Exhibit 1.1
EXECUTION COPY
$740,000,000
MMCA AUTO OWNER TRUST 1999-2
$326,000,000 6.30% CLASS A-1 ASSET BACKED NOTES
$210,000,000 6.80% CLASS A-2 ASSET BACKED NOTES
$142,000,000 7.00% CLASS A-3 ASSET BACKED NOTES
$62,000,000 7.55% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
October 20, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Underwriters
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust (the "Seller"), a
Delaware business trust established pursuant to the Amended and Restated
Trust Agreement dated as of October 1, 1999 (the "Seller Trust Agreement")
between Mitsubishi Motors Credit of America, Inc. ("MMCA") and Chase
Manhattan Bank Delaware, as trustee (the "Seller Trustee"), proposes,
subject to the terms and conditions stated herein, to cause MMCA Auto Owner
Trust 1999-2 (the "Trust") to issue and sell to you $326,000,000 aggregate
principal amount of 6.30% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $210,000,000 aggregate principal amount of 6.80% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $142,000,000 aggregate principal
amount of 7.00% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), and
$62,000,000 aggregate principal amount of 7.55% Class B Asset Backed Notes
(the "Class B Notes" and together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Notes"). The Notes will be issued
pursuant to the Indenture dated as of October 1, 1999 (the "Indenture"),
between the Trust and Bank of Tokyo-Mitsubishi Trust Company (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $60,000,000 aggregate principal amount of
certificates of beneficial interest (the "Certificates"), each representing
an interest in the Trust Property. The Seller will retain the
Certificates. The Certificates will be issued pursuant to the Amended and
Restated Trust Agreement, dated as of October 1, 1999 (the "Trust
Agreement"), between the Seller and Wilmington Trust Company, as Owner
Trustee. The Certificates will be subordinated to the Notes.
The assets of the Trust will include, among other things, (i) a pool
of motor vehicle retail installment sale contracts secured by new and used
automobiles and light-duty trucks to be conveyed to the trust on the
Closing Date (the "Initial Receivables") and from time to time thereafter
during the Pre-Funding Period (the "Subsequent Receivables" and together
with the Initial Receivables, the "Receivables"), (ii) with respect to
Actuarial Receivables, certain monies due thereunder on or after the
related Cutoff Date, and (iii) with respect to Simple Interest Receivables,
certain monies due or received thereunder on or after the related Cutoff
Date. The Receivables will be sold to the Trust by the Seller and will be
serviced for the Trust by MMCA (in such capacity, the "Servicer").
Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Sale and Servicing Agreement to be dated as of October 1,
1999 (the "Sale and Servicing Agreement"), among the Trust, the Seller and
the Servicer or, if not defined therein, in the Indenture, the Trust
Agreement or the Purchase Agreement, as the case may be. "Basic Documents"
means, collectively, Basic Documents, as defined in the Trust Agreement and
Basic Documents, as defined in the Indenture. "Transfer Date" means, with
respect to an Initial Receivable, the Closing Date, and with respect to a
Subsequent Receivable, the related Subsequent Transfer Date. The Seller
hereby agrees with the several Underwriters named in Schedule A hereto (the
"Underwriters") as follows:
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-85685)
relating to the Notes, including a form of prospectus, has been filed
with the Securities and Exchange Commission (the "Commission") and
either (i) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or
(ii) is proposed to be amended by amendment or post-effective
amendment. If the Seller does not propose to amend the registration
statement and if any post-effective amendment to the registration
statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent post-effective
amendment has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) under the Act ("Rule
462(c)"). For purposes of this Agreement, "Effective Time" means
(i) if the Seller has advised Credit Suisse First Boston Corporation,
as representative of the Underwriters (in such capacity, the
"Representative"), that it does not propose to amend the registration
statement, the date and time as of which the registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Seller has advised the
Representative that it proposes to file an amendment or post-effective
amendment to the registration statement, the date and time as of which
the registration statement, as amended by such amendment or post-
effective amendment, as the case may be, is declared effective by the
Commission. "Effective Date" means the date of the Effective Time.
The registration statement, as amended at the Effective Time,
including all information (if any) deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as
the "Registration Statement". The form of prospectus relating to the
Notes, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) under the Act ("Rule 424(b)") or, if no
such filing is required, as included in the Registration Statement, is
hereinafter referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time is prior to the execution and delivery
of this Agreement: (i) on the Effective Date, the Registration
Statement conformed in all respects to the requirements of the Act and
the rules and regulations of the Commission (the "Rules and
Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) on
the date of this Agreement, the Registration Statement conforms, and
at the time of filing of the Prospectus pursuant to Rule 424(b), the
Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on
the Effective Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, (ii) neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) no additional registration statement
related to the Notes pursuant to Rule 462(b) has been or will be
filed. The two preceding sentences do not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon
written information furnished to the Seller by any Underwriter through
the Representative specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b).
(c) The Seller has been duly formed and is validly existing as a
business trust under the Delaware Business Trust Act, 12 Del.C.
section3801 et. seq. (the "Delaware Trust Act"), with power and
authority to own its properties and conduct its business as described
in the Prospectus, and the Seller is duly qualified to do business and
is in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification.
