Exhibit 10.1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of this 1st day of October, 1997 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), by and between MITSUBISHI MOTORS CREDIT OF AMERICA, INC., a
Delaware corporation (the "Seller"), having its principal executive office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and MMCA AUTO RECEIVABLES,
INC., a Delaware corporation (the "Purchaser"), having its principal executive
office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, in the regular course of its business, the Seller purchases
certain motor vehicle retail installment sales contracts secured by new and used
automobiles and light- and medium-duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined) are to be sold by the
Seller to the Purchaser, which Receivables will be transferred by the Purchaser,
pursuant to the Sale and Servicing Agreement (as hereinafter defined) to the
MMCA Auto Owner Trust 1997-1 to be created pursuant to the Trust Agreement (as
hereinafter defined), which Trust will issue notes secured by a portion of such
Receivables and certain other property of the Trust, pursuant to the Indenture
(as hereinafter defined), and certificates representing interests in certain
property of the Trust, pursuant to the Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth
in, or incorporated by reference into, the Sale and Servicing Agreement or, if
not defined therein, in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined):
"Agreement" shall have the meaning specified in the recitals hereto.
"Assignment" shall mean the document of assignment attached to this
Agreement as Exhibit A.
"Closing" shall have the meaning specified in Section 2.2.
"Closing Date" shall mean _______, 1997.
"Cutoff Date" shall mean October 1, 1997.
"Indenture" shall mean the Indenture, dated as of October 1, 1997,
between the Trust and Bank of Tokyo -Mitsubishi Trust Company, a New York
banking corporation, as Indenture Trustee, as the same may from time to time be
amended, supplemented or otherwise modified and in effect.
"Payment Date" shall mean, for each Collection Period, the 15th day of
the following month or, if such fifteenth day is not a Business Day, the next
succeeding Business Day.
"Prospectus" shall have the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" shall mean MMCA Auto Receivables, Inc., a Delaware
corporation, and its successors and assigns.
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"Rating Agency" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or Standard
& Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇, or any successors thereto.
"Receivable" shall mean, for the purposes of this Agreement, each
retail installment sales contract for a Financed Vehicle described in the
Schedule of Receivables and all rights and obligations thereunder which appears
on Exhibit B hereto and any amendments, modifications or supplements to such
retail installment sales contract.
"Receivables Purchase Price" shall mean $_______.
"Relevant UCC" shall mean the Uniform Commercial Code, as in effect
from time to time in the relevant jurisdictions.
"Repurchase Event" shall have the meaning specified in Section 6.2
hereof.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of October 1, 1997, among Mitsubishi Motors Credit of
America, Inc., as servicer, the Purchaser, as seller, and the Trust, as
purchaser, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Exhibit B.
"Seller" shall mean Mitsubishi Motors Credit of America, Inc., a
Delaware corporation, and its successors and assigns.
"Trust" shall mean the MMCA Auto Owner Trust 1997-1 created by the
Trust Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of October 1, 1997, between the Purchaser, as depositor, and Wilmington
Trust Company, as Owner Trustee, as the same may be from time to time amended,
supplemented or otherwise modified and in effect.
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"Underwriting Agreement" shall mean the Underwriting Agreement by and
between Credit Suisse First Boston Corporation, as representative of the several
underwriters, and the Purchaser, as seller, dated _______, 1997.
"Yield Supplement Agreement" shall mean the Yield Supplement Agreement
to be entered into by the Seller and the Purchaser on the Closing Date, as the
same may from time to time be amended, supplemented or otherwise modified and in
effect.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Seller, the Receivables and the other property relating
thereto (as described below).
