Exhibit No. 1.1
$411,980,000
MMCA AUTO OWNER TRUST 1999-1
$91,000,000 5.066% CLASS A-1 ASSET BACKED NOTES
$110,000,000 5.43% CLASS A-2 ASSET BACKED NOTES
$120,000,000 5.50% CLASS A-3 ASSET BACKED NOTES
$90,980,000 5.63% CLASS A-4 ASSET BACKED NOTES
MMCA AUTO RECEIVABLES, INC.
UNDERWRITING AGREEMENT
January 12, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Representative of the several Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
1. Introductory. MMCA Auto Receivables, Inc., a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause MMCA Auto Owner Trust 1999-1 (the "Trust") to issue
and sell $91,000,000 aggregate principal amount of 5.066% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), $110,000,000 aggregate principal
amount of 5.43% Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
$120,000,000 aggregate principal amount of 5.50% Class A-3 Asset Backed
Notes (the "Class A-3 Notes") and $90,980,000 aggregate principal amount of
5.63% Class A-4 Asset Backed Notes (the "Class A-4 Notes," and together
with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the
"Notes"). The Notes will be issued pursuant to the Indenture dated as of
January 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 $61,560,349 aggregate principal amount of
certificates of beneficial interest (the "Certificates"), each representing
an interest in the Trust Property. The Company will retain the
Certificates. The Certificates will be issued pursuant to the Amended and
Restated Trust Agreement, dated as of January 1, 1999 (the "Trust
Agreement"), between the Company and Wilmington Trust Company, as Owner
Trustee. The Certificates are 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- and medium-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 received thereunder on or after the related
Cutoff Date. The Receivables will be sold to the Trust by the Company and
be serviced for the Trust by Mitsubishi Motors Credit of America, Inc.
("MMCA" or, in its capacity as servicer, 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 January 1, 1999 (the "Sale
and Servicing Agreement"), among the Trust, the Company 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 Company
hereby agrees with the several Underwriters named in Schedule A hereto (the
"Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-66063)
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 "1933 Act"), and is not proposed to be amended
or (ii) is proposed to be amended by amendment or post-effective
amendment. If the Company 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 1933 Act
("Rule 462(c)"). For purposes of this Agreement, "Effective Time"
means (i) if the Company has advised ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), 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 Company 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 paragraph
(b) of Rule 430A under the 1933 Act ("Rule 430A Information"), 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 1933 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 1933 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 1933
Act and the rules and regulations of the Commission thereunder (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 1933 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 1933 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 Company by any Underwriter
through the Representative specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation 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 Company 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 Company of Notes, except such as have
been obtained and made under the 1933 Act, such as may be required
under state securities laws and the filing of any financing statements
required to perfect the Company's, the Trust's and the Indenture
Trustee's interest in the Receivables, which financing statements will
be filed in the appropriate offices within ten (10) days of the
Closing Date.
(e) The Company is not in violation of its Certificate of
Incorporation or By-laws 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 Company 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 Company or any of its properties, or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company
is subject, or the Certificate of Incorporation or By-laws of the
Company, and the Company 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 Company will have directed the
Owner Trustee to authenticate and execute the Certificates and, when
delivered and paid for pursuant to 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) The Company 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 Company, would individually or in the
aggregate have a material adverse effect on the Company.
(h) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or any
of its properties that, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business or results of operations of
the Company, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or the
other Basic Documents to which it is a party, or which are otherwise
material in the context of the issuance and sale of the Notes or the
issuance of the Certificates; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(i) As of the Closing Date, the representations and warranties
of the Company contained in the Basic Documents will be true and
correct.
(j) 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 Company, whether or not arising
in the ordinary course of business and (ii) there have been no
transactions entered into by the Company, other than those in the
ordinary course of business, which are material with respect to the
Company.
(k) Each of the Basic Documents to which the Company is a party
has been duly authorized by the Company and, when duly executed and
delivered by the Company and the other parties thereto, will
constitute a valid and binding agreement of the Company, enforceable
against the Company 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).
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The Company has authorized the conveyance of the Receivables
to the Trust and, as of the Closing Date, the Company has directed the
Trust to execute and issue the Notes and the Certificates and to sell
the Notes.