(d) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Seller or the Trust for the consummation of
the transactions contemplated by this Agreement and the Basic
Documents in connection with the issuance of the Notes and the
Certificates and the sale by the Seller of the Notes, except such as
have been obtained and made under the Act, such as may be required
under state securities laws and the filing of any financing statements
required to perfect the Seller's, the Trust's and the Indenture
Trustee's interest in the Receivables, which financing statements have
been filed in the appropriate offices prior to the Closing Date (as
such term is defined in Section 3).
(e) The Seller is not in violation of the Seller Trust Agreement
or other organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by
which it or its properties are bound which could have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents. The execution, delivery and performance of this Agreement
and the Basic Documents, and the issuance of the Notes and the
Certificates and the sale by the Seller of the Notes and compliance
with the terms and provisions hereof and thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Seller or any of its properties, or any
agreement or instrument to which the Seller is a party or by which the
Seller is bound or to which any of the properties of the Seller or any
such subsidiary is subject, or the Seller Trust Agreement or other
organizational documents of the Seller, and the Seller has full power
and authority to authorize and issue the Notes and the Certificates
and to sell the Notes as contemplated by this Agreement, the Indenture
and the Trust Agreement, to enter into this Agreement and the Basic
Documents and to consummate the transactions contemplated hereby and
thereby.
(f) On the Closing Date, the Seller will have directed the Owner
Trustee to authenticate and execute the Certificates and, when
delivered and paid for pursuant to the Sale and Servicing Agreement
and the Trust Agreement, the Certificates will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Trust, entitled to the
benefits provided in the Trust Agreement and enforceable in accordance
with their terms.
(g) On the Closing Date, the Seller will have directed the Owner
Trustee to execute the Notes and directed the Indenture Trustee to
authenticate and deliver the Notes and, when authenticated, delivered
and paid for pursuant to the Indenture and this Agreement, the Notes
will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Trust,
entitled to the benefits provided in the Indenture and enforceable in
accordance with its terms.
(h) The Seller possesses adequate certificates, authorities and
permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Seller, would individually or in the
aggregate have a material adverse effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Seller or any
of its properties that, if determined adversely to the Seller, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business or results of operations of
the Seller, or would materially and adversely affect the ability of
the Seller to perform its obligations under this Agreement or the
other Basic Documents to which it is a party, or which are otherwise
material in the context of the issuance and sale of the Notes or the
issuance of the Certificates or the sale of the Notes; and no such
actions, suits or proceedings are threatened or, to the Seller's
knowledge, contemplated.
(j) As of the Closing Date, the representations and warranties
of the Seller contained in the Basic Documents will be true and
correct.
(k) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Seller, whether or not arising in
the ordinary course of business and (ii) there have been no
transactions entered into by the Seller, other than those in the
ordinary course of business, which are material with respect to the
Seller.
(l) Each of the Basic Documents to which the Seller is a party
has been duly authorized by the Seller and, when duly executed and
delivered by the Seller and the other parties thereto, will constitute
a valid and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(m) This Agreement has been duly authorized, executed and
delivered by the Seller.
(n) The Seller has authorized the conveyance of the Receivables
to the Trust, and, as of the Closing Date, the Seller has directed the
Trust to execute and issue the Notes and the Certificates and to sell
the Notes.
(o) The Seller's assignment and delivery of the Receivables to
the Trust on the related Transfer Dates will vest in the Trust all of
the Seller's right, title and interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(p) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance
except for any tax lien, mechanics lien or other lien or encumbrance
that attaches by operation of law.
(q) The Computer Tapes of the Receivables created as of the
related Transfer Dates and made available to the Representative by the
Servicer are or will be, as applicable, complete and accurate as of
the date thereof and include or will include, as applicable, an
identifying description of the Receivables that are listed on Schedule
A to the Sale and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
Basic Documents, the Notes and the Certificates and any other
agreements contemplated herein or therein shall have been paid or will
be paid by the Seller at or prior to the Closing Date to the extent
then due.
(s) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms
hereof and thereof, will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any of
the property or assets of the Seller pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Seller is a debtor or guarantor.
(t) The Seller is not and, after giving effect to the issuance
of the Notes and Certificates and the offering and sale of the Notes
and the application of the proceeds thereof as described in the
Prospectus, will not be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940 (the
"Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, at a purchase price of, in the case of (i) the
Class A-1 Notes, 99.890625% of the principal amount thereof; (ii) the Class
A-2 Notes, 99.968750% of the principal amount thereof; (iii) the Class A-3
Notes, 99.984375% of the principal amount thereof; and (iv) the Class B
Notes, 99.968750% of the principal amount thereof, the respective principal
amounts of each Class of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The Seller will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global securities
in definitive form (the "Global Notes") deposited with the Indenture
Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Notes will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus. Payment
for the Notes shall be made by the Underwriters in Federal (same day) funds
by official check or checks or wire transfer to an account in New York
previously designated to Credit Suisse First Boston Corporation by the
Seller at a bank acceptable to Credit Suisse First Boston Corporation, at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York time, on October 28, 1999,
or at such other time not later than seven full business days thereafter as
Credit Suisse First Boston Corporation and the Seller determine, such time
being herein referred to as the "Closing Date", against delivery to the
Indenture Trustee as custodian for DTC of the Global Notes representing all
of the Notes. The Global Notes will be made available for checking at the
above office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours
prior to the Closing Date.
