Exhibit 1.1
EXECUTION COPY
$357,522,000
MMCA AUTO OWNER TRUST 2002-5
$36,300,000 1.4100% CLASS A-1 ASSET BACKED NOTES
$110,000,000 FLOATING RATE CLASS A-2 ASSET BACKED NOTES
$89,000,000 FLOATING RATE CLASS A-3 ASSET BACKED NOTES
$80,575,000 FLOATING RATE CLASS A-4 ASSET BACKED NOTES
$17,271,000 FLOATING RATE CLASS B ASSET BACKED NOTES
$24,376,000 FLOATING RATE CLASS C ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST II
UNDERWRITING AGREEMENT
December 10, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
as Representative of the several Underwriters
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust II (the "Seller"), a
Delaware statutory trust established pursuant to an amended and restated trust
agreement, dated as of July 29, 2002 (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 2002-5 (the "Trust")
to issue and sell to the several underwriters named in Schedule A hereto (the
"Underwriters"), acting severally and not jointly, for whom ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated is acting as representative (the "Representative"),
$36,300,000 aggregate principal amount of 1.4100% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), $110,000,000 aggregate principal amount of Floating
Rate Class A-2 Asset Backed Notes (the "Class A-2 Notes"), $89,000,000
aggregate principal amount of Floating Rate Class A-3 Asset Backed Notes (the
"Class A-3 Notes"), $80,575,000 aggregate principal amount of Floating Rate
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"), $17,271,000 aggregate principal amount of Floating Rate Class B Asset
Backed Notes (the "Class B Notes") and $24,376,000 aggregate principal amount
of Floating Rate Class C Asset Backed Notes (the "Class C Notes" and, together
with the Class A Notes and the Class B Notes, the "Notes"). The Notes will be
issued pursuant to the indenture, dated as of December 1, 2002 (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 $48,753,752.33 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 December 1, 2002 (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 purchase agreement, dated as of December 1, 2002
(the "Purchase Agreement"), between MMCA and the Seller, or the sale and
servicing agreement, dated as of December 1, 2002 (the "Sale and Servicing
Agreement"), among the Trust, the Seller and the Servicer (as defined below),
as the case may be.
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 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, 2002 (the "First Tier Assignment"), as executed by
MMCA; (iv) the Purchase Agreement; (v) the Sale and Servicing Agreement; (vi)
the certificate of trust, filed September 10, 2002 (the "Certificate of
Trust"), with the Secretary of State of the State of Delaware; (vii) the
administration agreement, dated as of December 1, 2002 (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 ("DTC"); (ix) the
yield supplement agreement, dated as of December 16, 2002 (the "Yield
Supplement Agreement"), between the Seller and MMCA; (x) the control
agreement, dated as of December 1, 2002 (the "Control Agreement"), among the
Seller, the Trust, the Servicer, the Indenture Trustee and Bank of
Tokyo-Mitsubishi Trust Company, as securities intermediary; and (xi) the ISDA
Master Agreement, including the schedule and confirmation relating to each of
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B
Notes and the Class C Notes, each dated December 18, 2002 (collectively, the
"Interest Rate Swap Agreement"), between the Trust and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
Services Inc., as swap counterparty (the "Swap Counterparty"). 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. 333-99539) 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 material
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
statutory trust under the Delaware Statutory 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 to which
it is a party 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 such term is
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, 99.900000% of the
principal amount thereof; (ii) Class A-2 Notes, 99.870000% of the principal
amount thereof; (iii) Class A-3 Notes, 99.840000% of the principal amount
thereof; (iv) Class A-4 Notes, 99.770000% of the principal amount thereof; (v)
Class B Notes, 99.670000% of the principal amount thereof; and (vi) Class C
Notes, 99.550000% 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 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, New York, New
York 10036 at 10:00 a.m., New York time, on December 18, 2002, 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, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
The Seller will deliver 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 December 18, 2002, 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.
Each Underwriter severally agrees that (i) it has not offered or
sold, and prior to the date that is six months after the date of issue of the
notes will not offer or sell, any notes to persons in the United Kingdom,
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances that have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 (as
amended); (ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of any notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Trust; and (iii) it has
complied, and will comply with, all applicable provisions of the FSMA with
respect to anything done by it in relation to the notes in, from or otherwise
involving the United Kingdom.
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 or 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 ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇"), Standard & Poor's, a
Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") and Fitch
Ratings ("Fitch" and, together with ▇▇▇▇▇'▇ 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
conveyed to the Trust 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; (iv) a material disruption in securities settlement, payment or
clearance services in the United States; or (v) 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) 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) ▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq., Director of Legal Affairs of the Seller and MMCA, (B) Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Seller and
MMCA, and (C) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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
statutory 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 10, 2002 (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, will be entitled to the benefits of the Indenture and will
constitute valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms;
(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 UCC financing statements in Delaware with respect to the
transfer of the Receivables to the Seller pursuant to the Purchase Agreement
(the "Seller Financing Statement") and the transfer of the Trust Property to
the Trust pursuant to the Sale and Servicing Agreement (the "Trust Financing
Statement") and the filing of a UCC 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
Statement"), 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 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 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 ▇▇▇▇▇▇▇,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 UCC as in effect in the State of New
York (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 UCC as in
effect in the State of Delaware (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 Trustee in the Receivables and proceeds thereof 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 Basic Document to which the Seller, MMCA or the Trust is
a party constitutes the legal, valid and binding agreement of the Seller, MMCA
or the Trust, as the case may be (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) assuming due authorization, execution and delivery by the Swap
Counterparty, the Interest Rate Swap Agreement 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;
(xx) 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 such
term is defined in the Investment Company Act; and
(xxi) the Notes, the Certificates and each Basic Document conform in
all material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus.
