Exhibit 1.1
$570,166,000
MMCA AUTO OWNER TRUST 2001-4
$49,900,000 2.01% CLASS A-1 ASSET BACKED NOTES
$138,000,000 2.89% CLASS A-2 ASSET BACKED NOTES
$145,000,000 3.97% CLASS A-3 ASSET BACKED NOTES
$197,200,000 4.92% CLASS A-4 ASSET BACKED NOTES
$40,066,000 4.84% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
December 6, 2001
X.X. Xxxxxx Securities Inc.
as Representative of the several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust (the "Seller"), a
Delaware business trust established pursuant to the Amended and Restated
Trust Agreement, dated as of October 1, 1999 (the "MART Trust Agreement"),
between Mitsubishi Motors Credit of America, Inc. ("MMCA") and Chase
Manhattan Bank USA, N.A., as trustee (the "MART Trustee"), proposes,
subject to the terms and conditions stated herein, to cause MMCA Auto Owner
Trust 2001-4 (the "Trust") to issue and sell to the several underwriters
named in Schedule A hereto (the "Underwriters"), acting severally and not
jointly, for whom X.X. Xxxxxx Securities Inc. ("JPMorgan") is acting as
representative (the "Representative"), $49,900,000 aggregate principal
amount of 2.01% Class A-1 Asset Backed Notes (the "Class A-1 Notes"),
$138,000,000 aggregate principal amount of 2.89% Class A-2 Asset Backed
Notes (the "Class A-2 Notes"), $145,000,000 aggregate principal amount of
3.97% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), $197,200,000
aggregate principal amount of 4.92% 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 "Class A Notes") and $40,066,000
aggregate principal amount of 4.84% Class B Asset Backed Notes (the "Class
B Notes" and, together with the Class A Notes, the "Notes"). The Notes will
be issued pursuant to the Indenture, dated as of December 1, 2001 (the
"Indenture"), between the Trust and Bank of Tokyo-Mitsubishi Trust Company,
as trustee (the "Indenture Trustee"), and will represent indebtedness of
the Trust.
Concurrently with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $46,231,816.25 aggregate
principal amount of certificates of beneficial interest (the
"Certificates"), each representing an interest in the property of the Trust
(the "Trust Property"). The Seller will retain the Certificates. The
Certificates will be issued pursuant to the Amended and Restated Trust
Agreement, dated as of December 1, 2001 (the "Trust Agreement"), between
the Seller and Wilmington Trust Company, as trustee (the "Owner Trustee").
The Certificates will be subordinated to the Notes. Capitalized terms used
but not defined herein have the meanings ascribed thereto in the Indenture.
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 sport-utility vehicles to be conveyed to the Trust on
the Closing Date (as such term is defined in Section 3) (the
"Receivables"), (ii) with respect to (a) Actuarial Receivables, certain
monies due thereunder on or after the Cutoff Date, and (b) Simple Interest
Receivables, certain monies due or received thereunder on or after the
Cutoff Date. The Receivables will be sold to the Trust by the Seller and
will be serviced for the Trust by MMCA (in such capacity, the "Servicer").
The term "Basic Documents" means (i) the Indenture, (ii) the Trust
Agreement, (iii) the First Tier Assignment, dated as of December 1, 2001
(the "First Tier Assignment"), as executed by MMCA; (iv) the Sale and
Servicing Agreement, (v) the Purchase Agreement, (vi) the Certificate of
Trust, filed October 18, 2001 (the "Certificate of Trust"), with the
Secretary of State of the State of Delaware, (vii) the Administration
Agreement, dated as of December 1, 2001 (the "Administration Agreement"),
among MMCA, as administrator (the "Administrator"), the Trust and the
Indenture Trustee, (viii) the Note Depository Agreement, dated as of the
Closing Date (the "Note Depository Agreement"), among the Trust, the
Indenture Trustee, the Administrator and The Depository Trust Company, (ix)
the Yield Supplement Agreement, dated as of December 1, 2001 (the "Yield
Supplement Agreement"), between the Seller and MMCA and (x) the Control
Agreement, dated as of December 1, 2001 (the "Control Agreement"), among
the Seller, the Trust, the Servicer, the Indenture Trustee and Bank of
Tokyo-Mitsubishi Trust Company, as securities intermediary. The Seller
hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-71884)
relating to the Notes, including a form of prospectus, has been
filed with the Securities and Exchange Commission (the
"Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not
proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If the Seller does not
propose to amend the registration statement and if any
post-effective amendment to the registration statement has been
filed with the Commission prior to the execution and delivery of
this Agreement, the most recent post-effective amendment has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act ("Rule 462(c)"). For
purposes of this Agreement, "Effective Time" means (i) if the
Seller has advised the Representative that it does not propose to
amend the registration statement, the date and time as of which
the registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) or (ii) if the Seller has advised the Representative that
it proposes to file an amendment or post-effective amendment to
the registration statement, the date and time as of which the
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date of
the Effective Time. The registration statement, as amended at the
Effective Time, including all information (if any) deemed to be a
part of the registration statement as of the Effective Time
pursuant to Rule 430A(b) under the Act ("Rule 430A(b)"), 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 at the Effective Time, is
hereinafter referred to as the "Prospectus". No document has been
or will be prepared or distributed in reliance on Rule 434 under
the Act.
