$_________
MMCA AUTO OWNER TRUST 1997-1
$__________ ____% CLASS A-1 MONEY MARKET ASSET BACKED NOTES
$__________ ____% CLASS A-2 ASSET BACKED NOTES
$__________ ____% CLASS A-3 ASSET BACKED NOTES
$__________ ____% CLASS A-4 ASSET BACKED NOTES
MMCA AUTO RECEIVABLES, INC.
UNDERWRITING AGREEMENT
October __, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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 1997-1 (the "Trust") to issue and sell
$_____________ aggregate principal amount of ____% Class A-1 Money Market Asset
Backed Notes (the "Class A-1 Notes"), $_____________ aggregate principal amount
of ____% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), $_____________
aggregate principal amount of ____% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), and $_____________ aggregate principal amount of ____% 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 October 1, 1997 (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 $______________ aggregate principal amount of ____%
Asset Backed Certificates (the "Certificates"), each representing an interest in
the Trust Property consisting of a portion of Last Scheduled Payments. The
Company will retain the Certificates. The Certificates will be issued pursuant
to the Amended and Restated Trust Agreement, dated as of ___________, 1997 (the
"Trust Agreement"), between the Company and Wilmington Trust Company, as Owner
Trustee. The Certificates are subordinated to the Notes.
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The assets of the Trust will include, among other things, a pool of motor
vehicle retail installment sale contracts secured by new and used automobiles
and light- and medium-duty trucks (the "Receivables"), with respect to Actuarial
Receivables, certain monies due thereunder on or after October 1, 1997 (the
"Cutoff Date"), and, with respect to Simple Interest Receivables, certain monies
due or received thereunder on or after the Cutoff Date, such Receivables to be
sold to the Trust by the Company and to 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 October
1, 1997 (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. 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. 33-32937) relating to
the Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Act"), and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If the 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 Act ("Rule
462(c)"). For purposes of this Agreement, "Effective Time" means (i) if
the Company has advised Credit Suisse First Boston, 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 Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Registration Statement". The form of
prospectus relating to the Notes, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) under the Act ("Rule
424(b)") or, if no such filing is required, as included in the Registration
Statement, is hereinafter referred to as the "Prospectus". No document has
been or will be prepared or distributed in reliance on Rule 434 under the
Act.
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(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary, to make the
statements therein not misleading, and (ii) on the date of this Agreement,
the Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) the Registration Statement and the
Prospectus will conform, in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary, to make
the statements therein not misleading. If the Effective Time is subsequent
to the execution and delivery of this Agreement: (i) on the Effective
Date, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
(ii) neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) no additional registration statement related to the Notes pursuant to
Rule 462(b) has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b).
(c) The 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 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 have been
filed in the appropriate offices prior to the Closing Date (as such term is
defined in Section 3).
(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
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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 or any such subsidiary 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) This Agreement has been duly authorized, executed and delivered
by the Company.
(k) 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.
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(l) The Company's assignment and delivery of the Receivables to the
Trust as of the Closing Date 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.
(m) 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.
(n) The Computer Tape of the Receivables created as of October 1,
1997 and made available to the Representative by the Servicer was complete
and accurate as of the date thereof and includes an identifying description
of the Receivables that are listed on Schedule A to the Sale and Servicing
Agreement.
(o) 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.
(p) 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.
(q) 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, ______% 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 A-4 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 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
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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 by the Company at a bank acceptable to Credit Suisse First Boston, 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 __, 1997, or at such
other time not later than seven full business days thereafter as Credit Suisse
First Boston 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, Xxxxxxx
& Xxxx llp at least 24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx 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 Company and will be made
available for checking at the above office of Skadden, Arps, Slate, Xxxxxxx &
Xxxx 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 __, 1997.
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 Credit Suisse First Boston, 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
6
(if its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the 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 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
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
7
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 Exchange 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) 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 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 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 Company,
the Company shall furnish such documents and take any such other action.
(k) On or before the Closing 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 Closing 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
8
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 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 all information (if any) deemed to be a part
of the initial registration statement as of such time pursuant to Rule
430A(b), and (ii) "Prospectus" shall mean the prospectus included in the
Registration Statement. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this subsection.
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such later date
as shall have been consented to by the Representative. If the Effective
Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a). Prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company 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- and medium-duty truck financing business of
the Trust, the Company, Mitsubishi Motor Sales of America, Inc. ("MMSA"),
9
Mitsubishi Motors Corporation ("MMC") or MMCA which, in the judgment of a
majority in interest of the Underwriters (including the Representative),
materially impairs the investment quality of each Class of the Notes or
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for each Class of the Notes;
(ii) any suspension or limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iii) any banking moratorium declared by Federal, California
or New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the
Underwriters (including the Representative), the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes.
(d) The Representative shall have received an opinion of X. Xxxx
Xxxxxx, 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;
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(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 have been filed in the
appropriate offices prior to the Closing Date; (ii) such as have been
obtained and made under the Act; and (iii) such as may be required
under state securities laws;
(vii) the execution, delivery and performance of this Agreement
and the Basic Documents by the 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
11
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";
12
(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 October __, 1997 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.
