MMCA AUTO OWNER TRUST 2001-1
$_________ ____% CLASS A-1 ASSET BACKED NOTES
$_________ ____% CLASS A-2 ASSET BACKED NOTES
$_________ ____% CLASS A-3 ASSET BACKED NOTES
$_________ ____% CLASS A-4 ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
CLASS A UNDERWRITING AGREEMENT
___________, 2001
[______________________]
as Representative of the several Underwriters
[address]
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 2001-1 (the "Trust") to issue and sell to the several underwriters
named in Schedule A hereto (the "Underwriters"), acting severally and not
jointly, for [_______________] is acting as representative (the
"Representative"), $______________ aggregate principal amount of _____%
Class A-1 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 "Class A Notes").
Concurrently with the issuance and sale of the Class A Notes as
contemplated herein, the Trust will issue $______________ aggregate
principal amount of _____% Class B Asset Backed Notes (the "Class B Notes"
and, together with the Class A Notes, the "Notes"). The Class B Notes will
be sold pursuant to a Class B Underwriting Agreement, dated _________, 2001
(the "Class B Underwriting Agreement"), between the Seller and [__________]
(the "Class B Underwriter"). The Notes will be issued pursuant to the
Indenture, dated as of _________ 1, 2001 (the "Indenture"), between the
Trust and The Bank of Tokyo-Mitsubishi Trust Company, as trustee (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $______________ aggregate
principal amount of certificates (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 _________ 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.
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")
and (ii) with respect to (a) Actuarial Receivables, certain monies due
thereunder on or after the related Cutoff Date, and (b) Simple Interest
Receivables, certain monies due or received thereunder on or after the
related Cutoff Date. The Receivables will be sold to the Trust by the
Seller and will be serviced for the Trust by MMCA (in such capacity, the
"Servicer"). Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Sale and Servicing Agreement, dated as of
_________ 1, 2001 (the "Sale and Servicing Agreement"), among the Trust,
the Seller and the Servicer or, if not defined therein, in the Indenture,
the Trust Agreement or the Purchase Agreement, dated as of _________ 1,
2001 (the "Purchase Agreement"), between MMCA, as seller, and the Seller,
as purchaser, as the case may be. "Basic Documents" means (i) the
Indenture, (ii) the Trust Agreement, (iii) the First Tier Assignment, dated
as of _________ 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 _____________ (the "Certificate of Trust"),
with the Secretary of State of the State of Delaware, (vii) the
Administration Agreement, dated as of _________ 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 _________ 1, 2001 (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 _________ 1, 2001 (the "Yield Supplement Agreement"), between the Seller
and MMCA, (x) the Control Agreement, dated as of _________ 1, 2001 (the
"Control Agreement"), among the Seller, the Trust, the Servicer, the
Indenture Trustee and The Bank of Tokyo-Mitsubishi Trust Company, as
securities intermediary, and (xi) the Class B Underwriting Agreement. 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. 333-53136)
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,
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) 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 10
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 and the Class B Underwriting Agreement have
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 Class A Notes at a purchase price of, in the
case of the (i) Class A-1 Notes, _____________% of the principal amount
thereof; (ii) Class A-2 Notes, _____________% of the principal amount
thereof; (iii) Class A-3 Notes, _____________% of the principal amount
thereof; and (iv) Class A-4 Notes, _____________% of the principal amount
thereof, the respective principal amounts of each Class of Notes set forth
opposite the names of the Underwriters in Schedule A hereto.
The Seller will deliver against payment of the purchase price
therefor, the Class A 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 Class A 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square,
New York, New York 10036 at 10:00 a.m., New York time, on _____________,
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 all of the
Class A Notes. The Global Notes will be made available for checking at the
above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at least 24 hours
prior to the Closing Date.
