Exhibit No. 10.1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of August 1, 1998 (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 sale 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 1998-1 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 receipt and sufficiency of which are hereby acknowledged by the
parties hereto, 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 August 20, 1998.
"Cutoff Date" shall mean August 1, 1998.
"Indenture" shall mean the Indenture, dated as of August 1, 1998,
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.
"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.
"Receivable" shall mean, for the purposes of this Agreement, each
retail installment sale 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 $927,719,167.00.
"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.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of August 1, 1998, 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 1998-1 created by
the Trust Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of August 1, 1998, 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.
"Underwriting Agreement" shall mean the Underwriting Agreement by
and between ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as
representative of the several underwriters, and the Purchaser, dated August
13, 1998.
"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.
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 and Recoveries and
Financed Vehicles and the proceeds thereof acquired by the Seller pursuant
to the terms of a Final Payment Receivable), guarantees and other
collateral 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.
(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
$762,237,496.84 of the Receivables Purchase Price shall be paid to the
Seller in cash. The remainder of the Receivables Purchase Price shall be
paid by crediting the Seller with a contribution to the capital of the
Purchaser. 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 and the Certificates;
(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 (d) the
Underwriting Agreement, pursuant to which the Purchaser will sell to the
underwriters named therein the Notes.
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
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, 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.
(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 (x) originated in the United States of America by
a Dealer for the consumer or commercial sale of a Financed Vehicle in
the ordinary course of such Dealer's business or (y) originated by the
Seller in connection with the refinancing by the Seller of a motor
vehicle retail installment sales contract of the type described in
subclause (x) above, 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 (unless such
Receivable was originated by the Seller in connection with a
refinancing), and shall have been validly assigned by such Dealer to
the Seller in accordance with its terms (unless such Receivable was
originated by the Seller in connection with a refinancing), (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 last month in the life of the
Receivable may be 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
or the Certificateholders shall have been utilized in selecting the
Receivables from those receivables which meet the criteria contained
herein. The compact disk 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 valid, subsisting and enforceable
perfected first priority security interest in the Financed Vehicle in
favor of the Seller as secured party and, at such time as enforcement
of such security interest is sought, there shall exist a valid,
subsisting and enforceable first priority perfected security interest
in the Financed Vehicle for the benefit of the Purchaser and the
Trust, respectively (subject to any statutory or other lien arising by
operation of law after the Closing Date which is prior to such
security interest).
(vii) Receivables in Force. No Receivable shall have
been satisfied, subordinated, or rescinded, nor shall any Financed
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 thirty (30) days or
payment defaults of 10% or less of a payment, in each case 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 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 security
interest in the Receivables shall be made within ten (10) days of the
Closing Date.
(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.
(xx) New and Used Vehicles. Approximately 93.29% of
the Pool Balance of the Receivables, constituting approximately 88.51%
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 6.71% of the Pool Balance of the
Receivables, constituting approximately 11.49% of the total number
of Receivables, as of the Cutoff Date, relate to used automobiles
and light- or medium-duty trucks. Of the new and used vehicles,
approximately 2.26% of the Pool Balance of the Receivables,
constituting approximately 3.16% 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. Of
the used vehicles, approximately 3.38% of the Pool Balance of the
Receivables, constituting approximately 6.75% of the total number
of Receivables as of the Cutoff Date, relate to refinanced program
automobiles and light- or medium-duty trucks manufactured in prior
model years which are financed at the original rates set forth in
the related Contracts or at used vehicle rates.
(xxi) Origination. Each Receivable shall have an
origination during or after April 1994.
(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 August 31, 1998 and no
Receivable shall have a payment of which more than 10% of such payment
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.
(xxvi) Capped Receivables and Simple Interest
Receivables. Except to the extent that there has been no material
adverse effect on Noteholders or Certificateholders, 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.
(xxvii) No Receivables Originated in Alabama. No
Receivable shall have been originated in Alabama.
(xxviii) Other Data. The tabular data and the
numerical data relating to the characteristics of the Receivables
contained in the Prospectus and is true and correct in all material
respects.
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. Within ten (10) days
of 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 the
Purchaser. The Seller shall deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the
Purchaser within ten (10) days of 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 and
the Underwriting 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).
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 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 Receivables 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, compact disks, 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.
SECTION 5.3. Seller Officer's Certificates. The Seller
covenants to fulfill each covenant made by it in the Seller Officer's
Certificates.
SECTION 5.4. 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 5.5. 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, 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 5.6. 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.
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 and the Certificateholders,
that the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.2(b) 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), the repurchase obligation of the Seller
shall constitute the sole remedy to the Purchaser, the Indenture Trustee,
the Owner Trustee, the Noteholders and the Certificateholders 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 and the Certificateholders, 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 Trust, the Noteholders and the
Certificateholders. The Seller hereby consents to such sale and
assignment.
(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
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 perform certain procedures
regarding 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 procedures
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 a
letter, dated the date of the Prospectus, 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 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.
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.
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.
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: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
MMCA AUTO RECEIVABLES, INC.,
as Purchaser
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of August 1, 1998, 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) all payments and proceeds with respect to the Receivables held by the
Seller; (viii) all property (including the right to receive Liquidation
Proceeds and Recoveries and Financed Vehicles and the proceeds thereof
acquired by the Seller pursuant to the terms of a Final Payment
Receivable), guarantees and other collateral 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 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.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of August 1, 1998.
MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
By: _____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
EXHIBIT B
[SCHEDULE OF RECEIVABLES]
Delivered to Indenture Trustee at Closing
SCHEDULE A
Locations of Receivables Files
Corporate Office
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▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
National Service Center
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10805 Holder Street, ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
North Central Region
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Northeastern Region
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Southeastern Region
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Southwestern Region
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Western Region
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