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the
Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date of this
Agreement and on the Closing Date, 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) on the date of this Agreement and on the Closing
Date, 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) under the
Act has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from the Registration
Statement or the Prospectus based upon written information
furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information is that described as
such in Section 7(b).
(c) The Seller has been duly formed and is validly existing
as a business trust under the Delaware Business Trust Act, 12
Del.C. ss. 3801 et. seq. (the "Delaware Trust Act"), with power
and authority to own its properties and conduct its business as
described in the Prospectus, and the Seller is duly qualified to
do business and is in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Seller or the Trust for the
consummation of the transactions contemplated by this Agreement
and the Basic Documents in connection with the issuance of the
Notes and the Certificates and the sale by the Seller of the
Notes, except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing
of any financing statements required to perfect the Seller's, the
Trust's and the Indenture Trustee's interest in the Receivables,
which financing statements will be filed in the appropriate
offices within ten days of the Closing Date.
(e) The Seller is not in violation of the MART Trust
Agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any agreement or instrument to which it
is a party or by which it or its properties are bound which could
have a material adverse effect on the transactions contemplated
herein or in the Basic Documents. The execution, delivery and
performance of this Agreement and the Basic Documents, and the
issuance of the Notes and the Certificates and the sale by the
Seller of the Notes and compliance with the terms and provisions
hereof and thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction
over the Seller or any of its properties, or any agreement or
instrument to which the Seller is a party or by which the Seller
is bound or to which any of the properties of the Seller or any
such subsidiary is subject, or the MART Trust Agreement or other
organizational documents of the Seller, and the Seller has full
power and authority to authorize and issue the Notes and the
Certificates and to sell the Notes as contemplated by this
Agreement, the Indenture and the Trust Agreement, to enter into
this Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(f) On the Closing Date, the Seller will have directed the
Owner Trustee to authenticate and execute the Certificates and,
when executed, authenticated, delivered and paid for pursuant to
the Sale and Servicing Agreement and the Trust Agreement, the
Certificates will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Trust, entitled to the benefits provided in the
Trust Agreement and enforceable in accordance with their terms.
(g) On the Closing Date, the Seller will have directed the
Owner Trustee to execute the Notes and directed the Indenture
Trustee to authenticate and deliver the Notes and, when executed,
authenticated, delivered and paid for pursuant to the Indenture
and this Agreement, the Notes will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Trust, entitled to the benefits
provided in the Indenture and enforceable in accordance with its
terms.
(h) The Seller possesses adequate certificates, authorities
and permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Seller, would individually or in the
aggregate have a material adverse effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Seller or any of its properties that, if determined adversely to
the Seller, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or
results of operations of the Seller, or would materially and
adversely affect the ability of the Seller to perform its
obligations under this Agreement or the other Basic Documents to
which it is a party, or which are otherwise material in the
context of the issuance and sale of the Notes or the issuance of
the Certificates; and no such actions, suits or proceedings are
threatened or, to the Seller's knowledge, contemplated.
(j) As of the Closing Date, the representations and
warranties of the Seller contained in the Basic Documents will be
true and correct.
(k) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller,
whether or not arising in the ordinary course of business and (ii)
there have been no transactions entered into by the Seller, other
than those in the ordinary course of business, which are material
with respect to the Seller.
(l) Each of the Basic Documents to which the Seller is a
party has been duly authorized by the Seller and, when duly
executed and delivered by the Seller and the other parties
thereto, will constitute a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(m) This Agreement has been duly authorized, executed and
delivered by the Seller.
(n) The Seller has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Seller
has directed the Trust to execute and issue the Notes and the
Certificates and to sell the Notes.
(o) The Seller's assignment and delivery of the Receivables
to the Trust on the Closing Date will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrance.
(p) The Trust's assignment of the Receivables to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrance except for any tax lien, mechanics' lien or
other lien or encumbrance that attaches by operation of law.
(q) The Computer Tape of the Receivables created as of the
Closing Date and made available to the Representative by the
Servicer are or will be, as applicable, complete and accurate as
of the date thereof and include or will include, as applicable, an
identifying description of the Receivables that are listed on
Schedule A to the Sale and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Basic Documents, the Notes and the Certificates and
any other agreements contemplated herein or therein shall have
been paid or will be paid by the Seller at or prior to the Closing
Date to the extent then due.
(s) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the
terms hereof and thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Seller
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller is a debtor or
guarantor.