The Seller will deliver the Class B Notes and the Certificates to
the above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 _____________, 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 its Effective Time
is subsequent to the execution and delivery of this Agreement) and
of any amendment or supplementation of the Registration Statement
or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Seller will promptly notify
the Representative of such event and will promptly prepare and
file with the Commission (subject to the Representative's prior
review 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 the Noteholders an earnings statement of
the Trust covering a period of at least 12 months beginning after
the Effective Date which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 90th day after the end of the
Trust's fourth fiscal quarter following the fiscal quarter that
includes such Effective Date.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will
include all exhibits), each related preliminary prospectus and, so
long as delivery of a prospectus relating to the Notes is required
under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such
quantities as the Representative requests. The Prospectus shall be
so furnished on or prior to 3:00 p.m., New York time, on the
business day following the later of the execution and delivery of
this Agreement or the Effective Time. All other such documents
shall be so furnished as soon as available. The Seller will pay
the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Seller will arrange for the qualification of the Notes
for offering and sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in
effect so long as required for the distribution of the Notes.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other
Underwriters, copies of each certificate and the annual statements
of compliance delivered to the Indenture Trustee pursuant to
Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the Sale
and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to the Indenture
Trustee pursuant to Section 3.11 of the Sale and Servicing
Agreement, by first-class mail as soon as practicable after such
statements and reports are furnished to the Indenture Trustee, and
(ii) such other forms of periodic certificates or reports as may
be delivered to the Indenture Trustee, the Owner Trustee or the
Noteholders under the Indenture, the Trust Agreement, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will furnish
to the Representative by first-class mail as soon as practicable,
(i) all documents distributed, or caused to be distributed, by the
Seller to the Noteholders, (ii) all documents filed, or caused to
be filed, by the Seller with the Commission pursuant to the
Exchange Act, any order of the Commission thereunder and (iii)
such other information in the possession of the Seller concerning
the Trust as the Representative from time to time may reasonably
request.
(i) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and the Class
B Underwriting 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 ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and Standard & Poor's, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("Standard & Poor's" and, together with Moody's,
the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Seller, the
Seller shall furnish such documents and take any such other
action.
(k) On or before the 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 Class A
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 (i) they have performed
certain specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Trust, MMCA and the Seller) set forth in the
Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Trust, MMCA
and the Seller, excluding any questions of legal interpretation,
and (ii) they have performed certain specified procedures with
respect to the Receivables.
(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
light-duty truck financing business of the Trust, the Seller,
Mitsubishi Motor Sales of America, Inc. ("MMSA"), Mitsubishi
Motors Corporation ("MMC") or MMCA which, in the judgment of a
majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of each
Class of 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; (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 judgment 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 Notes.
(d) The Representative shall have received an opinion of (A) ▇.
▇▇▇▇ ▇▇▇▇▇▇, Esq., Director of Legal Affairs of the Seller, (B)
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel
to the Seller, and (C) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special
Delaware counsel to the Seller, in each case dated the Closing
Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters and, in the aggregate, to the
effect that:
(i) the Seller has been duly formed and is validly
existing as a business trust under the Delaware Trust Act,
with full power and authority to own its properties and
conduct its business as described in the Prospectus; the
Seller is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such
qualification; and the Seller has full power and authority
under the Delaware Trust Act and under the 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, 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
Class A Note Indemnification Agreement, dated _____________,
2001 (the "Class A Note Indemnification Agreement"), between
MMCA and the Representative, acting on behalf of itself and as
Representative of the several Underwriters, the Class B Note
Indemnification Agreement, dated _____________, 2001 (the
"Class B Note Indemnification Agreement" and, together with
the Class A Note Indemnification Agreement, the "Note
Indemnification Agreements"), between MMCA and [___________]
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
and the Class B Underwriter pursuant to the Class B
Underwriting 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 Agreements 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 Agreements 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 Agreements, except for
(i) the filing of Uniform Commercial Code financing statements
in California with respect to the transfer of the Receivables
to the Seller pursuant to the Purchase Agreement (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 Agreements and the Basic Documents by MMCA and
the consummation of any other of the transactions contemplated
herein, in either 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, either 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,
either Note Indemnification Agreement, any Basic Document, the
Notes or the Certificates or (v) seeking adversely to affect
the federal income tax attributes of the Notes as described in
the Prospectus under the heading "FEDERAL INCOME TAX
CONSEQUENCES";
(x) the statements in the Registration Statement under
the heading "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES",
to the extent they constitute statements of matters of law or
legal conclusions with respect thereto, are correct in all
material respects;
(xi) each of MMCA and the Seller has obtained all
necessary licenses and approvals in each jurisdiction in which
failure to qualify or to obtain such license or approval would