(n) The Company's assignment and delivery of the Receivables to
the Trust on the related Transfer Dates will vest in the Trust all of
the Company's right, title and interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(o) 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.
(p) The Computer Tapes of the Receivables created as of the
related Cutoff Dates and made available to the Representative by the
Servicer are or will be, as applicable, complete and accurate as of
the dates thereof and include or will include, as applicable,
identifying descriptions of the Receivables listed on Schedule A to
the Sale and Servicing Agreement.
(q) 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 Company at or prior to the Closing Date to the extent
then due.
(r) 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 Company 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
Company is a debtor or guarantor.
(s) The Company is not and, after giving effect to the issuance
of the 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 Company agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of, in the case of (i) the
Class A-1 Notes, 5.066% of the principal amount thereof; (ii) the Class A-2
Notes, 5.43% of the principal amount thereof; (iii) the Class A-3 Notes,
5.50% of the principal amount thereof; and (iv) the Class A-4 Notes, 5.63%
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 Company 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 at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or by wire transfer
to an account in New York previously designated to ▇▇▇▇▇▇▇ ▇▇▇▇▇ by the
Company at a bank acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York
time, on January 20, 1999, or at such other time not later than seven full
business days thereafter as ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at least 24
hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP on the Closing Date. The
Certificates to be so delivered will be in definitive form, in authorized
denominations and registered in the name of the Company and will be made
available for checking at the above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ 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 "1934 Act"), the parties hereto have agreed that the
Closing Date will be not later than January 20, 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 Company. The Company agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and delivery
of this Agreement, the Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (1) (or, if
applicable and if consented to by ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Company will
advise the Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Company 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 Company 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 1933 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 1933
Act, the Company 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 Company 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 1933 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 Company 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 to be
delivered under the 1933 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 Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company 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 Company 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 Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish
to the Representative by first-class mail as soon as practicable,
(i) all documents distributed, or caused to be distributed, by the
Company to Noteholders, (ii) all documents filed, or caused to be
filed, by the Company with the Commission pursuant to the 1934 Act,
any order of the Commission thereunder and (iii) such other
information in the possession of the Company concerning the Trust as
the Representative from time to time may reasonably request.
(i) The Company 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) 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 Company's officers and employees and any other expenses of the
Company 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 ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies ("Standard
& Poor's" and, together with ▇▇▇▇▇'▇, the "Rating Agencies") is
conditional upon the furnishing of documents or the taking of any
other action by the Company, the Company shall furnish such documents
and take any such other action.
(k) On or before the related Transfer Date, the Company shall
cause the computer records of the Company 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
Company 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 Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company 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 1933 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 Company) set forth in the Registration
Statement and the Prospectus (and any supplements thereto), agrees
with the accounting records of the Trust, MMCA and the Company,
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 the Rule 430A
Information, 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 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
Company or the Representative, shall be contemplated by the
Commission.
(c) The Representative shall have received an opinion of ▇. ▇▇▇▇
▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; the Company 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 Company has full power and authority to
enter into and perform its obligations under this Agreement and
the Basic Documents to which it is a party, to direct the Owner
Trustee to execute the Notes and the Certificates, 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 Company to the Indenture
Trustee to authenticate the Notes and the direction by the
Company to the Owner Trustee to execute the Notes has been duly
authorized by the Company and, when the Notes have been duly
executed and delivered by the Owner Trustee and, when
authenticated 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, will be duly and validly
issued and outstanding and will be entitled to the benefits of
the Indenture;
(iv) the direction by the Company to the Owner Trustee to
authenticate and execute the Certificates has been duly
authorized by the Company and, when the Certificates have been
duly executed, authenticated and delivered in accordance with the
terms of the Trust Agreement and the Certificates have been
delivered to and paid for by the Company 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) each Basic Document to which the Company or MMCA is a
party has been duly authorized, executed and delivered by the
Company and MMCA, respectively;
(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
Company 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 Company 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 ten (10) days of the Closing Date;
(ii) such as have been obtained and made under the 1933 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 Company, 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 Company pursuant to
the terms of the Certificate of Incorporation or the By-Laws of
MMCA or the Company, or any statute, rule, regulation or order of
any governmental agency or body, or any court having jurisdiction
over MMCA or the Company or their respective properties, or any
agreement or instrument known to such counsel after due
investigation to which MMCA or the Company is a party or by which
MMCA or the Company 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 Company 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 Company, (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 Company 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 "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES";
(x) the statements in the Registration Statement under the
heading "CERTAIN 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 Company 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 the Company, the Trust,
the Owner Trustee or the Indenture Trustee;
(xii) this Agreement has been duly authorized, executed and
delivered by the Company; and the Note Indemnification Agreement
has been duly authorized, executed and delivered by MMCA;
(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 Assignment dated as of January 1, 1999 from MMCA
to the Company has been duly authorized, executed and delivered
by MMCA;
(xv) the Receivables are chattel paper as defined in the
UCC; and
(xvi) immediately prior to the sale of Receivables by MMCA
to the Company 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 Company. Immediately prior to the
sale of Receivables by the Company to the Trust pursuant to the
Sale and Servicing Agreement, the Company 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.