(t) The Seller is not and, after giving effect to the
issuance of the Notes and Certificates and the offering and sale
of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be required to be registered
as an "investment company" as defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, the respective principal amounts of each Class of
Notes set forth opposite the names of the Underwriters in Schedule A hereto
at a purchase price of, in the case of the (i) Class A-1 Notes, 100.000000%
of the principal amount thereof; (ii) Class A-2 Notes, 99.995561% of the
principal amount thereof; (iii) Class A-3 Notes, 99.986692% of the
principal amount thereof; (iv) Class A-4 Notes, 99.989650% of the principal
amount thereof; and (v) Class B Notes, 99.978855% of the principal amount
thereof.
The Seller will deliver against payment of the purchase price
therefor, the Notes of each Class in the form of one or more permanent
global securities in definitive form (the "Global Notes") deposited with
the Indenture Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. Interests in
any permanent Global Notes will be held only in book-entry form through
DTC, except in the limited circumstances described in the Prospectus.
Payment for the Notes shall be made by the Underwriters in Federal (same
day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Representative by the Seller at a
bank acceptable to the Representative, at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York 10036 at
10:00 a.m., New York time, on December 13, 2001, or at such other time not
later than seven full business days thereafter as the Representative and
the Seller determine, such time being herein referred to as the "Closing
Date", against delivery to the Indenture Trustee as custodian for DTC of
the Global Notes representing the Notes. The Global Notes will be made
available for checking at the above office of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP at least 24 hours prior to the Closing Date.
The Seller will deliver the Certificates to the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on the Closing Date. The
certificate for the Certificates so to be delivered will be in definitive
form, in authorized denominations and registered in the name of the Seller
and will be made available for checking at the above office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the parties hereto have agreed that
the Closing Date will be not later than December 13, 2001, unless otherwise
agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus
with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b) not later than
the earlier of (i) the second business day following the execution
and delivery of this Agreement or (ii) the fifteenth business day
after the Effective Date. The Seller will advise the
Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as
filed or the related prospectus, or the Registration Statement or
the Prospectus, and will not effect such amendment or
supplementation without the Representative's consent; and the
Seller will also advise the Representative promptly of the
effectiveness of the Registration Statement (if the Effective Time
is subsequent to the execution and delivery of this Agreement) and
of any amendment of or supplement to the Registration Statement or
the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Seller will promptly notify
the Representative of such event and will promptly prepare and
file with the Commission (subject to the Representative's prior
review and consent pursuant to Section 5(b)), at its own expense,
an amendment or supplement which will correct such statement or
omission, or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the
Trust to make generally available to Noteholders an earnings
statement of the Trust covering a period of at least 12 months
beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after
the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date.
(e) The Seller will furnish to the Representative copies of
the Registration Statement (two of which will be signed and will
include all exhibits), each related preliminary prospectus and, so
long as delivery of a prospectus relating to the Notes is required
under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such
quantities as the Representative requests. The Prospectus shall be
so furnished on or prior to 3:00 p.m., New York time, on the
business day following the later of the execution and delivery of
this Agreement or the Effective Time. All other such documents
shall be so furnished as soon as available. The Seller will pay
the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Seller will arrange for the qualification of the
Notes for offering and sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and will continue such
qualifications in effect so long as required for the distribution
of the Notes.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other
Underwriters, copies of each certificate and the annual statements
of compliance delivered to the Indenture Trustee pursuant to
Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the Sale
and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to the Indenture
Trustee pursuant to Section 3.11 of the Sale and Servicing
Agreement, by first-class mail as soon as practicable after such
statements and reports are furnished to the Indenture Trustee, and
(ii) such other forms of periodic certificates or reports as may
be delivered to the Indenture Trustee, the Owner Trustee or the
Noteholders under the Indenture, the Trust Agreement, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Seller to Noteholders, (ii) all documents
filed, or caused to be filed, by the Seller with the Commission
pursuant to the Exchange Act, any order of the Commission
thereunder and (iii) such other information in the possession of
the Seller concerning the Trust as the Representative from time to
time may reasonably request.
(i) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and the printing of memoranda
relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of
the Seller's officers and employees and any other expenses of the
Seller in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with
respect to the Notes by Xxxxx'x Investors Service, Inc.
("Xxxxx'x"), Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. ("Standard & Poor's") and Fitch, Inc. ("Fitch"
and, together with Xxxxx'x and Standard & Poor's, the "Rating
Agencies") is conditional upon the furnishing of documents or the
taking of any other action by the Seller, the Seller shall furnish
such documents and take any such other action.
(k) On or before the Closing Date, the Seller shall cause the
computer records of the Seller and MMCA relating to the
Receivables to be marked to show the Trust's absolute ownership of
the Receivables and from and after the Closing Date neither the
Seller nor MMCA shall take any action inconsistent with the
Trust's ownership of such Receivables other than as permitted by
the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes
on the Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Seller herein, to the accuracy of the
statements of the Seller's officers made pursuant to the provisions hereof,
to the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time is
prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time
is subsequent to the execution and delivery of this Agreement,
shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior
to such Effective Time), of Ernst & Young LLP, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable Rules
and Regulations and stating in effect that they have performed
certain specified procedures (i) as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Trust, MMCA and the Seller) set forth in the
Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Trust, MMCA
and the Seller, excluding any questions of legal interpretation,
and (ii) with respect to the Receivables.