The Seller will deliver the Certificates to the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on the Closing Date. The
certificate for the Certificates so to be delivered will be in definitive
form, in authorized denominations and registered in the name of the Seller
and will be made available for checking at the above office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours prior to the Closing
Date.
The Bank of Tokyo-Mitsubishi, Ltd., an affiliate of the Indenture
Trustee, will participate in the transaction contemplated by this Agreement
by acting as an advisor to Seller. For its services, as previously agreed
among the parties hereto, the Underwriters will pay a fee to The Bank of
Tokyo-Mitsubishi, Ltd. equal to $100,000 out of the underwriting discounts
and commissions received by the Underwriters in connection with the
purchase of the Notes pursuant to this Agreement.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the parties hereto have agreed that the
Closing Date will be not later than October 28, 1999, unless otherwise
agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and delivery
of this Agreement, the Seller will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (1) (or, if
applicable and if consented to by Credit Suisse First Boston
Corporation, subparagraph (4)) of Rule 424(b) not later than the
earlier of (i) the second business day following the execution and
delivery of this Agreement or (ii) the fifteenth business day after
the Effective Date. The Seller will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or
the related prospectus, or the Registration Statement or the
Prospectus, and will not effect such amendment or supplementation
without the Representative's consent; and the Seller will also advise
the Representative promptly of the effectiveness of the Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Seller will promptly notify the Representative of such event and
will promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such statement
or omission, or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Underwriters',
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Seller will cause the Trust to make
generally available to the Noteholders an earnings statement of the
Trust covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of
the Act. For the purpose of the preceding sentence, "Availability
Date" means the 90th day after the end of the Trust's fourth fiscal
quarter following the fiscal quarter that includes such Effective
Date.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as
delivery of a prospectus relating to the Notes is required under the
Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representative requests. The Prospectus shall be so furnished on or
prior to 3:00 p.m., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time. All other such documents shall be so furnished as soon as
available. The Seller will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Seller will arrange for the qualification of the Notes
for offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative
designates and will continue such qualifications in effect so long as
required for the distribution of the Notes.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other Underwriters,
copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee pursuant to Section 3.9 of the
Indenture and Sections 3.9 and 3.10 of the Sale and Servicing
Agreement and the annual independent certified public accountant's
servicing reports furnished to the Indenture Trustee pursuant to
Section 3.11 of the Sale and Servicing Agreement, by first-class mail
as soon as practicable after such statements and reports are furnished
to the Indenture Trustee, and (ii) such other forms of periodic
certificates or reports as may be delivered to the Indenture Trustee,
the Owner Trustee or the Noteholders under the Indenture, the Trust
Agreement, the Sale and Servicing Agreement or the other Basic
Documents.
(h) So long as any Note is outstanding, the Seller will furnish
to the Representative by first-class mail as soon as practicable,
(i) all documents distributed, or caused to be distributed, by the
Seller to the Noteholders, (ii) all documents filed, or caused to be
filed, by the Seller with the Commission pursuant to the Exchange Act,
any order of the Commission thereunder and (iii) such other
information in the possession of the Seller concerning the Trust as
the Representative from time to time may reasonably request.
(i) The Seller will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Notes for
sale and determination of their eligibility for investment under the
laws of such jurisdictions as the Representative designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the Seller's officers and employees and any other expenses
of the Seller in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the rating provided with respect
to the Notes by Xxxxx'x Investors Service, Inc. ("Moody's") and
Standard & Poor's, a Division of The XxXxxx-Xxxx Companies, Inc.
("Standard & Poor's" and, together with Moody's, the "Rating
Agencies") is conditional upon the furnishing of documents or the
taking of any other action by the Seller, the Seller shall furnish
such documents and take any such other action.
(k) On or before the related Transfer Date, the Seller shall
cause the computer records of the Seller and MMCA relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the related Transfer Date neither the
Seller nor MMCA shall take any action inconsistent with the Trust's
ownership of such Receivables, other than as permitted by the Sale and
Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes
on the Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Seller herein, to the accuracy of the
statements of Seller officers made pursuant to the provisions hereof, to
the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Ernst
& Young LLP, in form and substance satisfactory to the Representative
and counsel for the Underwriters, confirming that they are independent
public accountants within the meaning of the Act and the applicable
Rules and Regulations and stating in effect that (i) they have
performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Trust, MMCA and the Seller) set forth in the Registration
Statement and the Prospectus (and any supplements thereto), agrees
with the accounting records of the Trust, MMCA and the Seller,
excluding any questions of legal interpretation, and (ii) they have
performed certain specified procedures with respect to the
Receivables.
For purposes of this subsection, (i) if the Effective Time is
subsequent to the execution and delivery of this Agreement,
"Registration Statement" shall mean the registration statement as
proposed to be amended by the amendment or post-effective amendment to
be filed shortly prior to the Effective Time, including all
information (if any) deemed to be a part of the initial registration
statement as of such time pursuant to Rule 430A(b), and (ii)
"Prospectus" shall mean the prospectus included in the Registration
Statement. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this
subsection.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or
such later date as shall have been consented to by the Representative.