render any Receivable unenforceable by MMCA, the Seller, the
Trust, the Owner Trustee or the Indenture Trustee;
(xii) this Agreement and each Basic Document to which the
Seller is a party has been duly authorized, executed and
delivered by the Seller;
(xiii) such counsel is familiar with MMCA's standard
operating procedures relating to MMCA's acquisition of a
perfected first priority security interest in the vehicles
financed by MMCA pursuant to retail installment sale contracts
in the ordinary course of MMCA's business; assuming that
MMCA's standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles (and
such counsel has no reason to believe that MMCA has not or
will not continue to follow its standard procedures in
connection with the perfection of security interests in the
Financed Vehicles), MMCA has acquired or will acquire a
perfected first priority security interest in the Financed
Vehicles;
(xiv) the Receivables are chattel paper as defined in the
UCC; and
(xv) immediately prior to the sale of 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
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Seller, dated the Closing Date, and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) each Receivable is a motor vehicle retail installment
sales contract that constitutes "chattel paper" as defined in
Section 9-105 of the UCC in effect in the States of New York,
Delaware and California;
(ii) the provisions of the Sale and Servicing Agreement
are effective to create, in favor of the Owner Trustee, a
valid security interest (as such term is defined in Section
1-201 of the New York UCC) in the Seller's rights in the
Receivables and proceeds thereof, which security interest, if
characterized as a transfer for security, will secure payment
of the Notes;
(iii) the Trust Financing Statement is in appropriate
form for filing in the relevant filing office under the
California UCC, upon the filing of the Trust 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 Seller 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) 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
and the Class B Underwriter pursuant to the Class B
Underwriting Agreement, the Notes will be duly and validly
issued and outstanding and will be entitled to the benefits of
the Indenture;
(vi) assuming that the direction by the Seller to the
Owner Trustee to execute, authenticate and deliver the
Certificates has been duly authorized by the Seller, when the
Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the terms of
the Trust Agreement and the Certificates have been delivered
to and paid for by the Seller pursuant to the Sale and
Servicing Agreement and the Trust Agreement, the Certificates
will be duly and validly issued and outstanding and will be
entitled to the benefits of the Trust Agreement;
(vii) the statements in the Prospectus under the caption
"SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", to the
extent they constitute matters of law or legal conclusions,
are correct in all material respects;
(viii) the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act");
(ix) the Indenture has been duly qualified under the
Trust Indenture Act;
(x) no authorization, approval or consent of any court or
governmental agency or authority is necessary under the
Federal law of the United States or the laws of the State of
New York in connection with the execution, delivery and
performance by the Seller of this Agreement and the Basic
Documents to which it is a party, the execution, delivery and
performance by MMCA of the Note Indemnification Agreements and
the Basic Documents to which it is a party or for the
consummation of the transactions contemplated by this
Agreement, the Note Indemnification Agreements or the Basic
Documents, except such as may be required under state
securities laws and such as have been obtained and made under
the Act;
(xi) the Registration Statement was declared effective
under the Act as of the date specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Registration
Statement and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration
Statement and the Prospectus, and each amendment or supplement
thereof, as of their respective effective or issue dates,
complies as to form in all material respects with the
requirements of the Act and the Rules and Regulations; such
counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; and to the best
knowledge of such counsel, such counsel does not know of any
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements
or other financial data contained in the Registration
Statement or the Prospectus;
(xii) each of the 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;
(xiii) assuming due authorization, execution and delivery
by the Indenture Trustee and the Owner Trustee, the Indenture
constitutes the legal, valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its
terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law) except, as applicable, that such counsel need not express
an opinion with respect to indemnification or contribution
provisions which may be deemed to be in violation of the
public policy underlying any law or regulation;
(xiv) neither the Trust nor the Seller is and, after
giving effect to the issuance of the Notes and the
Certificates and the sale of the Notes and the application of
the proceeds thereof, as described in the Prospectus, neither
the Trust nor the Seller will be, an "investment company" as
defined in the Investment Company Act;
(xv) 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, the Class B Underwriting
Agreement and the Indenture each conform in all material
respects with the descriptions thereof contained in the
Registration Statement and the Prospectus; and
(xvi) the Trust Agreement is the legal, valid and binding
agreement of the Seller, enforceable against the Seller in
accordance with its terms under the law of the State of
Delaware.
(f) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that for federal income tax purposes (i) the Notes
will be characterized as indebtedness of the Trust, (ii) the
Trust will not be classified as an association (or publicly
traded partnership) taxable as a corporation and (iii) the
statements set forth in the Prospectus under the headings
"SUMMARY OF TERMS--ERISA Considerations", "SUMMARY OF
TERMS-Eligibility of Notes for Purchase by Money Market Funds",
"SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES", "ERISA
CONSIDERATIONS", "SUMMARY OF TERMS--Tax Status", "FEDERAL INCOME
TAX CONSEQUENCES" and "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) 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
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that (i) for California state franchise and income
tax purposes (A) the Trust will not be taxable as a corporation
and (B) the Notes will be treated as indebtedness, (ii) the Notes
will be characterized as indebtedness for Delaware state income
tax purposes, (iii) the Trust will not be subject to Delaware
state franchise or income tax as a separate entity and (iv) the
statements set forth in the Prospectus under the headings
"SUMMARY OF TERMS-Tax Status" and "STATE TAX CONSEQUENCES", to
the extent such statements constitute matters of law or legal
conclusions with respect thereto, are correct in all material
respects.