(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 or other order of the Commission suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Seller or the Representative, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations or retail motor vehicle financing business or
sport-utility vehicle financing business of the Trust, the Seller,
Mitsubishi Motor Sales of America, Inc., Mitsubishi Motors
Corporation 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 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 Notes on the terms and in the manner contemplated in the
Prospectus; (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 hostilities in
which the United States is involved, any declaration of war by
Congress or any substantial national or international calamity or
emergency or any material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets of the United States shall not
be) such that, in the judgment of a majority in interest of the
Underwriters (including the Representative), the effect of any
such outbreak, escalation, declaration, calamity, emergency or
material adverse change makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for each Class of Notes on the terms and in the manner
contemplated in the Prospectus.
(d) The Representative shall have received an opinion of (A)
Xxxxx X. Xxxxx, Esq., Director of Legal Affairs of the Seller and
MMCA, (B) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special New
York counsel to the Seller and MMCA, and (C) Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Trust, in each case
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters and, in the
aggregate, to the effect that:
(i) the Seller has been duly formed and is validly
existing as a business trust under the Delaware Trust Act,
with full power and authority to own its properties and
conduct its business as described in the Prospectus; the
Seller is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such
qualification; and the Seller has full power and authority
under the Delaware Trust Act and under the MART Trust
Agreement to enter into and perform its obligations under
this Agreement and the Basic Documents to which it is a
party, to direct the Indenture Trustee and the Owner Trustee
to execute the Notes and the Certificates, respectively, 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 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 the Note
Indemnification Agreement, dated December 6, 2001 (the "Note
Indemnification Agreement"), between MMCA and the
Representative and the Basic Documents to which it is a party
and to consummate the transactions contemplated hereby and
thereby and had at all times, and now has, the power,
authority and legal right to acquire, own, sell and service
the Receivables;
(iii) each of the direction by the Seller to the Owner
Trustee to execute the Notes and the direction by the Seller
to the Indenture Trustee to authenticate and deliver the
Notes has been duly authorized by the Seller and, when the
Notes have been duly executed by the Owner Trustee and, when
authenticated and delivered by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement,
the Notes will be duly and validly issued and outstanding and
will be entitled to the benefits of the Indenture;
(iv) the direction by the Seller to the Owner Trustee to
authenticate and execute the Certificates has been duly
authorized by the Seller and, when the Certificates have been
duly executed, authenticated and delivered by the Owner
Trustee in accordance with the terms of the Trust Agreement
and the Certificates have been delivered to and paid for by
the Seller pursuant to the Sale and Servicing Agreement and
the Trust Agreement, the Certificates will be duly and
validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
(v) the Note Indemnification Agreement and each Basic
Document to which MMCA is a party has been duly authorized,
executed and delivered by MMCA;
(vi) no consent, approval, authorization or order of, or
filing with any governmental agency or body or any court is
required for the execution, delivery and performance by the
Seller of this Agreement and the Basic Documents to which it
is a party, for the execution, delivery and performance by
MMCA of the Note Indemnification Agreement and the Basic
Documents to which it is a party or for the consummation of
the transactions contemplated by this Agreement, the Basic
Documents or the Note Indemnification Agreement, except for
(i) the filing of Uniform Commercial Code financing
statements in Delaware with respect to the transfer of the
Receivables to the Seller pursuant to the Purchase Agreement
(the "Seller Financing Statements") and the transfer of the
Trust Property to the Trust pursuant to the Sale and
Servicing Agreement (the "Trust Financing Statements") 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 (the "Indenture Financing
Statements"), which financing statements will be filed in the
appropriate offices within ten days of the Closing Date; (ii)
such as have been obtained and made under the Act; and (iii)
such as may be required under state securities laws;
(vii) the execution, delivery and performance of this
Agreement and the Basic Documents by the Seller, the
execution, delivery and performance of the Note
Indemnification Agreement and the Basic Documents by MMCA and
the consummation of any other of the transactions
contemplated herein, in the Note Indemnification Agreement or
the Basic Documents will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or
assets of MMCA or the Seller pursuant to the terms of the
Certificate of Incorporation or the By-Laws of MMCA or the
documents of organization of the Seller, or any statute,
rule, regulation or order of any governmental agency or body,
or any court having jurisdiction over MMCA or the Seller or
their respective properties, or any agreement or instrument
known to such counsel after due investigation to which MMCA
or the Seller is a party or by which MMCA or the Seller or
any of their respective properties is bound;
(viii) such counsel has no reason to believe that any
part of the Registration Statement or any amendment thereto,
