Exhibit 1.1
$740,000,000
MMCA AUTO OWNER TRUST 1999-2
$326,000,000 ___% CLASS A-1 ASSET BACKED NOTES
$210,000,000 ___% CLASS A-2 ASSET BACKED NOTES
$142,000,000 ___% CLASS A-3 ASSET BACKED NOTES
$62,000,000 ___% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
October ____, 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 ____% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $210,000,000 aggregate principal amount of ____% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $142,000,000 aggregate principal
amount of ____% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), and
$62,000,000 aggregate principal amount of ____% 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 "Inden-
ture 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 Certifi-
xxxxx. 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 Subse-
quent 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 prospec-
tus, has been filed with the Securities and Exchange Commis-
sion (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 pro-
posed to be amended by amendment or post-effective amend-
ment. If the Seller does not propose to amend the registra-
tion 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 de-
clared 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 Effec-
tive 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 State-
ment". The form of prospectus relating to the Notes, as
first filed with the Commission pursuant to and in accor-
dance 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 mate-
rial 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 require-
ments 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 re-
quired to be stated therein or necessary to make the state-
ments therein not misleading and (iii) no additional regis-
tration 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 Under-
writer 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 ob-
tained and made under the Act, such as may be required under
state securities laws and the filing of any financing state-
ments 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 instru-
ment 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 stat-
ute, 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 docu-
ments of the Seller, and the Seller has full power and
authority to authorize and issue the Notes and the Certifi-
xxxxx and to sell the Notes as contemplated by this Agree-
ment, 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 Certifi-
xxxxx and, when delivered and paid for pursuant to the Sale
and Servicing Agreement and the Trust Agreement, the Certif-
icates 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, au-
thorities 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 proceed-
ings relating to the revocation or modification of any such
certificate, authority or permit that, if determined ad-
versely to the Seller, would individually or in the aggre-
gate 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 affect-
ing the Seller or any of its properties that, if determined
adversely to the Seller, would individually or in the aggre-
gate have a material adverse effect on the condition (xxxxx-
cial 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 Agree-
ment 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 pro-
ceedings 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 agree-
ment of the Seller, enforceable against the Seller in accor-
dance 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 en-
forcement 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 Re-
ceivables 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, secu-
rity interest, pledge, adverse claim, charge or other encum-
brance.
(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 applica-
ble, complete and accurate as of the date thereof and in-
clude or will include, as applicable, an identifying de-
scription 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 fulfill-
ment 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 inden-
ture, 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, _______% of the principal amount thereof; (ii) the
Class A-2 Notes, _______% of the principal amount thereof; (iii) the Class
A-3 Notes, _______% of the principal amount thereof; and (iv) the Class B
Notes, _______% 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.
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 ___, 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 Regis-
tration Statement or the Prospectus, and will not effect
such amendment or supplementation without the Representa-
tive's consent; and the Seller will also advise the Repre-
sentative promptly of the effectiveness of the Registration
Statement (if its Effective Time is subsequent to the execu-
tion and delivery of this Agreement) and of any amendment or
supplementation of the Registration Statement or the Pro-
spectus 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 lift-
ing, if issued.
(c) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act in connec-
tion 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 compli-
ance. 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 prelimi-
nary prospectus, and, so long as delivery of a prospectus
relating to the Notes is required under the Act in connec-
tion 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 fur-
nished on or prior to 3:00 p.m., New York time, on the
business day following the later of the execution and deliv-
ery 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 deliv-
ered 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 employ-
ees 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 Agree-
ment, 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 registra-
tion statement to be filed shortly prior to such Effective
Time), of Ernst & Young LLP, in form and substance satisfac-
tory 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 per-
formed certain specified procedures as a result of which
they determined that certain information of an accounting,
financial or statistical nature (which is limited to ac-
counting, 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, ex-
cluding 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 registra-
tion 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 execu-
tion and delivery of this Agreement, the Effective Time
shall have occurred not later than [5:00 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 comple-
tion 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 Con-
xxxxx 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, calam-
ity 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 Represen-
tative and counsel for the Underwriters, and, in the aggre-
gate to the effect that:
(i) the Seller has been duly formed and is val-
idly 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 author-
ity 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 jurisdic-
tion 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 consum-
mate 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 direc-
tion by the Seller to the Indenture Trustee to authen-
ticate and deliver the Notes has been duly authorized
by the Seller and, when the Notes have been duly exe-
cuted 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 execu-
tion, 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 Pur-
chase Agreement and the transfer of the Trust Property
to the Trust pursuant to the Sale and Servicing Agree-
ment and the filing of a Uniform Commercial Code fi-
nancing statement in Delaware with respect to the grant
by the Trust of a security interest in the Trust Prop-
erty to the Indenture Trustee pursuant to the Inden-
ture, 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 securi-
ties 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 trans-
actions contemplated herein, in the Note Indemnifica-
tion 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 docu-
ments 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 investi-
gation 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 Prospec-
tus 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 Registra-
tion Statement and the Prospectus of statutes, legal
and governmental proceedings and contracts and other
documents are accurate and fairly present the informa-
tion 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 Registra-
tion 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 investi-
gations 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 invalid-
ity of this Agreement, the Note Indemnification Agree-
ment, any Basic Document, the Notes or the Certifi-
xxxxx, (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 ad-
versely affect the performance by the Seller or MMCA of
its obligations under, or the validity or
enforceability of, this Agreement, the Note Indemnifi-