(h) The Representative shall have received from Brown & Wood
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.
(i) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the
President or any Vice President and a principal financial or
accounting officer, or equivalent officer or officers, of each of
the Seller and MMCA in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Seller in this Agreement
are true and correct; the representations of MMCA in the Note
Indemnification Agreements are true and correct; the Seller or
MMCA, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; the representations
and warranties of the Seller or MMCA, as applicable, in the Basic
Documents are true and correct as of the dates specified in such
agreements; the Seller or MMCA, as applicable, has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the
Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are contemplated by the
Commission; and, subsequent to the date of the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of
operations of the Seller or MMCA or their respective businesses
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(j) The Representative shall have received an opinion of
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Indenture
Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) the Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York;
(ii) the Indenture Trustee has the full corporate trust
power to accept the office of indenture trustee under the
Indenture and to enter into and perform its obligations under
the Indenture, the Sale and Servicing Agreement and the
Administration Agreement;
(iii) the execution and delivery of the Indenture and the
Administration Agreement and the acceptance of the Sale and
Servicing Agreement and the performance by the Indenture
Trustee of its obligations under the Indenture, the Sale and
Servicing Agreement and the Administration Agreement have been
duly authorized by all necessary corporate action of the
Indenture Trustee and each has been duly executed and
delivered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement and
the Administration Agreement constitute valid and binding
obligations of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with their terms under the
laws of the State of New York and the Federal law of the
United States;
(v) the execution and delivery by the Indenture Trustee
of the Indenture and the Administration Agreement and the
acceptance of the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any registration
or filing with, any New York or United States federal
governmental authority, other than the qualification of the
Indenture Trustee under the Trust Indenture Act;
(vi) each of the Notes has been duly authenticated and
delivered by the Indenture Trustee;
(vii) neither the consummation by the Indenture Trustee
of the transactions contemplated in the Sale and Servicing
Agreement, the Indenture or the Administration Agreement nor
the fulfillment of the terms thereof by the Indenture Trustee
will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter, By-laws or
other organizational documents of the Indenture Trustee or the
terms of any indenture or other agreement or instrument known
to such counsel and to which the Indenture Trustee or any of
its subsidiaries is a party or is bound or any judgment, order
or decree known to such counsel to be applicable to the
Indenture Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or
any of its subsidiaries;
(viii) to such counsel's knowledge there is no action,
suit or proceeding pending or threatened against the Indenture
Trustee (as trustee under the Indenture or in its individual
capacity) before or by any governmental authority that if
adversely decided, would materially adversely affect the
ability of the Indenture Trustee to perform its obligations
under the Indenture, the Sale and Servicing Agreement or the
Administration Agreement; and
(ix) the execution, delivery and performance by the
Indenture Trustee of the Sale and Servicing Agreement, the
Indenture and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion
thereof, to any lien created by or arising with respect to the
Indenture Trustee that are unrelated to the transactions
contemplated in such agreements.
(k) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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.
(l) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) the Trust has been duly formed and is validly
existing as a business trust under the Delaware 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.9-312(4) of the Delaware UCC and temporarily perfected
security interests in proceeds underss. 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 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.
(m) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the MART 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 MART 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 MART Trustee has full corporate trust power and
authority to enter into and perform its obligations under the
MART Trust Agreement and has duly authorized, executed and
delivered the MART Trust Agreement and the MART Trust
Agreement constitutes the legal, valid and binding agreement
of the MART Trustee, enforceable in accordance with its terms;
(iii) the execution and delivery by the MART Trustee of
the MART Trust Agreement and the performance by the MART
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 MART
Trustee; and
(iv) the execution, delivery and performance by the MART
Trustee of the MART Trust Agreement do not require any
consent, approval or authorization of, or any registration or
filing with, any Delaware or United States federal
governmental authority having jurisdiction over the trust
power of the MART Trustee, other than those consents,
approvals or authorizations as have been obtained.