If the Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a). Prior to
the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Seller or the Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations or retail motor
vehicle financing business or light-duty truck financing business of
the Trust, the Seller, Mitsubishi Motor Sales of America, Inc.
("MMSA"), Mitsubishi Motors Corporation ("MMC") or MMCA which, in the
judgment of a majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of each
Class of the Notes or makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
each Class of the Notes; (ii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange; (iii) any banking
moratorium declared by Federal, California or New York authorities; or
(iv) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
substantial national or international calamity or emergency if, in the
judgement of a majority in interest of the Underwriters (including the
Representative), the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for each Class of the Notes.
(d) The Representative shall have received an opinion of (A) J.
Xxxx Xxxxxx, Esq., Director of Legal Affairs of the Seller, and (B)
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to Seller, in each
case dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, and, in the
aggregate to the effect that:
(i) the Seller has been duly formed and is validly existing
as a business trust under the Delaware Trust Act, with full power
and authority to own its properties and conduct its business as
described in the Prospectus; the Seller is duly qualified to do
business and is in good standing in each jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification; and the Seller has full power and
authority under the Delaware Trust Act and under the Seller Trust
Agreement to enter into and perform its obligations under this
Agreement and the Basic Documents to which it is a party, to
direct the Indenture Trustee and the Owner Trustee to execute the
Notes and the Certificates, respectively, to consummate the
transactions contemplated hereby and thereby, and had at all
times, and now has, the power, authority and legal right to
acquire, own and sell the Receivables;
(ii) MMCA has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; MMCA is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification; and MMCA has full power and authority to enter
into and perform its obligations under this Agreement, the Note
Indemnification Agreement dated the date hereof (the "Note
Indemnification Agreement") between MMCA and the Representative,
acting on behalf of itself and as Representative of the several
Underwriters, and the Basic Documents to which it is a party and
to consummate the transactions contemplated hereby and thereby,
and had at all times, and now has, the power, authority and legal
right to acquire, own, sell and service the Receivables;
(iii) Each of the direction by the Seller to the Owner
Trustee to execute the Notes and the direction by the Seller to
the Indenture Trustee to authenticate and deliver the Notes has
been duly authorized by the Seller and, when the Notes have been
duly executed by the Owner Trustee and, when authenticated and
delivered by the Indenture Trustee in accordance with the terms
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Notes will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Indenture;
(iv) the direction by the Seller to the Owner Trustee to
authenticate and execute the Certificates has been duly
authorized by the Seller and, when the Certificates have been
duly executed, authenticated and delivered by the Owner Trustee
in accordance with the terms of the Trust Agreement and the
Certificates have been delivered to and paid for by the Seller
pursuant to the Sale and Servicing Agreement and the Trust
Agreement, the Certificates will be duly and validly issued and
outstanding and will be entitled to the benefits of the Trust
Agreement;
(v) the Note Indemnification Agreement, the Assignment
dated the date hereof from MMCA to the Seller and each Basic
Document to which MMCA is a party has been duly authorized,
executed and delivered by MMCA;
(vi) no consent, approval, authorization or order of, or
filing with any governmental agency or body or any court is
required for the execution, delivery and performance by the
Seller of this Agreement and the Basic Documents to which it is a
party, for the execution, delivery and performance by MMCA of the
Note Indemnification Agreement and the Basic Documents to which
it is a party or for the consummation of the transactions
contemplated by this Agreement, the Basic Documents or the Note
Indemnification Agreement, except for (i) the filing of Uniform
Commercial Code financing statements in California with respect
to the transfer of the Receivables to the Seller pursuant to the
Purchase Agreement and the transfer of the Trust Property to the
Trust pursuant to the Sale and Servicing Agreement and the filing
of a Uniform Commercial Code financing statement in Delaware with
respect to the grant by the Trust of a security interest in the
Trust Property to the Indenture Trustee pursuant to the
Indenture, which financing statements will be filed in the
appropriate offices within 10 days of the Closing Date; (ii) such
as have been obtained and made under the Act; and (iii) such as
may be required under state securities laws;
(vii) the execution, delivery and performance of this
Agreement and the Basic Documents by the Seller, the execution,
delivery and performance of the Note Indemnification Agreement
and the Basic Documents by MMCA and the consummation of any other
of the transactions contemplated herein, in the Note
Indemnification Agreement or the Basic Documents will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of MMCA or the Seller pursuant to
the terms of the Certificate of Incorporation or the By-Laws of
MMCA or the documents of organization of the Seller, or any
statute, rule, regulation or order of any governmental agency or
body, or any court having jurisdiction over MMCA or the Seller or
their respective properties, or any agreement or instrument known
to such counsel after due investigation to which MMCA or the
Seller is a party or by which MMCA or the Seller or any of their
respective properties is bound;
(viii) such counsel has no reason to believe that any
part of the Registration Statement or any amendment thereto, as
of its effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date or as
of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in the Registration Statement or the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(ix) there are no actions, proceedings or investigations
pending to which the Seller or MMCA is a party or, to the best
knowledge of such counsel, after due inquiry, threatened before
any court, administrative agency or other tribunal having
jurisdiction over MMCA or the Seller, (i) that are required to be
disclosed in the Registration Statement, (ii) asserting the
invalidity of this Agreement, the Note Indemnification Agreement,
any Basic Document, the Notes or the Certificates, (iii) seeking
to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or the Basic Documents, (iv) which might materially and