(d) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Company, 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 Company'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 naming the Company as debtor
and the Trust as secured party 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 Company
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 Company to
the Indenture Trustee to authenticate the Notes and the direction
by the Company to the Owner Trustee to execute and deliver the
Notes has been duly authorized by the Company, when the Notes
have been duly executed and delivered by the Owner Trustee and
authenticated 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 Company to the
Owner Trustee to authenticate and execute the Certificates has
been duly authorized by the Company, when the Certificates have
been duly executed, authenticated and delivered in accordance
with the terms of the Trust Agreement and the Certificates have
been delivered to and paid for by the Company 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
"CERTAIN 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
Company 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 have been
obtained and made under the 1933 Act;
(xi) the Registration Statement was declared effective
under the 1933 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
1933 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 1933 Act and the Rules and
Regulations; such counsel have no reason to believe that any part
of the Registration Statement or any amendment thereto, as of its
effective date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and to the best knowledge of such counsel,
such counsel does not know of any contracts or documents of a
character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus;
(xii) each of the 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 Company and MMCA, in each case as to
those documents to which it is a party, enforceable against the
Company 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 Company is and, after
giving effect to the issuance and sale of the Notes and the
Certificates and the application of the proceeds thereof, as
described in the Prospectus, neither the Trust nor the Company
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 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 Company, enforceable against the Company, in
accordance with its terms under the law of the State of Delaware.
(e) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel for the
Company, 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 a 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", "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES" and "DESCRIPTION OF THE TERMS OF THE NOTES
Description of the 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 Under the Indenture" only), to the extent such statements
constitute matters of law or legal conclusions with respect thereto,
are correct in all material respects.
(f) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel for the
Company, 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) for California and Delaware state income and
franchise tax purposes, the statements set forth in the Prospectus
under the headings "SUMMARY OF TERMS Tax Status" and "CERTAIN STATE
TAX CONSEQUENCES", 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 from Brown & 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 Company shall have furnished
to such counsel such documents as it may request for the purpose of
enabling it to pass upon such matters.
(h) 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 of each
of the Company and MMCA in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are
true and correct; the representations of MMCA in the Note
Indemnification Agreement are true and correct; the Company 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
Company or MMCA, as applicable, in the Basic Documents are true and
correct as of the dates specified in such agreements; the Company 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 in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company or MMCA, whether or not arising in the
ordinary course of business.
(i) The Representative shall have received an opinion of ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, 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 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.
(j) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 and delivered 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.
(k) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 Business Trust Act, 12
Del.C. section3801 et seq. (the "Delaware Act");
(ii) the Trust has the power and authority under the
Delaware 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 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 Company, the
Certificates will be validly issued and entitled to the benefits
of the Trust Agreement; and
(vi) under 12 Del. C. section3805(b), no creditor of any
Certificateholder (including creditors of the Company 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.
(l) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company,
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
Company and from the Company to the Trust and (ii) to the effect that
should MMCA become the debtor in a case under the Bankruptcy Code, and
the Company 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 Company 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.