(n) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Seller,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, (i) with
respect to the characterization of the transfer of the
Receivables by MMCA to the Seller and from the Seller to the
Trust and (ii) to the effect that should MMCA become the debtor
in a case under the Bankruptcy Code, and the Seller would not
otherwise properly be a debtor in a case under the Bankruptcy
Code, and if the matter were properly briefed and presented to a
court exercising bankruptcy jurisdiction, the court, exercising
reasonable judgment after full consideration of all relevant
factors, should not order, over the objection of the
Certificateholders or the Noteholders, the substantive
consolidation of the assets and liabilities of the Seller with
those of MMCA and such opinion shall be in substantially the form
previously discussed with the Representative and counsel for the
Underwriters and in any event satisfactory in form and in
substance to the Representative and counsel for the Underwriters.
(o) The Representative shall have received evidence
satisfactory to it and counsel for the Underwriters that, within
ten days of the Closing Date, UCC-1 financing statements have
been or are being filed in the offices of the Secretary of State
of the States of (i) California reflecting the transfer of the
interest of MMCA in the Receivables and the proceeds thereof to
the Seller and the transfer of the interest of the Seller in the
Receivables and the proceeds thereof to the Trust and (ii)
Delaware reflecting the grant of the security interest by the
Trust in the Receivables and the proceeds thereof to the
Indenture Trustee.
(p) The Representative shall have received an opinion of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and the counsel for the
Underwriters to the effect that (i) the provisions of the
Indenture are effective to create a valid security interest in
favor of the Indenture Trustee, to secure payment of the Notes,
in all "securities entitlements" (as defined in Section
8-102(a)(17) of the New York UCC) with respect to "financial
assets" (as defined in Section 8-102(a)(9) of the New York UCC)
now or hereafter credited to the Reserve Account (such securities
entitlements, the "Securities Entitlements"), (ii) the provisions
of the control agreement for purposes of Article 8 of the New
York UCC are effective to perfect the security interest of the
Indenture Trustee in the Securities Entitlements and (iii) no
security interest of any other creditor of the Trust will be
prior to the security interest of the Indenture Trustee in such
Securities Entitlements.
(q) The Class A-1 Notes shall have been rated at least "P-1"
and "A-1+" by ▇▇▇▇▇'▇ and Standard & Poor's, respectively. The
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have
been rated "Aaa" and "AAA" by ▇▇▇▇▇'▇ and Standard & Poor's,
respectively, and the Class B Notes shall have been rated at
least "A2" and "A" by ▇▇▇▇▇'▇ and Standard & Poor's,
respectively.
(r) The Representative shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇ & Young LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than 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 and the Class B Notes shall have been
issued, authenticated and delivered to the Class B Underwriter
pursuant to the Class B Underwriting Agreement.
(t) The Representative shall have received from ▇▇▇▇▇▇▇, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and each other counsel for the Seller,
a letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such counsel
to either Standard & Poor's or ▇▇▇▇▇'▇ 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 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 Class A Notes concerned, to
the extent that the untrue statement or omission or alleged untrue
statement or omission was eliminated or remedied in the Prospectus, which
Prospectus was required to be delivered by such Underwriter under the Act
to such person and was not so delivered if the Seller had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Seller against any losses, claims, damages or liabilities
to which the Seller may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Seller by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Seller in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the figures on the cover page concerning the terms of the
offering by the Underwriters, the concession and reallowance figures
appearing under the caption "Underwriting" and the information contained in
the fifth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party if indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller on the one hand and the Underwriters on the
other from the offering of the Class A 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 Class A Notes (before
deducting expenses) received by the Seller bear to the total underwriting
discounts and commissions received by the Underwriters in respect of the
Class A 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
Class A Note Indemnification Agreement in excess of the amount by which the
underwriting discount or commission allocable to the Class A 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 subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller,
to each officer of the Seller who has signed the Registration Statement and
to each person, if any, who controls the Seller within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Class A Notes hereunder on the
Closing Date and the aggregate principal amount of Class A Notes that such
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of Class A 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 Class A 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 Class A 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 Class A Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Class A 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 Class A 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 Class A Notes. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Class A 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 Class A 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 Class A Notes by the Underwriters
is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 6(c), the
Seller will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them
in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at [________________], 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: (▇▇▇) ▇▇▇-▇▇▇▇; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities
issued by the Seller or by a trust for which the Seller was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings
under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of
the counterparts hereof, whereupon it will become a binding agreement
between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By:
------------------------------
Name:
Title:
The foregoing Class A Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
[______________________]
By:
----------------------------------
Name:
Title:
Acting on behalf of itself and as the Representative of the several
Underwriters.
2
SCHEDULE A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
[_______________] $ $ $ $
Total $ $ $ $
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