(a) Sale of Receivables. On the Closing Date, and
simultaneously with the transactions to be consummated pursuant to the
Indenture, the Sale and Servicing Agreement and the Trust Agreement, the Seller
shall sell, transfer, assign and otherwise convey to the Purchaser, without
recourse (subject to the obligations herein), all right, title and interest of
the Seller, whether now owned or hereafter acquired, in, to and under the
following, collectively: (i) the Receivables; (ii) with respect to Actuarial
Receivables, monies due thereunder on or after the Cutoff Date (including
Payaheads) and, with respect to Simple Interest Receivables, monies due or
received thereunder on or after the Cutoff Date; (iii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in the Financed Vehicles; (iv) rights to receive
proceeds with respect to the Receivables from claims on any physical damage,
theft, credit life or disability insurance policies covering the Financed
Vehicles or Obligors; (v) rights to receive proceeds with respect to the
Receivables from recourse to Dealers thereon pursuant to the Dealer Agreements;
(vi) all of the Seller's rights to the Receivable Files; (vii) all payments and
proceeds with respect to the Receivables held by the Seller; (viii) all property
(including the right to receive Liquidation Proceeds) securing a Receivable
(other than a Receivable repurchased by the Servicer or purchased by the
Seller); (ix) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (x) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other
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property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
(b) Receivables Purchase Price. In consideration for the
Receivables, the other property described in Section 2.1(a) and delivery of the
Yield Supplement Agreement, the Purchaser shall, on the Closing Date, pay to the
Seller the Receivables Purchase Price. An amount equal to _____% of the
Receivables Purchase Price shall be paid to the Seller in cash. The remaining
_____% of the Receivables Purchase Price shall be deemed paid and returned to
the Purchaser and be considered a contribution to capital. The portion of the
Receivables Purchase Price to be paid in cash shall be by federal wire transfer
(same day) funds.
SECTION 2.2. The Closing. The sale and purchase of the Receivables
shall take place at a closing (the "Closing") at the offices of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the
Closing Date, simultaneously with the closings under: (a) the Sale and
Servicing Agreement pursuant to which the Purchaser will assign all of its
right, title and interest in, to and under the Receivables, the Yield Supplement
Agreement and other property described in Section 2.1(a) to the Trust in
exchange for the Notes, the Certificates and the Final Payment Certificate; (b)
the Indenture, pursuant to which the Trust will issue the Notes and pledge all
of its right, title and interest in, to and under the Receivables, the Yield
Supplement Agreement and certain other property described in Section 2.1(a) to
secure the Notes; (c) the Trust Agreement, pursuant to which the Trust will
issue the Certificates and the Final Payment Certificate; (d) the Underwriting
Agreement, pursuant to which the Purchaser will sell to the underwriters named
therein the Notes and (e) the Certificate Purchase Agreement, pursuant to which
the Purchaser will sell to the purchaser named therein the Certificates.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date hereof and
as of the Closing Date:
(a) Organization, etc. The Purchaser has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power,
authority and legal right to acquire and own the Receivables, and has full
corporate power and authority to execute and deliver this Agreement and to carry
out its terms.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Due Authorization and Binding Obligation. This Agreement
has been duly authorized, executed and delivered by the Purchaser, and is the
valid, binding and enforceable obligation of the Purchaser except as the same
may be limited by insolvency, bankruptcy, reorganization or other laws relating
to or affecting the enforcement of creditors' rights or by general equity
principles.
(d) No Violation. The execution, delivery and performance by
the Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the
certificate of incorporation or bylaws of the Purchaser, or conflict with, or
breach any of the terms or provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any indenture, agreement, mortgage,
deed of trust or other instrument to which the Purchaser is a party or by which
the Purchaser is bound or to which any of its properties are subject, or result
in the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such
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indenture, agreement, mortgage, deed of trust or other instrument (other than
this Agreement), or violate any law, order, rule, or regulation, applicable to
the Purchaser or its properties, of any federal or state regulatory body, any
court, administrative agency, or other governmental instrumentality having
jurisdiction over the Purchaser or any of its properties.
(e) No Proceedings. No proceedings or investigations are
pending to which the Purchaser is a party or of which any property of the
Purchaser is the subject, and, to the best knowledge of the Purchaser, no such
proceedings or investigations are threatened or contemplated by governmental
authorities or threatened by others, other than such proceedings or
investigations which will not have a material adverse effect upon the general
affairs, financial position, net worth or results of operations (on an annual
basis) of the Purchaser and do not (i) assert the invalidity of this Agreement,
(ii) seek to prevent the consummation of any of the transactions contemplated by
this Agreement and (iii) seek any determinations or ruling that might materially
and adversely affect the performance by the Purchaser of its obligations under,
or the validity and enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Purchaser
as of the date hereof and as of the Closing Date:
(i) Organization, etc. The Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and is duly
qualified to transact business and is in good standing in each jurisdiction
in the United States of America in which the conduct of its business or the
ownership or lease of its property requires such qualification.