adversely affect the performance by the Seller or MMCA of its
obligations under, or the validity or enforceability of, this
Agreement, the Note Indemnification Agreement, any Basic
Document, the Notes or the Certificates, or (v) seeking adversely
to affect the federal income tax attributes of the Notes as
described in the Prospectus under the heading " FEDERAL INCOME
TAX CONSEQUENCES";
(x) the statements in the Registration Statement under the
heading "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute statements of matters of law or legal
conclusions with respect thereto, are correct in all material
respects;
(xi) each of MMCA and the Seller has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any
Receivable unenforceable by MMCA, the Seller, the Trust, the
Owner Trustee or the Indenture Trustee;
(xii) this Agreement and each Basic Document to which
the Seller is a party has been duly authorized, executed and
delivered by the Seller;
(xiii) such counsel is familiar with MMCA's standard
operating procedures relating to MMCA's acquisition of a
perfected first priority security interest in the vehicles
financed by MMCA pursuant to retail installment sale contracts in
the ordinary course of MMCA's business; assuming that MMCA's
standard procedures are followed with respect to the perfection
of security interests in the Financed Vehicles (and such counsel
has no reason to believe that MMCA has not or will not continue
to follow its standard procedures in connection with the
perfection of security interests in the Financed Vehicles), MMCA
has acquired or will acquire a perfected first priority security
interest in the Financed Vehicles;
(xiv) the Receivables are chattel paper as defined in
the UCC; and
(xv) immediately prior to the sale of Receivables by MMCA to
the Seller pursuant to the Purchase Agreement and the Assignment,
MMCA was the sole owner of all right, title and interest in, to
and under the Receivables and the other property to be
transferred by it to the Seller. Immediately prior to the sale
of Receivables by the Seller to the Trust pursuant to the Sale
and Servicing Agreement, the Seller was the sole owner of all
right, title and interest in, to and under the Receivables and
the other property to be sold by it to the Trust.
(e) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Seller, dated the Closing Date, and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that:
(i) each Initial Receivable is a motor vehicle retail
installment sales contract that constitutes "chattel paper" as
defined in Section 9-105 of the UCC in effect in the States of
New York, Delaware and California;
(ii) the provisions of the Sale and Servicing Agreement are
effective to create, in favor of the Owner Trustee, a valid
security interest (as such term is defined in Section 1-201 of
the New York UCC) in the Seller's rights in the Initial
Receivables and proceeds thereof, which security interest, if
characterized as a transfer for security, will secure payment of
the Notes;
(iii) the Financing Statement is in appropriate form for
filing in the relevant filing office under the New York UCC.
Upon the filing of the Financing Statement in the relevant filing
office, the security interest in favor of the Owner Trustee in
the Initial Receivables and proceeds thereof will be perfected,
and no other security interest of any other creditor of the
Seller will be equal or prior to the security interest of the
Owner Trustee in the Initial Receivables and proceeds thereof;
(iv) the provisions of the Indenture are effective to create
in favor of the Indenture Trustee, a valid security interest (as
such term is defined in Section 1-201 of the Relevant UCC) in the
Initial Receivables and proceeds thereof to secure payment of the
Notes;
(v) assuming that each of the direction by the Seller to
the Owner Trustee to execute the Notes and the direction by the
Seller to the Indenture Trustee to authenticate and deliver the
Notes has been duly authorized by the Seller, when the Notes have
been duly executed by the Owner Trustee and authenticated and
delivered by the Indenture Trustee in accordance with the terms
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Notes will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Indenture
(vi) assuming that the direction by the Seller to the Owner
Trustee to execute, authenticate and deliver the Certificates has
been duly authorized by the Seller, when the Certificates have
been duly executed, authenticated and delivered by the Owner
Trustee in accordance with the terms of the Trust Agreement and
the Certificates have been delivered to and paid for by the
Seller pursuant to the Sale and Servicing Agreement and the Trust
Agreement, the Certificates will be duly and validly issued and
outstanding and will be entitled to the benefits of the Trust
Agreement;
(vii) the statements in the Prospectus under the caption
"SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the extent
they constitute matters of law or legal conclusions, are correct
in all material respects;
(viii) the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act");
(ix) the Indenture has been duly qualified under the Trust
Indenture Act;
(x) no authorization, approval or consent of any court or
governmental agency or authority is necessary under the Federal
law of the United States or the laws of the State of New York in
connection with the execution, delivery and performance by the
Seller of this Agreement and the Basic Documents to which it is a
party, the execution, delivery and performance by MMCA of the
Note Indemnification Agreement and the Basic Documents to which
it is a party or for the consummation of the transactions
contemplated by this Agreement, the Note Indemnification
Agreement or the Basic Documents, except such as may be required
under state securities laws and such as have been obtained and
made under the Act;
(xi) the Registration Statement was declared effective under
the Act as of the date specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified
therein or was included in the Registration Statement, and, to
the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each
amendment or supplement thereof, as of their respective effective
or issue dates, complies as to form in all material respects with
the requirements of the Act and the Rules and Regulations; such
counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of
such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to the best
knowledge of such counsel, such counsel does not know of any
contracts or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(xii) each of the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Yield
Supplement Agreement and the Assignment constitutes the legal,
valid and binding agreement of the Seller and MMCA, in each case
as to those documents to which it is a party, enforceable against
the Seller and MMCA in accordance with their terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to
indemnification or contribution provisions which may be deemed to
be in violation of the public policy underlying any law or
regulation;
(xiii) assuming due authorization, execution and delivery
by the Indenture Trustee and the Owner Trustee, the Indenture