cation 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 autho-
rized, executed and delivered by the Seller;
(xiii) such counsel is familiar with MMCA's
standard operating procedures relating to MMCA's acqui-
sition 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 proce-
dures 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 Agree-
ment and the Assignment, MMCA was the sole owner of all
right, title and interest in, to and under the Receiv-
xxxxx and the other property to be transferred by it to
the Seller. Immediately prior to the sale of Receiv-
xxxxx 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 appropri-
ate 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 autho-
rized 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 RE-
CEIVABLES", 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 execu-
tion, 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 consumma-
tion of the transactions contemplated by this Agree-
ment, 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 coun-
sel need express no opinion as to the financial state-
ments or other financial data contained in the Regis-
tration 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 gen-
eral 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 indemnifi-
cation 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 applica-
ble bankruptcy, insolvency, fraudulent transfer, reor-
ganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in ef-
fect, 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 indemnifi-
cation 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 Invest-
ment 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 descrip-
tions 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 satisfac-
tory 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 indebt-
edness 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 Con-
siderations", "ERISA CONSIDERATIONS", "SUMMARY OF TERMS Tax
Status", "FEDERAL INCOME TAX CONSEQUENCES" and "TERMS OF THE
NOTES Terms of the Indenture " (last sentence of second
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 satisfac-
tory 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 character-
ized as indebtedness for Delaware state income tax purposes,
(iii) the Trust will not be subject to Delaware state xxxx-
chise or income tax as a separate entity and (iv) the state-
ments set forth in the Prospectus under the headings "SUM-
XXXX 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 valid-
ity 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 certifi-
cate, dated the Closing Date, of the Chairman of the Board,
the President or any Vice-President and a principal xxxxx-
cial or accounting officer, or equivalent officer or offi-
cers, of each of the Seller and MMCA in which such officers,
to the best of their knowledge after reasonable investiga-
tion, 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 Agree-
ment are true and correct; the Seller or MMCA, as applica-
ble, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereun-
der 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 speci-
fied in such agreements; the Seller or MMCA, as applicable,
has complied with all agreements and satisfied all condi-
tions 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 in-
volving a prospective material adverse change, in the condi-
tion (financial or otherwise), business, properties or
results of operations of the Seller or MMCA or their respec-
tive 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 Under-
writers, to the effect that:
(i) the Indenture Trustee is a banking corpora-
tion 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 Inden-
ture and the Administration Agreement and the accep-
tance 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 autho-
rized by all necessary corporate action of the Inden-
ture Trustee and each has been duly executed and deliv-
ered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agree-
ment and the Administration Agreement constitute valid
and binding obligations of the Indenture Trustee en-
forceable 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 Agree-
ment 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 Inden-
ture 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 Inden-
ture 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 Agree-
ment, 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 Under-
writers, 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 deliv-
ered 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 trans-
fer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time
in effect, and subject, as to enforceability, to gen-
eral principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity
or at law);
(iii) the Certificates have been duly exe-
cuted, 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 exe-
cute, deliver and perform its obligations under the
Sale and Servicing Agreement, the Indenture, the Admin-
istration 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 Receiv-
xxxxx 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 perfec-
tion of such security interest except for the filing of
continuation statements at five year intervals;
(v) assuming that the Notes have been duly exe-
cuted 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. section 3805(b), no
creditor of any Certificateholder (including creditors
of the Seller in its capacity as Certificateholder)
shall have any right to obtain possession of, or other-
wise exercise legal or equitable remedies with respect
to, the property of the Trust except in accordance with
the terms of the Trust Agreement.
(viii) The Representative shall have received
an opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, coun-
sel to the Seller Trustee, dated the Closing Date and
satisfactory in form and substance to the Representa-
tive and counsel for the Underwriters, to the effect
that:
(ix) 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;
(x) 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 consti-
tutes the legal, valid and binding agreement of the
Seller Trustee, enforceable in accordance with its
terms;
(xi) the execution and delivery by the Seller
Trustee of the Seller Trust Agreement and the perfor-
xxxxx by the Seller Trustee of its obligations thereun-
der do not conflict with, result in a breach or xxxxx-
tion of, or constitute a default under the Articles of
Association or By-laws of the Seller Trustee; and
(xii) 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 autho-
rizations as have been obtained.
(m) 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 Under-
writers, (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 bank-
ruptcy jurisdiction, the court, exercising reasonable judg-
ment 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 substan-
tially the form previously discussed with the Representative
and counsel for the Underwriters and in any event satisfac-
tory in form and in substance to the Representative and
counsel for the Underwriters.
(n) 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.
(o) 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 pay-
ment 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.
(p) The Class A-1, Class A-2 and Class A-3 Notes shall
have been rated at least "___" and "___" by Xxxxx'x and
Standard & Poor's, respectively, and the Class B Notes shall
have been rated at least "___" and "___" by Xxxxx'x and
Standard & Poor's, respectively.
(q) 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 five days prior to such Closing Date for
purposes of this subsection.
(r) On or prior to the Closing Date, the Certificates
shall have been issued to the Seller.
(s) 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 Under-
writers.
(t) 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 last paragraph at the bottom of the cover
page concerning the terms of the offering by the Underwriters, the legend
concerning overallotments and stabilizing, the concession and reallowance
figures appearing in the third paragraph under the caption "Underwriting"
and the information contained in the [fourth] 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 indemni-
fied 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 subsec-
tion (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:________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:____________________________________
Name:
Title:
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 $ ________ $ ________ $ ________ $ ________
X.X. Xxxxxx Securities
Inc. $ ________ $ ________ $ ________ $ ________
Xxxxxxx Xxxxx Barney
Inc. $ ________ $ ________ $ ________ $ ________
Total $ ________ $ ________ $ ________ $ ________
=========== ========== ========== ==========