as of its effective date, 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 the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the
Registration Statement and the Prospectus of statutes, legal
and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in
the Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statement or the
Prospectus;
(ix) there are no actions, proceedings or investigations
pending to which the Seller or MMCA is a party or, to the
best knowledge of such counsel, after due inquiry, threatened
before any court, administrative agency or other tribunal
having jurisdiction over MMCA or the Seller, (i) that are
required to be disclosed in the Registration Statement, (ii)
asserting the invalidity of this Agreement, the Note
Indemnification Agreement, any Basic Document, the Notes or
the Certificates, (iii) seeking to prevent the issuance of
the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement or the Basic
Documents, (iv) which might materially and adversely affect
the performance by the Seller or MMCA of its obligations
under, or the validity or enforceability of, this Agreement,
the Note Indemnification Agreement, any Basic Document, the
Notes or the Certificates or (v) seeking adversely to affect
the federal income tax attributes of the Notes as described
in the Prospectus under the heading "FEDERAL INCOME TAX
CONSEQUENCES";
(x) the statements in the Registration Statement under
the heading "SOME IMPORTANT LEGAL ASPECTS OF THE
RECEIVABLES", to the extent they constitute statements of
matters of law or legal conclusions with respect thereto, are
correct in all material respects;
(xi) each of MMCA and the Seller has obtained all
necessary licenses and approvals in each jurisdiction in
which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by MMCA,
the Seller, the Trust, the Owner Trustee or the Indenture
Trustee;
(xii) this Agreement and each Basic Document to which
the Seller is a party has been duly authorized, executed and
delivered by the Seller;
(xiii) such counsel is familiar with MMCA's standard
operating procedures relating to MMCA's acquisition of a
perfected first priority security interest in the vehicles
financed by MMCA pursuant to retail installment sale
contracts in the ordinary course of MMCA's business; assuming
that MMCA's standard procedures are followed with respect to
the perfection of security interests in the Financed Vehicles
(and such counsel has no reason to believe that MMCA has not
or will not continue to follow its standard procedures in
connection with the perfection of security interests in the
Financed Vehicles), MMCA has acquired or will acquire a
perfected first priority security interest in the Financed
Vehicles; and
(xiv) immediately prior to the sale of the Receivables
by MMCA to the Seller pursuant to the Purchase Agreement and
the First Tier Assignment, MMCA was the sole owner of all
right, title and interest in, to and under the Receivables
and the other property to be transferred by it to the Seller;
immediately prior to the sale of the Receivables by the
Seller to the Trust pursuant to the Sale and Servicing
Agreement, the Seller was the sole owner of all right, title
and interest in, to and under the Receivables and the other
property to be sold by it to the Trust.
(e) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Seller and MMCA, dated the Closing Date, and satisfactory in form
and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) the provisions of the Sale and Servicing Agreement
are effective to create, in favor of the Owner Trustee, a
valid security interest (as such term is defined in Section
1-201 of the New York UCC) in the Seller's rights in the
Receivables and proceeds thereof, which security interest, if
characterized as a transfer for security, will secure payment
of the Notes;
(ii) the provisions of the Sale and Servicing Agreement
are sufficient to constitute authorization by the Seller of
the filing of the Trust Financing Statement for purposes of
Section 9-509 of the Delaware UCC;
(iii) the Trust Financing Statement includes all of the
types of information required by Sections 9-502(a) and 9-516
of the Delaware UCC in order for the Trust Financing
Statement to be in appropriate form for filing in the
relevant filing office under the Delaware UCC;
(iv) under the Delaware UCC, upon the later of the
attachment of the security interest and the filing of the
Trust Financing Statement in the relevant filing office under
the Delaware UCC, the security interest in favor of the Owner
Trust will be perfected in the Seller's rights in the
Receivables and proceeds thereof;
(v) 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;
(vi) the provisions of the Indenture are sufficient to
constitute authorization by the Trust of the filing of the
Indenture Financing Statement for purposes of Section 9-509
of the Delaware UCC;
(vii) the Indenture Financing Statement includes all of
the types of information required by Sections 9-502(a) and
9-516 of the Delaware UCC in order for the Indenture
Financing Statement to be in appropriate form for filing in
the relevant filing office under the Delaware UCC;
(viii) under the Delaware UCC, upon the later of the
attachment of the security interest and the filing of the
Indenture Financing Statement in the relevant filing office
under the Delaware UCC, the Security Interest in favor of the
Indenture Trustee for the benefit of the holders of the Notes
will be perfected in the Trust's rights in the Receivables
and proceeds thereof;
(ix) based on reviews of the organizational documents of
the Seller and the Trust, both the Seller and the Trust are
"registered organizations" under the Delaware UCC;
(x) assuming that each of the direction by the Seller to
the Owner Trustee to execute the Notes and the direction by
the Seller to the Indenture Trustee to authenticate and
deliver the Notes has been duly authorized by the Seller,
when the Notes have been duly executed by the Owner Trustee
and authenticated and delivered by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement,
the Notes will be duly and validly issued and outstanding and
will be entitled to the benefits of the Indenture;
(xi) assuming that the direction by the Seller to the