constitutes the legal, valid and binding agreement of the Trust,
enforceable against the Trust in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in
effect, and subject, as to enforceability, to general principles
of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law) except, as
applicable, that such counsel need not express an opinion with
respect to indemnification or contribution provisions which may
be deemed to be in violation of the public policy underlying any
law or regulation;
(xiv) neither the Trust nor the Seller is and, after
giving effect to the issuance of the Notes and the Certificates
and the sale of the Notes and the application of the proceeds
thereof, as described in the Prospectus, neither the Trust nor
the Seller will be, an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(xv) the Notes, the Certificates, the Purchase Agreement,
the Administration Agreement, the Sale and Servicing Agreement,
the Yield Supplement Agreement, the Trust Agreement, this
Agreement and the Indenture each conform in all material respects
with the descriptions thereof contained in the Registration
Statement and the Prospectus; and
(xvi) the Trust Agreement is the legal, valid and
binding agreement of the Seller, enforceable against the Seller,
in accordance with its terms under the law of the State of
Delaware.
(f) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the
Seller, dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that for federal income tax purposes (i) the Notes will be
characterized as indebtedness of the Trust, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable
as a corporation and (iii) the statements set forth in the Prospectus
under the headings "SUMMARY OF TERMS ERISA Considerations", "ERISA
CONSIDERATIONS", "SUMMARY OF TERMS Tax Status", "FEDERAL INCOME TAX
CONSEQUENCES" and "TERMS OF THE NOTES Terms of the Indenture " (last
sentence of fourth paragraph under "Events of Default Under the
Indenture" and last sentence of first paragraph under "Remedies
Following an Event of Default" only) to the extent such statements
constitute matters of law or legal conclusions with respect thereto,
are correct in all material respects.
(g) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the
Seller, dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that (i) for California state franchise and income tax purposes (A)
the Trust will not be taxable as a corporation and (B) the Notes will
be treated as indebtedness, (ii) the Notes will be characterized as
indebtedness for Delaware state income tax purposes, (iii) the Trust
will not be subject to Delaware state franchise or income tax as a
separate entity and (iv) the statements set forth in the Prospectus
under the headings "SUMMARY OF TERMS-Tax Status" and " STATE TAX
CONSEQUENCES", to the extent such statements constitute matters of law
or legal conclusions with respect thereto, are correct in all material
respects.
(h) The Representative shall have received from Xxxxx & Wood
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as
the Representative may require, and the Seller shall have furnished to
such counsel such documents as it may request for the purpose of
enabling it to pass upon such matters.
(i) The Representative shall have received a certificate, dated
the Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer, or
equivalent officer or officers, of each of the Seller and MMCA in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Seller in this Agreement are true and correct; the representations
of MMCA in the Note Indemnification Agreement are true and correct;
the Seller or MMCA, as applicable, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; the representations and
warranties of the Seller or MMCA, as applicable, in the Basic
Documents are true and correct as of the dates specified in such
agreements; the Seller or MMCA, as applicable, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date; no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to
the date of the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), business,
properties or results of operations of the Seller or MMCA or their
respective businesses except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of Pryor,
Cashman, Xxxxxxx & Xxxxx, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of
New York;
(ii) the Indenture Trustee has the full corporate trust
power to accept the office of indenture trustee under the
Indenture and to enter into and perform its obligations under the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement;
(iii) the execution and delivery of the Indenture and
the Administration Agreement and the acceptance of the Sale and
Servicing Agreement and the performance by the Indenture Trustee
of its obligations under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly
authorized by all necessary corporate action of the Indenture
Trustee and each has been duly executed and delivered on behalf
of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations
of the Indenture Trustee enforceable against the Indenture
Trustee in accordance with their terms under the laws of the
State of New York and the federal law of the United States;
(v) the execution and delivery by the Indenture Trustee of
the Indenture and the Administration Agreement and the acceptance
of the Sale and Servicing Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any New York or United States federal governmental authority,
other than the qualification of the Indenture Trustee under the
Trust Indenture Act;
(vi) each of the Notes has been duly authenticated and
delivered by the Indenture Trustee;
(vii) neither the consummation by the Indenture Trustee
of the transactions contemplated in the Sale and Servicing
Agreement, the Indenture or the Administration Agreement nor the
fulfillment of the terms thereof by the Indenture Trustee will
conflict with, result in a breach or violation of, or constitute
a default under any law or the charter, By-laws or other
organizational documents of the Indenture Trustee or the terms of
any indenture or other agreement or instrument known to such
counsel and to which the Indenture Trustee or any of its
subsidiaries is a party or is bound or any judgment, order or
decree known to such counsel to be applicable to the Indenture
Trustee or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Indenture Trustee or any of its
subsidiaries;
(viii) to such counsel's knowledge there is no action,
suit or proceeding pending or threatened against the Indenture
Trustee (as trustee under the Indenture or in its individual
capacity) before or by any governmental authority that if
adversely decided, would materially adversely affect the ability
of the Indenture Trustee to perform its obligations under the
Indenture, the Sale and Servicing Agreement or the Administration
Agreement; and
(ix) the execution, delivery and performance by the
Indenture Trustee of the Sale and Servicing Agreement, the
Indenture and the Administration Agreement will not subject any
of the property or assets of the Trust or any portion thereof, to
any lien created by or arising with respect to the Indenture
Trustee that are unrelated to the transactions contemplated in
such Agreements.