(ii) Power and Authority; Binding Obligation. The Seller
has full power and authority to sell and assign the property sold and
assigned to the Purchaser hereunder and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action. This
Agreement has been duly authorized, executed and delivered by the Seller
and shall constitute the legal, valid, binding and enforceable obligation
of the Seller except as the same may be limited by insolvency, bankruptcy,
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reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(iii) No Violation. The execution, delivery and performance
by the Seller of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default
under, the certificate of incorporation or bylaws of the Seller, or
conflict with, or breach any of the terms or provisions of, or constitute
(with or without notice or lapse of time or both) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Seller is a party or by which the Seller is bound or any of its
properties are subject, or result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than this
Agreement), or violate any law, order, rule or regulation, applicable to
the Seller or its properties, of any federal or state regulatory body, any
court, administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
(iv) No Proceedings. No proceedings or investigations are
pending to which the Seller is a party or of which any property of the
Seller is the subject, and, to the best knowledge of the Seller, no such
proceedings or investigations are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings or investigations which will not have a material adverse effect
upon the general affairs, financial position, net worth or results of
operations (on an annual basis) of the Seller and do not (i) assert the
invalidity of this Agreement, (ii) seek to prevent the consummation of any
of the transactions contemplated by this Agreement and (iii) seek any
determinations or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity and
enforceability of, this Agreement.
(v) Florida Securities and Investor Protection Act. In
connection with the offering of the Notes in the State of Florida, the
Seller hereby certifies that it has complied with all provisions of Section
517.075 of the Florida Securities and Investor Protection Act.
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(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser relies in accepting the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement, but shall survive the sale, transfer, and assignment
of the Receivables to the Purchaser hereunder and the subsequent assignment and
transfer of the Receivables pursuant to the Sale and Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable (a)
shall have been originated in the United States of America by a Dealer for
the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall have been purchased by the Seller from such Dealer
under an existing Dealer Agreement with the Seller, and shall have been
validly assigned by such Dealer to the Seller in accordance with its terms,
(b) shall have created or shall create a valid, binding, subsisting, and
enforceable first priority security interest in favor of the Seller in the
related Financed Vehicle, which security interest shall be assignable by
the Seller to the Purchaser, (c) shall contain customary and enforceable
provisions such that the rights and remedies of the holder thereof shall be
adequate for realization against the collateral of the benefits of the
security, (d) in the case of Standard Receivables, shall provide for level
monthly payments (provided that the payment in the first or last month in
the life of the Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed by maturity and yield
interest at the APR, (e) in the case of Final Payment Receivables, shall
provide for a series of fixed level monthly payments and a larger payment
due after such level monthly payments that fully amortize the Amount
Financed by maturity and yield interest at the APR, (f) shall provide for,
in the event that such contract is prepaid, a prepayment that fully pays
the Principal Balance, (g) is a retail installment sales contract, (h) is
secured by a new or used automobile or light- or medium-duty truck, and (i)
is an Actuarial Receivable or a Simple Interest Receivable (and may also be
a Final Payment Receivable).
(ii) Schedule of Receivables. The information set forth in
the Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date, and no selection
procedures believed to be adverse to the Noteholders, the
Certificateholders or the Final Payment Certificateholder shall have been
utilized in selecting the Receivables from those receivables which meet the
criteria
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contained herein. The computer tape or other listing regarding the
Receivables made available to the Purchaser and its assigns is true and
correct in all respects.
(iii) Compliance with Law. Each Receivable and the sale of
the related Financed Vehicle shall have complied at the time it was
originated or made, and shall comply at the execution of this Agreement, in
all material respects with all requirements of applicable Federal, state,
and local laws, and regulations thereunder, including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Fair Credit Billing Act, the Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B, M
and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, the Texas
Consumer Credit Code, and State adaptations of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent
the genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(v) No Government Obligor. None of the Receivables is due
from the United States of America or any state or from any agency,
department, or instrumentality of the United States of America or any
state.