Owner Trustee to execute, authenticate and deliver the
Certificates has been duly authorized by the Seller, when the
Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the terms
of the Trust Agreement and the Certificates have been
delivered to and paid for by the Seller pursuant to the Sale
and Servicing Agreement and the Trust Agreement, the
Certificates will be duly and validly issued and outstanding
and will be entitled to the benefits of the Trust Agreement;
(xii) the statements in the Prospectus under the heading
"SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute matters of law or legal conclusions,
are correct in all material respects;
(xiii) the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act");
(xiv) the Indenture has been duly qualified under the
Trust Indenture Act;
(xv) no authorization, approval or consent of any court
or governmental agency or authority is necessary under the
Federal law of the United States or the laws of the State of
New York in connection with the execution, delivery and
performance by the Seller of this Agreement and the Basic
Documents to which it is a party, the execution, delivery and
performance by MMCA of the Note Indemnification Agreement and
the Basic Documents to which it is a party or for the
consummation of the transactions contemplated by this
Agreement, the Note Indemnification Agreement or the Basic
Documents, except such as may be required under state
securities laws and such as have been obtained and made under
the Act;
(xvi) the Registration Statement was declared effective
under the Act as of the date specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the
Registration Statement and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
the Registration Statement and the Prospectus, and each
amendment or supplement thereof, as of their respective
effective or issue dates, complies as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any
part of the Registration Statement or any amendment thereto,
as of its effective date, 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;
(xvii) each of the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the
Administration Agreement, the Yield Supplement Agreement, the
Purchase Agreement, the Control Agreement and the First Tier
Assignment constitutes the legal, valid and binding agreement
of the Seller and MMCA, in each case as to those documents to
which it is a party, enforceable against the Seller and MMCA
in accordance with their terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless
of whether such enforceability is considered in a proceeding
in equity or at law) except, as applicable, that such counsel
need not express an opinion with respect to indemnification
or contribution provisions which may be deemed to be in
violation of the public policy underlying any law or
regulation;
(xviii) 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;
(xix) neither the Trust nor the Seller is and, after
giving effect to the issuance of the Notes and the
Certificates and the sale of the Notes and the application of
the proceeds thereof, as described in the Prospectus, neither
the Trust nor the Seller will be, an "investment company" as
defined in the Investment Company Act;
(xx) the Notes, the Certificates, the Purchase
Agreement, the Administration Agreement, the First Tier
Assignment, the Sale and Servicing Agreement, the Yield
Supplement Agreement, the Trust Agreement, this Agreement and
the Indenture each conform in all material respects with the
descriptions thereof contained in the Registration Statement
and the Prospectus; and
(xxi) the Trust Agreement is the legal, valid and
binding agreement of the Seller, enforceable against the
Seller in accordance with its terms under the law of the
State of Delaware.
(f) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that for federal income tax purposes (i) the Notes
will be characterized as indebtedness of the Trust, (ii) the Trust
will not be classified as an association (or publicly traded
partnership) taxable as a corporation, (iii) the Notes will be
characterized as indebtedness for Delaware state income tax
purposes, (iv) the Trust will not be subject to Delaware state
franchise or income tax as a separate entity and (v) the
statements set forth in the Prospectus under the headings "SUMMARY
OF TERMS--Tax Status", "FEDERAL INCOME TAX CONSEQUENCES" and
"STATE TAX CONSEQUENCES" to the extent such statements constitute
matters of law or legal conclusions with respect thereto, are
correct in all material respects.
(g) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that (i) for California state franchise and income
tax purposes (A) the Trust will not be taxable as a corporation
and (B) the Notes will be treated as indebtedness and (ii) the
statements set forth in the Prospectus under the headings "SUMMARY
OF TERMS--Tax Status" and "STATE TAX CONSEQUENCES", to the extent
such statements constitute matters of law or legal conclusions
with respect thereto, are correct in all material respects.
(h) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the
Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that (i) the statements set forth in the Prospectus
under the headings "SUMMARY OF TERMS--ERISA Considerations",
"SUMMARY OF TERMS--Eligibility of Notes for Purchase by Money
Market Funds", "TERMS OF THE NOTES--Terms of the Indenture" (last
sentence of the last paragraph under "Events of Default Under the
Indenture" and last sentence of the first paragraph under
"Remedies Following an Event of Default under the Indenture"
only), "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", and
"ERISA CONSIDERATIONS" to the extent such statements constitute
matters of law or legal conclusions with respect thereto, are
correct in all material respects.
(i) The Representative shall have received from Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, counsel for the Underwriters, an opinion, dated
the Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters
as the Representative may require, and the Seller shall have
furnished to such counsel such documents as it may request for the
purpose of enabling it to pass upon such matters.