(k) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger P.A., counsel to the Owner Trustee, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under
the laws of the State of Delaware;
(ii) the Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the
Trust Agreement and, on behalf of the Trust, under the other
Basic Documents to which it is a party and has duly authorized,
executed and delivered such Basic Documents and such Basic
Documents constitute the legal, valid and binding agreement of
the Owner Trustee, enforceable in accordance with their terms,
except that certain of such obligations may be enforceable solely
against the Trust Property (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights generally from
time to time in effect, and subject, as to enforceability, to
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iii) the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee as owner trustee
and authenticating agent; each of the Notes has been duly
executed by the Owner Trustee, on behalf of the Trust;
(iv) the execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, of the other Basic
Documents to which it is a party and the performance by the Owner
Trustee of its obligations thereunder do not conflict with,
result in a breach or violation of, or constitute a default under
the Articles of Association or By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner
Trustee of the Trust Agreement and, on behalf of the Trust, of
the other Basic Documents to which it is a party do not require
any consent, approval or authorization of, or any registration or
filing with, any Delaware or United States federal governmental
authority having jurisdiction over the trust power of the owner
Trustee, other than those consents, approvals or authorizations
as have been obtained and the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware.
(l) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that:
(i) the Trust has been duly formed and is validly existing
as a business trust under the Delaware Trust Act;
(ii) the Trust has the power and authority under the
Delaware Trust Act and the Trust Agreement, and the Trust
Agreement authorizes the Owner Trustee, to execute, deliver and
perform its obligations under the Sale and Servicing Agreement,
the Indenture, the Administration Agreement, the Note Depository
Agreement, the Notes and the Certificates;
(iii) to the extent that Article 9 of the UCC as in
effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflict of laws principles), and
assuming that the security interest created by the Indenture in
the Receivables has been duly created and has attached, upon the
filing of a financing statement with the Secretary of State of
Delaware the Indenture Trustee will have a perfected security
interest in the Trust's rights in such Receivables and the
proceeds thereof, and such security interest will be prior to any
other security interest granted by the Trust that is perfected
solely by the filing of financing statements under the Delaware
UCC, excluding purchase money security interests under section9-
312(4) of the Delaware UCC and temporarily perfected security
interests in proceeds under section9-306(3) of the Delaware UCC;
(iv) no re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals;
(v) assuming that the Notes have been duly executed by the
Owner Trustee on behalf of the Trust, and assuming that the Notes
have been duly authenticated by the Indenture Trustee, when the
Notes have been delivered in accordance with the Indenture, the
Notes will be validly issued and entitled to the benefits of the
Indenture;
(vi) assuming that the Certificates have been duly
authorized, executed and authenticated by the Owner Trustee on
behalf of the Trust, when the Certificates have been issued and
delivered in accordance with the instructions of the Seller, the
Certificates will be validly issued and entitled to the benefits
of the Trust Agreement; and
(vii) under 12 Del. C. section3805(b), no creditor of
any Certificateholder (including creditors of the Seller in its
capacity as Certificateholder) shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement.
(m) The Representative shall have received an opinion of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel to the Seller Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Seller Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under
the laws of the State of Delaware;
(ii) the Seller Trustee has full corporate trust power and
authority to enter into and perform its obligations under the
Seller Trust Agreement and has duly authorized, executed and
delivered the Seller Trust Agreement and the Seller Trust
Agreement constitutes the legal, valid and binding agreement of
the Seller Trustee, enforceable in accordance with its terms;
(iii) the execution and delivery by the Seller Trustee
of the Seller Trust Agreement and the performance by the Seller
Trustee of its obligations thereunder do not conflict with,
result in a breach or violation of, or constitute a default under
the Articles of Association or By-laws of the Seller Trustee; and
(iv) the execution, delivery and performance by the Seller
Trustee of the Seller Trust Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any Delaware or United States federal governmental authority
having jurisdiction over the trust power of the Seller Trustee,
other than those consents, approvals or authorizations as have
been obtained.
