be governed by
the Purchase Agreement.
In the event that the foregoing sale, assignment,
transfer and conveyance is deemed to be a pledge, the undersigned hereby
grants to the Purchaser a first priority security interest in all of the
undersigned's right to and interest in the Receivables and other property
described in clauses (i) through (x) above to secure a loan deemed to have
been made by the Purchaser to the undersigned in an amount equal to the sum
of the initial principal amount of the Notes plus accrued interest thereon
and the Initial Certificate Balance.
This First-Tier Assignment shall be construed in
accordance with the laws of the State of New York and the obligations of
the undersigned under this First-Tier Assignment shall be determined in
accordance with such laws.
Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in, or incorporated by
reference into, the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this First-Tier
Assignment to be duly executed as of __________, ______.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: _______________________
Name:
Title:
Exhibit B
EXHIBIT B
SCHEDULE OF RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPUTER TAPE,
COMPACT DISK, OR MICROFICHE
Schedule A
SCHEDULE A
Locations of Receivables Files
Corporate Xxxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
National Service Center
00000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