(j) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the
President or any Vice President and a principal financial or
accounting officer, or equivalent officer or officers, of each of
the Seller and MMCA in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Seller in this Agreement and
of MMCA in the Note Indemnification Agreement are true and
correct, as applicable; the Seller or MMCA, as applicable, has
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date; the representations and warranties of the Seller or
MMCA, as applicable, in the Basic Documents are true and correct
as of the dates specified in such agreements; the Seller or MMCA,
as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date; no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent
to the date of the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective
material adverse change, in the condition (financial or
otherwise), business, properties or results of operations of the
Seller or MMCA or their respective businesses except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(k) The Representative shall have received an opinion of
Xxxxx, Xxxxxx & Xxxxxx XXX, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York;
(ii) the Indenture Trustee has the full corporate trust
power to accept the office of indenture trustee under the
Indenture and to enter into and perform its obligations under
the Indenture, the Sale and Servicing Agreement and the
Administration Agreement;
(iii) the execution and delivery of the Indenture and
the Administration Agreement and the acceptance of the Sale
and Servicing Agreement and the performance by the Indenture
Trustee of its obligations under the Indenture, the Sale and
Servicing Agreement and the Administration Agreement have
been duly authorized by all necessary corporate action of the
Indenture Trustee and each has been duly executed and
delivered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement and
the Administration Agreement constitute valid and binding
obligations of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with their terms under the
laws of the State of New York and the Federal law of the
United States;
(v) the execution and delivery by the Indenture Trustee
of the Indenture and the Administration Agreement and the
acceptance of the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any
registration or filing with, any New York or United States
federal governmental authority, other than the qualification
of the Indenture Trustee under the Trust Indenture Act;
(vi) each of the Notes has been duly authenticated and
delivered by the Indenture Trustee;
(vii) neither the consummation by the Indenture Trustee
of the transactions contemplated in the Sale and Servicing
Agreement, the Indenture or the Administration Agreement nor
the fulfillment of the terms thereof by the Indenture Trustee
will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter, By-laws or
other organizational documents of the Indenture Trustee or
the terms of any indenture or other agreement or instrument
known to such counsel and to which the Indenture Trustee or
any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be
applicable to the Indenture Trustee or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Indenture Trustee or any of its subsidiaries;
(viii) to such counsel's knowledge there is no action,
suit or proceeding pending or threatened against the
Indenture Trustee (as trustee under the Indenture or in its
individual capacity) before or by any governmental authority
that if adversely decided, would materially adversely affect
the ability of the Indenture Trustee to perform its
obligations under the Indenture, the Sale and Servicing
Agreement or the Administration Agreement; and
(ix) the execution, delivery and performance by the
Indenture Trustee of the Sale and Servicing Agreement, the
Indenture and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion
thereof, to any lien created by or arising with respect to
the Indenture Trustee that are unrelated to the transactions
contemplated in such agreements.
(l) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing
under the laws of the State of Delaware;
(ii) the Owner Trustee has full corporate trust power
and authority to enter into and perform its obligations under
the Trust Agreement and, on behalf of the Trust, under the
other Basic Documents to which it is a party and has duly
authorized, executed and delivered such Basic Documents and
such Basic Documents constitute the legal, valid and binding
agreement of the Owner Trustee, enforceable in accordance
with their terms, except that certain of such obligations may
be enforceable solely against the Trust Property (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee as trustee
and authenticating agent; each of the Notes has been duly
executed by the Owner Trustee, on behalf of the Trust;
(iv) the execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, of the other
Basic Documents to which it is a party and the performance by
the Owner Trustee of its obligations thereunder do not
conflict with, result in a breach or violation of or
constitute a default under the Articles of Association or
By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner
Trustee of the Trust Agreement and, on behalf of the Trust,
of the other Basic Documents to which it is a party do not
require any consent, approval or authorization of, or any
registration or filing with, any Delaware or United States
federal governmental authority having jurisdiction over the
trust power of the Owner Trustee, other than those consents,
approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of
State of the State of Delaware.
(m) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) the Trust has been duly formed and is validly
existing as a business trust under the Delaware Trust Act;
(ii) the Trust has the power and authority under the
Delaware Trust Act and the Trust Agreement, and the Trust
Agreement authorizes the Owner Trustee, to execute, deliver
and perform its obligations under the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the
Note Depository Agreement, the Notes and the Certificates;
(iii) to the extent that Article 9 of the UCC as in
effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflict of laws principles),
and assuming that the security interest created by the
Indenture in the Receivables has been duly created and has
attached, upon the filing of the Indenture Financing
Statement with the Secretary of State of the 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
underss.9-324 of the Delaware UCC and temporarily perfected
security interests in proceeds underss.9-315 of the Delaware
UCC;
(iv) no re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such
security interest except for the filing of continuation
statements at five year intervals;
(v) assuming that the Notes have been duly executed by
the Owner Trustee on behalf of the Trust, and assuming that
the Notes have been duly authenticated by the Indenture
Trustee, when the Notes have been delivered in accordance
with the Indenture, the Notes will be validly issued and
entitled to the benefits of the Indenture;
(vi) assuming that the Certificates have been duly
authorized, executed and authenticated by the Owner Trustee
on behalf of the Trust, when the Certificates have been
issued and delivered in accordance with the instructions of
the Seller, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement; and
(vii) under 12 Del. C. ss. 3805(b), no creditor of any
Certificateholder (including creditors of the Seller in its
capacity as Certificateholder) shall have any right to obtain
possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement.