(m) The Representative shall have received evidence satisfactory
to it and its counsel that, within ten (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 Company and the transfer of the interest of
the Company 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.
(n) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Company, 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.
(o) ▇▇▇▇▇'▇ and Standard & Poor's shall have rated (i) the Class
A-1 Notes P-1 and A-1+, respectively, and (ii) each of the Class A-2
Notes, Class A-3 Notes and Class A-4 Notes Aaa and AAA, respectively.
(p) The Representative shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇ & 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.
(q) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(r) The Representative shall have received from ▇▇▇▇▇▇▇, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and each other counsel for the Company, 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 ▇▇▇▇▇'▇ in connection with the rating of any Class of the
Notes, as if each such opinion were addressed to the Underwriters.
(s) The Representative shall receive from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A. or other applicable
counsel reliance letters with respect to each Opinion of Counsel
required to be delivered to the Rating Agencies in connection with
each transfer to the Trust of Subsequent Receivables.
The Company 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 Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto), including the Rule
430A Information, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto). The foregoing indemnity with respect to
any untrue statement contained in or any omission from any preliminary
prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Notes that are the
subject thereof if (i) the untrue statement or omission contained in such
preliminary prospectus was corrected in the Prospectus; (ii) such person
was not sent or given a copy of the Prospectus at or prior to the written
confirmation of the sale of such Notes to such person if required by
applicable law; and (iii) the Company satisfied its obligation pursuant to
Section 5(e) of this Agreement to provide a sufficient number of copies of
the Prospectus to the Underwriters.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the
case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim 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 at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
7(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to herein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes pursuant
to this Agreement or (ii) if the allocation provided by clause (i) 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 Company on the one hand and
of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other hand in connection with the offering of
the Notes pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Notes pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Notes as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, 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 any 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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to
the principal amount of Notes set forth opposite their respective
names in Schedule A hereto (after giving effect to Section 9, if
applicable) and not joint.
8. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, (a) any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, or
(b) 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 and light-and medium-duty truck
financing business of the Trust, the Company, Mitsubishi Motor Sales of
America, Inc., Mitsubishi Motors Corporation or MMCA which, in the judgment
of 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) if there has occurred any downgrading in the rating of
the debt securities of the Company by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of
Rule 436(g) under the 1933 Act), or any public announcement that such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a prospective change in international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable to market the Notes or to
enforce contracts for the sale of the Notes; (iv) if trading in any
securities of the Company, MMCA or Mitsubishi Motor Sales of America, Inc.
has been suspended or materially limited by the Commission; (v) if trading
generally on either the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or
by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority; or (vi) if a banking moratorium
has been declared by federal, New York or California authorities.
9. 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 Company 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 Company 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
Company, except as provided in Section 10. 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.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company 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 Company 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 Sections 8 or 9 or if for any reason
the purchase of the Notes by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company
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 9 or the occurrence of any event
specified in clause, (iii), (v) or (vi) of Section 8(c), the Company 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.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile
and confirmed to the Representative at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, World Financial Center,
New York, New York, 10281-1201, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
(facsimile number (▇▇▇) ▇▇▇-▇▇▇▇), or, if sent to the Company, will be
mailed, delivered or sent by facsimile and confirmed to it at P.O. Box
6038, Cypress, California 90630-5205, Attention: Secretary/Treasurer,
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied
and confirmed to such Underwriter.
12. 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 Company or by a trust for which the Company 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 Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
13. 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.
14. 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.
15. 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.
16. 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 Company 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 Company one
of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES, INC.
By: /s/ C. A. ▇▇▇▇▇▇▇
---------------------------------
Name: C. A. ▇▇▇▇▇▇▇
Title: Executive Vice President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
----------------------------- --------- --------- --------- ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated $ 45,500,000 $ 55,000,000 $ 60,000,000 $ 45,490,000
▇▇▇▇▇▇ Brothers Inc. 45,500,000 55,000,000 60,000,000 45,490,000
------------ ------------ ------------ ------------
Total $ 91,000,000 $110,000,000 $120,000,000 $ 90,980,000
============ ============ ============ ============