(n) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Seller, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, (i) with respect to
the characterization of the transfer of the Receivables by MMCA to the
Seller and from the Seller to the Trust and (ii) to the effect that
should MMCA become the debtor in a case under the Bankruptcy Code, and
the Seller would not otherwise properly be a debtor in a case under
the Bankruptcy Code, and if the matter were properly briefed and
presented to a court exercising bankruptcy jurisdiction, the court,
exercising reasonable judgment after full consideration of all
relevant factors, should not order, over the objection of the
Certificateholders or the Noteholders, the substantive consolidation
of the assets and liabilities of the Seller with those of MMCA and
such opinion shall be in substantially the form previously discussed
with the Representative and counsel for the Underwriters and in any
event satisfactory in form and in substance to the Representative and
counsel for the Underwriters.
(o) The Representative shall have received evidence satisfactory
to it and its counsel that, within 10 days of the Closing Date, UCC-1
financing statements have been or are being filed in the office of the
Secretary of State of the state of (i) California reflecting the
transfer of the interest of MMCA in the Receivables and the proceeds
thereof to the Seller and the transfer of the interest of the Seller
in the Receivables and the proceeds thereof to the Trust and (ii)
Delaware reflecting the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
(p) The Representative shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Seller, dated the Closing Date and satisfactory in form and substance
to the Representative and the counsel for the Underwriters to the
effect that (i) the provisions of the Indenture are effective to
create a valid security interest in favor of the Indenture Trustee, to
secure payment of the Notes, in all "securities entitlements" (as
defined in Section 8-102(a)(17) of the New York UCC) with respect to
"financial assets" (as defined in Section 8-102(a)(9) of the New York
UCC) now or hereafter credited to the Reserve Account (such securities
entitlements, the "Securities Entitlements"), (ii) the provisions of
the control agreement for purposes of Article 8 of the New York UCC
are effective to perfect the security interest of the Indenture
Trustee in the Securities Entitlements and (iii) no security interest
of any other creditor of the Trust will be prior to the security
interest of the Indenture Trustee in such Securities Entitlements.
(q) The Class A-1, Class A-2 and Class A-3 Notes shall have been
rated at least "Aaa" and "AAA" by Xxxxx'x and Standard & Poor's,
respectively, and the Class B Notes shall have been rated at xxxxx
"X0" and "A" by Xxxxx'x and Standard & Poor's, respectively.
(r) The Representative shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for purposes of this subsection.
(s) On or prior to the Closing Date, the Certificates shall have
been issued to the Seller.
(t) The Representative shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and each other counsel for the Seller, a
letter dated the Closing Date to the effect that the Underwriters may
rely upon each opinion rendered by such counsel to either Standard &
Poor's or Xxxxx'x in connection with the rating of any Class of the
Notes, as if each such opinion were addressed to the Underwriters.
(u) The Representative shall receive from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, and each other counsel for the Seller, reliance
letters with respect to each Opinion of Counsel required to be
delivered to either Standard & Poor's or Xxxxx'x in connection with
each transfer to the Trust of Subsequent Receivables.
The Seller will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Seller will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Seller by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided,
further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased
the Notes concerned, to the extent that the untrue statement or
omission or alleged untrue statement or omission was eliminated or
remedied in the Prospectus, which Prospectus was required to be
delivered by such Underwriter under the Act to such person and was not
so delivered if the Seller had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Seller against any losses, claims, damages or
liabilities to which the Seller may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Seller by such Underwriter through the Representative specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Seller in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter:
the figures on the cover page concerning the terms of the offering by
the Underwriters, the concession and reallowance figures appearing
under the caption "Underwriting" and the information contained in the
fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party if indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims
that are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Seller on the one
hand and the Underwriters on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Seller on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Seller on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting
expenses) received by the Seller bear to the total underwriting
discounts and commissions received by the Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Seller or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Seller, to each officer of the Seller who has
signed the Registration Statement and to each person, if any, who
controls the Seller within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing
Date and the aggregate principal amount of Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Notes that the Underwriters are
obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Seller for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes that such defaulting Underwriters agreed
but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative
and the Seller for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Seller,
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or the Seller or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Notes
have been purchased hereunder the representations and warranties in Section
2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (ii), (iii) or
(iv) of Section 6(c), the Seller will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at Eleven Madison Avenue, 23rd Floor, New
York, New York 10010, Attention: Investment Banking
Department Transactions Advisory Group, or, if sent to the Seller, will be
mailed, delivered or sent by facsimile and confirmed to it at X.X. Xxx
0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Secretary/Treasurer,
Telecopy: (000) 000-0000; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied
and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all
the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of
the counterparts hereof, whereupon it will become a binding agreement
between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
& Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
Acting on behalf of itself and as
the Representative of the several
Underwriters.
SCHEDULE A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class B
Underwriter Notes Notes Notes Notes
----------- --------- --------- --------- ---------
Credit Suisse First
Boston Corporation $108,668,000 $70,000,000 $47,334,000 $62,000,000
X.X. Xxxxxx & Co. $108,666,000 $70,000,000 $47,333,000 $0
Xxxxxxx Xxxxx Barney Inc. $108,666,000 $70,000,000 $47,333,000 $0
------------ ------------ ------------ -----------
Total $326,000,000 $210,000,000 $142,000,000 $62,000,000
============ ============ ============ ===========