(n) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Seller,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, (i) with
respect to the characterization of the transfer of the Receivables
by MMCA to the Seller and from the Seller to the Trust and (ii) to
the effect that should MMCA become the debtor in a case under the
Bankruptcy Code, and the Seller would not otherwise properly be a
debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising its judgment after full
consideration of all relevant factors, would not order, over the
objection of the Certificateholders or the Noteholders, the
substantive consolidation of the assets and liabilities of the
Seller with those of MMCA and such opinion shall be in
substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and
counsel for the Underwriters.
(o) The Representative shall have received evidence
satisfactory to it and counsel for the Underwriters that, within
ten days of the Closing Date, UCC-1 financing statements have been
filed in the office of the Secretary of State of the State of
Delaware reflecting (i) the transfer of the interest of MMCA in
the Receivables and the proceeds thereof to the Seller and the
transfer of the interest of the Seller in the Receivables and the
proceeds thereof to the Trust and (ii) the grant of the security
interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
(p) The Representative shall have received an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Trust, 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 or to the Yield
Supplement Account (such securities entitlements, the "Securities
Entitlements"), (ii) the provisions of the control agreement for
purposes of Article 8 of the New York UCC are effective to perfect
the security interest of the Indenture Trustee in the Securities
Entitlements and (iii) no security interest of any other creditor
of the Trust will be prior to the security interest of the
Indenture Trustee in such Securities Entitlements.
(q) The Class A-1 Notes shall have been rated "Prime-1",
"A-1+" and "F1+" by Xxxxx'x, Standard & Poor's and Fitch,
respectively. The Class A-2 Notes, Class A-3 Notes and Class A-4
Notes shall have been rated "Aaa", "AAA" and "AAA" by Xxxxx'x,
Standard & Poor's and Fitch, respectively, and the Class B Notes
shall have been rated at least "A2", "A" and "A" by Xxxxx'x,
Standard & Poor's and Fitch, respectively.
(r) 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 three days prior to the Closing Date for purposes of
this subsection.
(s) On the Closing Date, the Certificates shall have been
issued to the Seller.
(t) The Representative shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP and each other counsel for the
Seller, a letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such counsel
to any Rating Agency in connection with the rating of any Class of
Notes, as if each such opinion were addressed to the Underwriters.
The Seller will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests.
The Representative may in its sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Seller
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section (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 Section (a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes concerned, to the extent that
the untrue statement or omission or alleged untrue statement or omission
was eliminated or remedied in the Prospectus, which Prospectus was required
to be delivered by such Underwriter under the Act to such person and was
not so delivered if the Seller had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Seller against any losses, claims, damages or liabilities
to which the Seller may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Seller by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Seller in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the figures on the cover page concerning the terms of the
offering by the Underwriters, the concession and reallowance figures
appearing under the caption "Underwriting" and the information contained in
the fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by any indemnified party under this
Section of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section, notify the indemnifying
party of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve the
indemnifying party from any liability which it may have under Section 7(a)
or (b) except to the extent the indemnifying party has been materially
prejudiced by such failure; and provided further, however, that the failure
to notify any indemnifying party shall not relieve the indemnifying party
from any liability which it may have to any indemnified party otherwise
than under Section 7(a) or (b). In any such action, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party if indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(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 Section 7(a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Seller on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Seller on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Notes (before deducting expenses) received by the
Seller bear to the total underwriting discounts and commissions received by
the Underwriters in respect of the Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount under this
Agreement and under the Note Indemnification Agreement in excess of the
amount by which the underwriting discount or commission allocable to the
Notes underwritten by it and distributed 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 Section (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller,
to each officer of the Seller who has signed the Registration Statement and
to each person, if any, who controls the Seller within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing
Date and the aggregate principal amount of Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Notes that the Underwriters are
obligated to purchase on the Closing Date, the Representative may make
arrangements satisfactory to the Seller for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such
arrangements are made by the 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 the 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 the Closing Date and arrangements satisfactory to the Representative and
the Seller for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Seller
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or the Seller or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Notes
have been purchased hereunder the representations and warranties in Section
2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8, the Seller will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxx, or, if sent to the
Seller, 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: (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of
the counterparts hereof, whereupon it will become a binding agreement
between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Secretary & Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above
written:
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxx
------------------------------
Xxxx Xxx
Vice President
For itself and as Representative of
the other Underwriters named in
Schedule A hereto
SCHEDULE A
Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriters Notes Notes Notes Notes Notes
-------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc. $ 39,920,000 $110,400,000 $116,000,000 $157,760,000 $40,066,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 4,990,000 13,800,000 14,500,000 19,720,000 0
Xxxxxx Xxxxxxx & Co. Incorporated 4,990,000 13,800,000 14,500,000 19,720,000 0
Total $49,900,000 $138,000,000 $145,000,000 $197,200,000 $40,066,000
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