(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--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 ▇▇▇▇▇▇▇,
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 and
Delaware state franchise and income tax purposes (A) the Notes will be treated
as indebtedness, (B) the Trust will not be subject to franchise or income
taxes at the entity level and (C) Noteholders not otherwise subject to
taxation in California or Delaware, respectively, would not become subject to
taxation in California or Delaware, respectively, solely because of a
Noteholder's ownership of a Note 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 ▇▇▇▇▇▇▇,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 first sentence of
the second 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 an opinion from each of
(i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special California, (ii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
L.L.P., special Texas and (iii) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
P.A., special Florida counsel, respectively, 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 upon consummation of the
transactions contemplated by the Basic Documents, the Trust had a perfected
security interest in the Financial Vehicles financed under Receivables
originated in the relevant jurisdiction.
(j) The Representative shall have received an opinion from counsel to
the Swap Counterparty, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the
effect that the Interest Rate Swap Agreement has been duly authorized,
executed and delivered by the Swap Counterparty and (assuming the due
authorization, execution and delivery by the Trust) constitutes a valid and
binding agreement of the Swap Counterparty, enforceable against the Swap
Counterparty in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(k) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ 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.
(l) 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.
(m) The Representative shall have received an opinion of ▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇, counsel to the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation duly incorporated
and validly existing under the laws of the State of New York;
(ii) the Indenture Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to enter into
and perform its obligations under the Indenture, the Sale and Servicing
Agreement, the Control Agreement and the Administration Agreement;
(iii) the execution and delivery of the Indenture, the Control
Agreement 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, the Control
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, the Control
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, the Control Agreement 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,
the Control Agreement 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, the Control Agreement or the
Administration Agreement; and
(ix) the execution, delivery and performance by the Indenture Trustee
of the Sale and Servicing Agreement, the Indenture, the Control Agreement 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.
(n) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & 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.
(o) 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
statutory 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 Control Agreement, the Interest Rate Swap Agreement,
the Notes and the Certificates;
(iii) to the extent that Article 9 of 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.
(p) 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
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.
(q) 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.
(r) The Representative shall have received an opinion of ▇▇▇▇▇▇▇,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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.
(s) The Class A-1 Notes shall have been rated "Prime-1", "A-1+" and
"F1+" by ▇▇▇▇▇'▇, 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 ▇▇▇▇▇'▇, Standard & Poor's and Fitch, respectively, the Class B
Notes shall have been rated at least "Aa2", "AA" and "AA" by ▇▇▇▇▇'▇, Standard
& Poor's and Fitch, respectively, and the Class C Notes shall have been rated
at least "A2", "A" and "A" by ▇▇▇▇▇'▇, Standard & Poor's and Fitch,
respectively.
(t) 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.
(u) On the Closing Date, the Certificates shall have been issued to
the Seller.
(v) The Representative shall have received from Skadden, 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 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 7(b); and provided, further, that with respect to
any untrue statement or omission or alleged untrue statement or omission made
in any preliminary prospectus, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Notes concerned, to the extent that the untrue statement or omission or
alleged untrue statement or omission was eliminated or remedied in the
Prospectus, which Prospectus was required to be delivered by such Underwriter
under the Act to such person and was not so delivered if the Seller had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Seller against any losses, claims, damages or liabilities to
which the Seller may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Seller in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the figures on the cover page concerning the terms of the
offering by the Underwriters, the concession and reallowance figures appearing
under the heading "Underwriting" and the information contained in the fifth
paragraph under the heading "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 7(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, (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 or
(iii) the indemnifying party has failed to appoint counsel satisfactory to the
indemnified party. 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 7(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 7(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 subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Seller, to each officer
of the Seller who has signed the Registration Statement and to each person, if
any, who controls the Seller within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date
and the aggregate principal amount of Notes that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
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 sent by facsimile and
confirmed to the Representative at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, New
York 10020, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., or, if sent to the Seller, will
be mailed, delivered or sent by facsimile and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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 or the Note Indemnification 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 II
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary & Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ Friend
Title: Managing Director
For itself and as Representative of
the other Underwriters named in
Schedule A hereto
SCHEDULE A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriters Notes Notes Notes Notes
---------------------------------------- ---------- ----------- ----------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .... $25,410,000 $77,000,000 $62,300,000 $56,402,500
Deutsche Bank Securities Inc.......... 2,178,000 6,600,000 5,340,000 4,834,500
▇.▇. ▇▇▇▇▇▇ Securities Inc............ 2,178,000 6,600,000 5,340,000 4,834,500
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............... 2,178,000 6,600,000 5,340,000 4,834,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.............. 2,178,000 6,600,000 5,340,000 4,834,500
▇▇ ▇▇▇▇▇ Securities Corporation....... 2,178,000 6,600,000 5,340,000 4,834,500
----------- ------------ ----------- -----------
Total $36,300,000 $110,000,000 $89,000,000 $80,575,000
=========== ============ =========== ===========
Amount of Amount of
Class B Class C
Underwriters Notes Notes
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .... $12,089,700 $17,063,200
Deutsche Bank Securities Inc.......... 1,036,260 1,462,560
▇.▇. ▇▇▇▇▇▇ Securities Inc............ 1,036,260 1,462,560
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............... 1,036,260 1,462,560
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.............. 1,036,260 1,462,560
▇▇ ▇▇▇▇▇ Securities Corporation....... 1,036,260 1,462,560
----------- ------------
Total $17,271,000 $24,376,000
=========== ===========