(vi) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment, and transfer thereof, each Receivable shall
be secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of the Seller as secured party or all necessary
and appropriate actions shall have been commenced that would result in the
valid perfection of a first priority security interest in the Financed
Vehicle in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed
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Vehicle have been released from the Lien granted by the related Receivable
in whole or in part, which security interest is assignable from the Seller
to the Purchaser..
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of the
representations and warranties made by the Seller in this Section 3.2(b)
with respect thereto.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no
liens or claims shall have been filed for work, labor, or materials
relating to a Financed Vehicle that shall be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by
the Receivable.
(xi) No Default; Repossession. Except for payment defaults
continuing for a period of not more than ninety (30) days as of the Cutoff
Date or the failure of the Obligor to maintain satisfactory physical damage
insurance covering the Financed Vehicle, no default, breach, violation, or
event permitting acceleration under the terms of any Receivable shall have
occurred; no continuing condition that with notice or the lapse of time
would constitute a default, breach, violation, or event permitting
acceleration under the terms of any Receivable shall have arisen; the
Seller shall not have waived any of the foregoing; and no Financed Vehicle
shall have been repossessed as of the Cutoff Date.
(xii) Insurance. The Seller, in accordance with its
customary procedures, shall have determined whether or not the Obligor has
maintained physical damage insurance (which insurance shall not be force
placed insurance) covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the
transfer and assignment of the Receivables herein contemplated constitute a
sale of the Receivables from the Seller to the Purchaser and that the
beneficial interest in and title to the Receivables not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by or
against the
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Seller under any bankruptcy law. No Receivable has been sold, transferred,
assigned, or pledged by the Seller to any Person other than the Purchaser.
Immediately prior to the transfer and assignment of the Receivables herein
contemplated, the Seller had good and marketable title to each Receivable
free and clear of all Liens, encumbrances, security interests, and rights
of others and, immediately upon the transfer thereof, the Purchaser shall
have good and marketable title to each Receivable, free and clear of all
Liens, encumbrances, security interests, and rights of others; and the
transfer has been perfected by all necessary action under the Relevant UCC.
(xiv) Valid Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction under
which the sale, transfer, and assignment of such Receivable under this
Agreement shall be unlawful, void, or voidable. The Seller has not entered
into any agreement with any account debtor that prohibits, restricts or
conditions the assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, filings under the Relevant UCC) necessary in any jurisdiction
to give the Purchaser a first priority perfected ownership interest in the
Receivables shall have been made.
(xvi) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the Relevant UCC.
(xvii) One Original. There shall be only one original
executed copy of each Receivable in existence.
(xviii) Principal Balance. Each Receivable had an original
principal balance (net of unearned precomputed finance charges) of not more
than $60,000, and a remaining Principal Balance as of the Cutoff Date of
not less than $100.
(xix) No Bankrupt Obligors. None of the Receivables shall
be due from any Obligor who, as of the Cutoff Date, was the subject of a
proceeding under the Bankruptcy Code of the United States or was bankrupt.
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(xx) New and Used Vehicles. Approximately ____% of the
Level Pay Pool Balance of the Receivables, constituting ____% of the total
number of the Receivables, as of the Cutoff Date, relate to new automobiles
and light- or medium-duty trucks financed at new vehicle rates.
Approximately ____% of the Level Pay Pool Balance of the Receivables,
constituting____% of the total number of Receivables included in the Trust,
relate to used automobiles and light- or medium-duty trucks. Of the used
vehicles, approximately ____% of the Level Pay Pool Balance of the
Receivables, constituting ____% of the total number of the Receivables, as
of the Cutoff Date, relate to program automobiles and light-duty trucks
manufactured in the current and immediately preceding model years which are
financed at new vehicle rates.
(xxi) Origination. Each Receivable shall have an
origination date on or after ________.
(xxii) Maturity of Receivables. Each Receivable shall have
a remaining maturity, as of the Cutoff Date, of not more than sixty [(60)
months, and an original maturity of not more than sixty (60) months].
(xxiii) Annual Percentage Rate. Each Receivable shall have
an APR of at least 0% and not more than 30%.
(xxiv) Scheduled Payments. Each Receivable shall have a
first Scheduled Payment due on or prior to October 31, 1997 and no
Receivable shall have a payment that is more than 30 days overdue as of the
Cutoff Date.