(e) The Representatives shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx 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 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;
13
(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 Relevant
UCC) in the Company's rights in the Receivables and proceeds thereof,
which security interest, if characterized as a transfer for security,
will secure payment of the Notes;
(iii) the Financing Statement is in appropriate form for filing in
the relevant filing office under the Relevant UCC. Upon the filing of
the Financing Statement in the relevant filing office, the security
interest in favor of the Owner Trustee in the 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 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
Receivables and proceeds thereof to secure payment of the Notes;
(v) 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;
(vi) 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;
(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;
14
(x) the Indenture is effective to create, in favor of the
Indenture Trustee, a valid security interest (as such term is defined
in Section 1-201 of the UCC in effect in New York) in the Receivables
and the proceeds thereof to secure payment of the Notes;
(xi) 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 may be required under state securities laws and such as
have been obtained and made under the Act;
(xii) 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 have no reason to believe that any part of
the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and to the best knowledge of such counsel, such counsel
does not know of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(xiii) each of the Basic Documents to which the Company or MMCA is
a party constitutes the legal, valid and binding agreement of the
Company and MMCA, enforceable against the Company and MMCA in
accordance with their terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
15
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, this Agreement and the
Indenture each conform in all material respects with the descriptions
thereof contained in the Registration Statement and the Prospectus;
(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; and
(xvii) 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.
(f) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx 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 that is secured by the Receivables, (ii) the
issuance of the Notes will not be treated as a sale of the Receivables by
the Trust, (iii) the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation, and (iv) the
statements set forth in the Prospectus under the headings "SUMMARY--ERISA
Considerations", "ERISA CONSIDERATIONS", "SUMMARY--Tax Status", "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES" and "DESCRIPTION OF THE NOTES--Indenture--"
(last sentence of second paragraph under "--Events of Default" and last
sentence of first paragraph under "--Remedies" 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 Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx 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
California and Delaware state franchise and California and Delaware state
16
income tax purposes (i) the Notes will be characterized as indebtedness of
the Trust that is secured by the Receivables, (ii) the issuance of the
Notes will not be treated as a sale of the Receivables by the Trust,
(iii) the Trust will not be classified as an association (or publicly
traded partnership) taxable as a corporation and (iv) the statements set
forth in the Prospectus under the headings "SUMMARY-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.
(h) 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.
(i) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer 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, nor any development
or event involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of operations of
the Company or MMCA or their respective businesses except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of Xxxxx,
Xxxxxxx, Xxxxxxx & Xxxxx, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York;
(ii) the Indenture Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement;
17
(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
18
(ix) the execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture and the
Administration Agreement will not subject any of the property or
assets of the Trust or any portion thereof, to any lien created by or
arising with respect to the Indenture Trustee that are unrelated to
the transactions contemplated in such Agreements.
(k) The Representative shall have received an opinion of Xxxxx,
Xxxxxxx, Xxxxxxx & Xxxxx, 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.
19
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, 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.
Section 3801 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
Section 9-312(4) of the Delaware UCC and temporarily perfected
security interests in proceeds under Section 9-306(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. Section 3805(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.
(m) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx 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
20
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.
(n) The Representative shall have received evidence satisfactory to
it and its counsel that, on or before 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.
(o) The Representative shall have received an opinion of Xxxxxxx,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, dated the Closing
Date and satisfactory in form and substance to the Representative and the
counsel for the Underwriters with respect to the first priority perfected
security interest of the Indenture Trustee in the Reserve Account Property.
(p) Each Class of the Notes shall have been rated in the highest
rating category by either Xxxxx'x or Standard & Poor's.
(q) The Representative shall have received a letter, dated the
Closing Date, of Xxxxx & 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 Company.
(s) The Representative shall have received from Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx 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 Xxxxx'x in
connection with the rating of any Class of the Notes, as if each such
opinion were addressed to the Underwriters.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
21
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 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 Company 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
Company 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 Company had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company 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 Company by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company 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
22
the bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning overallotments and stabilizing on the inside
front cover page, 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 indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party if indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(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 Company 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 Company 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 Company 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 Company
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 Company 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
23
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company 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 Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company 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
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
nondefaulting 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 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
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 Section
8 or if for
24
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 8 or the
occurrence of any event specified in clause (ii), (iii) or (iv) of Section 6(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.
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 Xxxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Investment Banking Department--Transactions Advisory Group,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at P.O. Box 6038, Cypress, California 90630-5205, 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 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.
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.
25
(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.
26
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: -----------------------------------
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.
27
SCHEDULE A
Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3
Underwriter Notes Notes Notes
----------- --------- --------- ---------
Credit Suisse First Boston
Corporation $ $ $
X.X. Xxxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
-------- -------- --------
Total $ $ $
======== ======== ========
Amount of
Class A-4 Amount of
Underwriter Notes Certificates
----------- --------- ------------
Credit Suisse First Boston
Corporation $ $
X.X. Xxxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
-------- --------
Total $ $
======== ========
SA-1