(xxv) Location of Receivable Files. The Receivable Files
shall be kept at one or more of the locations listed in Schedule A hereto.
(xxvii) Capped Receivables and Simple Interest Receivables.
Except to the extent that there has been no material adverse effect on
Noteholders, Certificateholders or the Final Payment Certificateholder,
each Capped Receivable has been treated consistently by the Seller as a
Simple Interest Receivable and payments with respect to each Simple
Interest Receivable have been allocated consistently in accordance with the
Simple Interest Method.
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(xxvii) No Receivables Originated in Alabama. No
Receivable shall have been originated in Alabama.
(xxvi) Other Data. The tabular data and the numerical data
relating to the characteristics of the Receivables contained in the
Prospectus and the Offering Circular is true and correct in all material
respects.
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ARTICLE IV
CONDITIONS
SECTION 4.1. Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Seller shall have performed
all obligations to be performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer files that
the Receivables have been sold to the Purchaser pursuant to this Agreement and
deliver to the Purchaser the Schedule of Receivables certified by an officer of
the Seller to be true, correct and complete.
(c) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller will
execute and deliver the Assignment in substantially the form of Exhibit A
hereto.
(ii) The Yield Supplement Agreement. At the Closing, the
Seller will execute and deliver the Yield Supplement Agreement. The Yield
Supplement Agreement shall be substantially in the form of Exhibit D to the
Sale and Servicing Agreement.
(iii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable
law, executed by the Seller, as seller or debtor, and naming the Purchaser,
as purchaser or secured party, naming the Receivables and the other
property conveyed hereunder as collateral, meeting the requirements of the
laws of each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such Receivables
to
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the Purchaser. The Seller shall deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the Purchaser on
or prior to the Closing Date.
(iv) Other Documents. Such other documents as the Purchaser
may reasonably request.
(d) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement, the Indenture, the Trust Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement shall be
consummated on the Closing Date.
SECTION 4.2. Conditions to Obligation of the Seller. The obligation
of the Seller to sell the Receivables to the Purchaser is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Purchaser shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the
Purchaser shall deliver to the Seller the Receivables Purchase Price, as
provided in Section 2.1(b).
17
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, that to the
extent that any provision of this Article V conflicts with any provision of the
Sale and Servicing Agreement, the Sale and Servicing Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements
and cause to be executed and filed such continuation statements, all in such
manner and in such places as may be required by law fully to preserve, maintain,
and protect the interest of the Purchaser under this Agreement in, to and under
the Receivables and the other property conveyed hereunder and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Purchaser
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) The Seller shall not change its name, identity, or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement filed by the Seller in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) of the
Relevant UCC, unless it shall have given the Purchaser at least sixty (60) days'
prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller shall give the Purchaser at least sixty (60)
days' prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the Relevant
UCC would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall promptly
file any such amendment, continuation statement or new financing statement. The
Seller shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Seller shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit the reader thereof to
18
know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each).
(e) The Seller shall maintain its computer systems so that, from
and after the time of sale hereunder of the Receivables to the Purchaser, the
Seller's master computer records (including any back-up archives) that refer to
a Receivable shall indicate clearly the interest of the Purchaser in such
Receivable and that such Receivable is owned by the Purchaser (or, upon sale of
the Reveivables to the Trust, by the Trust). Indication of the Purchaser's
ownership of a Receivable shall be deleted from or modified on the Seller's
computer systems when, and only when, the Receivable shall have been paid in
full or repurchased.
(f) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any automobile or
light- or medium-duty truck receivables (other than the Receivables) to any
prospective purchaser, lender, or other transferee, the Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, records,
or print-outs (including any restored from back-up archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Purchaser or its assignee
unless such Receivable has been paid in full or repurchased.
(g) The Seller shall permit the Purchaser and its agents at any
time during normal business hours to inspect, audit, and make copies of and
abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the Purchaser,
within ten (10) Business Days, a list of all Receivables (by contract number and
name of Obligor) then owned by the Purchaser, together with a reconciliation of
such list to the Schedule of Receivables.
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer any Receivable
to any other Person, or grant, create, incur, assume or suffer to exist any Lien
on any interest therein, and the Seller shall defend the right, title, and
interest of the Purchaser in, to and under the Receivables against all claims of
third parties claiming through or under the Seller; provided, however, that the
Seller's obligations under this Section 5.2 shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
19
SECTION 5.3. Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in, to and under
the Receivables.
SECTION 5.4. Indemnification.
(a) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from the failure of a Receivable to
be originated in compliance with all requirements of law and for any breach of
any of the Seller's representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from the use, ownership, or
operation by the Seller or any Affiliate thereof of a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all taxes, except for taxes on the net income
of the Purchaser, that may at any time be asserted against the Purchaser with
respect to the transactions contemplated herein and in the Yield Supplement
Agreement, including, without limitation, any sales, gross receipts, general
corporation, tangible personal property, privilege, or license taxes and costs
and expenses in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims
and liabilities to the extent that such cost, expense, loss, damage, claim or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the performance
of its duties under this Agreement or the Yield Supplement Agreement, as the
case may be, or by reason of reckless disregard of the Seller's obligations and
duties under the Agreement or the Yield Supplement Agreement, as the case may
be.
(e) The Seller shall defend, indemnify, and hold harmless the
Purchaser from and against all costs, expenses, losses, damages, claims and
liabilities arising out of or incurred in connection with the acceptance or
performance of the Seller's trusts and duties as Servicer under the Sale and
Servicing Agreement, except to the extent that such cost, expense, loss, damage,
20
claim or liability shall be due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of the Purchaser.
These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
SECTION 5.5. Sale. Seller agrees to treat this conveyance for all
purposes (including without limitation tax and financial accounting purposes) as
an absolute transfer on all relevant books, records, tax returns, financial
statements and other applicable documents.
21
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Obligations of Seller. The obligations of the Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.2. Repurchase Events. The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Owner Trustee, the Noteholders, the Certificateholders and the
Final Payment Certificateholder, that the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) hereof shall
constitute an event obligating the Seller to repurchase Receivables hereunder
(each, a "Repurchase Event") at a price equal to the Purchase Amount from the
Purchaser or from the Trust. Subject to Section 5.4(a) hereof, the repurchase
obligation of the Seller shall constitute the sole remedy to the Purchaser, the
Indenture Trustee, the Owner Trustee, the Noteholders, the Certificateholders
and the Final Payment Certificateholder against the Seller with respect to any
Repurchase Event.
SECTION 6.3. Purchaser's Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to Section 6.2 of
this Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in, to and
under such Receivables, and all security and documents relating thereto.
SECTION 6.4. Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement,
sell the Receivables to the Trust and assign its rights under this Agreement and
the Yield Supplement Agreement to the Owner Trustee for the benefit of the
Noteholders, the Certificateholders and the Final Payment Certificateholder, and
that the representations and warranties contained in this Agreement and the
rights of the Purchaser under this Agreement, including under Sections 6.2 and
6.3 hereof are intended to benefit the Trust, the Noteholders, the
Certificateholders and the Final Payment Certificateholder. The Seller hereby
consents to such sale and assignment.
22
(b) The Trust will, pursuant to the Indenture, pledge the Receivables
and its rights under this Agreement and the Yield Supplement Agreement to the
Indenture Trustee for the benefit of the Noteholders, and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under this Agreement, including under Sections 6.2 and 6.3, are
intended to benefit the Noteholders. The Seller hereby consents to such pledge.
SECTION 6.5. Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment that materially adversely
affects the rights of the Noteholders or the Certificateholders under the
Indenture, Sale and Servicing Agreement or Trust Agreement shall be consented to
by the Holders of Notes evidencing not less than 51% of the then Outstanding
Notes and the Holders of Certificates evidencing not less than 51% of the
Certificate Balance.
SECTION 6.6. Accountants' Letters.
(a) Ernst & Young LLP will review the characteristics of the
Receivables described in the Schedule of Receivables set forth as Exhibit B
hereto and will compare those characteristics to the information with respect to
the Receivables contained in the Prospectus.
(b) Seller will cooperate with the Purchaser and Ernst & Young
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) above and to deliver the letters required of them under the Underwriting
Agreement.
(c) Ernst & Young LLP will deliver to the Purchaser two letters,
dated the date of the Prospectus and the Offering Circular, respectively, in the
form previously agreed to by the Seller and the Purchaser, with respect to the
financial and statistical information contained in the Prospectus under the
caption "Delinquency and Loss Experience" and with respect to such other
information as may be agreed in the forms of such letters.
SECTION 6.7. Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
Assignment shall operate as a waiver thereof, nor shall any single or partial
23
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.8. Notices. All communications and notices pursuant hereto
to either party shall be in writing or by confirmed facsimile or telecopy or
telex and addressed or delivered to it at its address (or in case of telex, at
its telex number at such address) shown in the opening portion of this Agreement
or at such other address as may be designated by it by notice to the other party
and, if mailed or sent by telecopy, facsimile, or telex, shall be deemed given
when mailed, electronic confirmation of the telecopy or facsimile is received,
or when the notice is transmitted by telex.
SECTION 6.9. Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in, to and under the Receivables and the enforcement of any obligation of the
Seller hereunder.
SECTION 6.10. Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by the
Seller and the Purchaser set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the Closing under Section 2.2
hereof.
SECTION 6.11. Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, the Sale and Servicing Agreement or as
required by law.
SECTION 6.12. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement.
24
SECTION 6.13. Governing Law. This Agreement and the Assignment shall
be governed by, and construed in accordance with, the internal laws of the State
of New York.
SECTION 6.14. Agreements of Purchaser.
(a) The Purchaser will not commingle any of its assets with those
of the Seller or the ultimate parent of the Purchaser.
(b) The Purchaser will maintain separate corporate records and
books of account from those of the Seller or the ultimate parent of the
Purchaser.
(c) The Purchaser will conduct its business from an office
separate from the Seller or the ultimate parent of the Purchaser.
SECTION 6.15. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
25
IN WITNESS WHEREOF, the parties hereby have caused this Purchase
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
MITSUBISHI MOTORS CREDIT OF
AMERICA, INC., as Seller
By:
-------------------------
Name:
Title:
MMCA AUTO RECEIVABLES, INC.,
as Purchaser
By:
-------------------------
Name:
Title:
26
EXHIBIT A
[Form of Assignment]
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of October 1, 1997, between the undersigned and MMCA AUTO RECEIVABLES, INC. (the
"Purchaser") (as amended, supplemented or otherwise modified and in effect from
time to time, the "Purchase Agreement"), the undersigned does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Purchase Agreement), all right, title and
interest of the undersigned, whether now owned or hereafter acquired, in, to and
under the following, collectively: (i) the Receivables; (ii) with respect to
Actuarial Receivables, monies due thereunder on or after the Cutoff Date
(including Payaheads) and, with respect to Simple Interest Receivables, monies
due or received thereunder on or after the Cutoff Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Seller in the Financed Vehicles; (iv)
rights to receive proceeds with respect to the Receivables from claims on any
physical damage, theft, credit life or disability insurance policies covering
the Financed Vehicles or Obligors; (v) all rights to receive proceeds with
respect to the Receivables from recourse to Dealers thereon pursuant to the
Dealer Agreements; (vi) all of the Seller's rights to the Receivable Files;
(vii) payments and proceeds with respect to the Receivables held by the Seller;
(viii) all property (including the right to receive Liquidation Proceeds)
securing a Receivable (other than a Receivable repurchased by the Servicer or
purchased by the Seller); (ix) rebates of premiums and other amounts relating to
insurance policies and other items financed under the Receivables in effect as
of the Cutoff Date; and (x) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing. The foregoing sale does
not constitute and is not intended to result in any assumption by the
A-1
Purchaser of any obligation of the undersigned to the Obligors, insurers or any
other Person in connection with the Receivables, Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in, or incorporated by reference into, the
Purchase Agreement.
A-2
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _______, 1997.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By:
-----------------------
Name:
Title:
A-3
EXHIBIT B
[SCHEDULE OF RECEIVABLES]
Delivered to Indenture Trustee at Closing
B-1
SCHEDULE A
Locations of Receivables Files
Corporate Office
----------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
National Service Center
-----------------------
10805 Holder Street, ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
North Central Region
--------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Northeastern Region
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Southeastern Region
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Southwestern Region
-------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Western Region
--------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SA-1