$__________
MMCA AUTO OWNER TRUST 2000-1
$__________ __% CLASS A-1 ASSET BACKED NOTES
$__________ __% CLASS A-2 ASSET BACKED NOTES
$__________ __% CLASS A-3 ASSET BACKED NOTES
$__________ __% CLASS A-4 ASSET BACKED NOTES
$_________ __% CLASS B ASSET BACKED NOTES
MMCA AUTO RECEIVABLES TRUST
UNDERWRITING AGREEMENT
__________, 2000
SALOMON SMITH BARNEY INC.
As Representative of the several Underwriters
388 Greenwich Street
New York, NY 10013
Dear Sirs:
1. Introductory. MMCA Auto Receivables Trust (the "Seller"), a
Delaware business trust established pursuant to the Amended and Restated
Trust Agreement dated as of October 1, 1999 (the "MART Trust Agreement")
between Mitsubishi Motors Credit of America, Inc. ("MMCA") and Chase
Manhattan Bank Delaware, as trustee (the "Seller Trustee"), proposes,
subject to the terms and conditions stated herein, to cause MMCA Auto Owner
Trust 2000-1 (the "Trust") to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), acting severally and not
jointly, for whom you (the "Representative") is acting as representative
$_________ aggregate principal amount of ___% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), $_________ aggregate principal amount of ___%
Class A-2 Asset Backed Notes (the "Class A-2 Notes"), $_________ aggregate
principal amount of ___% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $_________ aggregate principal amount of ___% Class A-4 Asset
Backed Notes (the "Class A-4 Notes"), and $________ aggregate principal
amount of ___% Class B Asset Backed Notes (the "Class B Notes" and together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Notes"). The Notes will be issued pursuant to the
Indenture,
dated as of ________, 2000 (the "Indenture"), between the Trust and Bank of
Tokyo-Mitsubishi Trust Company (the "Indenture Trustee").
Concurrently with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $_________ aggregate principal
amount of certificates of beneficial interest (the "Certificates"), each
representing an interest in the property of the Trust (the "Trust
Property"). The Seller will retain the Certificates. The Certificates will
be issued pursuant to the Amended and Restated Trust Agreement, dated as of
_________, 2000 (the "Trust Agreement"), between the Seller and Wilmington
Trust Company, as Owner Trustee (the "Owner Trustee"). The Certificates
will be subordinated to the Notes.
The assets of the Trust will include, among other things, (i) a
pool of motor vehicle retail installment sale contracts secured by new and
used automobiles and sport-utility vehicles to be conveyed to the Trust on
the Closing Date (as such term is defined in Section 3) (the "Initial
Receivables") and from time to time thereafter during the Pre-Funding
Period (the "Subsequent Receivables" and together with the Initial
Receivables, the "Receivables") and (ii) with respect to (a) Actuarial
Receivables, certain monies due thereunder on or after the related Cutoff
Date and (b) Simple Interest Receivables, certain monies due or received
thereunder on or after the related Cutoff Date. The Receivables will be
sold to the Trust by the Seller and will be serviced for the Trust by MMCA
(in such capacity, the "Servicer"). Capitalized terms used but not defined
herein have the meanings ascribed thereto in the Sale and Servicing
Agreement, dated as of ______ 1, 2000 (the "Sale and Servicing Agreement"),
among the Trust, the Seller and the Servicer or, if not defined therein, in
the Indenture, the Trust Agreement or the Purchase Agreement, dated as of
_______ 1, 2000 (the "Purchase Agreement"), between MMCA, as seller and
MART, as purchaser, as the case may be. "Basic Documents" means,
collectively, (i) the Indenture, (ii) the Trust Agreement, (iii) the First
Tier Initial Assignment, dated as of ________, 2000 (the "First Tier
Initial Assignment"), as executed by MMCA, (iv) any First Tier Subsequent
Assignment (as defined in the Purchase Agreement), (v) the Sale and
Servicing Agreement, (vi) the Purchase Agreement, (vii) the Certificate of
Trust, dated _________, 2000 (the "Certificate of Trust"), between the
Seller and the Owner Trustee, (viii) the Administration Agreement, dated as
of ______ 1, 2000 (the "Administration Agreement"), among MMCA, as
administrator (the "Administrator"), the Trust and the Indenture Trustee,
(ix) the Note Depository Agreement, dated as of ________, 2000 (the "Note
Depository Agreement"), among the Trust, the Indenture Trustee, the
Administrator and The Depository Trust Company, (x) the Yield Supplement
Agreement, dated as of _____ 1, 2000 (the "Yield Supplement Agreement"),
between the Seller and MMCA and (xi) the Control Agreement, dated as of
______ 1, 2000 (the "Control Agreement"), among the Seller, the Trust, the
Servicer, the Indenture Trustee and Bank of Tokyo-Mitsubishi Trust Company,
as securities intermediry. "Transfer Date" means, with respect to an
Initial Receivable, the Closing Date, and with respect to a Subsequent
Receivable, the related Subsequent Transfer Date. The Seller hereby agrees
with the several Underwriters named in Schedule A hereto (the
"Underwriters") as follows:
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-39120)
relating to the Notes, including a form of prospectus, has been
filed with the Securities and Exchange Commission (the
"Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed
to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If the Seller does not propose to amend
the registration statement and if any post-effective amendment to
the registration statement has been filed with the Commission prior
to the execution and delivery of this Agreement, the most recent
post-effective amendment has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) under the Act ("Rule 462(c)"). For purposes of this
Agreement, "Effective Time" means (i) if the Seller has advised the
Representative that it does not propose to amend the registration
statement, the date and time as of which the registration
statement, or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c), or (ii) if the Seller has
advised the Representative that it proposes to file an amendment or
post-effective amendment to the registration statement, the date
and time as of which the registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. "Effective Date" means the
date of the Effective Time. The registration statement, as amended
at the Effective Time, including all information (if any) deemed to
be a part of the registration statement as of the Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Registration Statement". The form
of prospectus relating to the Notes, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Act ("Rule 424(b)") or, if no such filing is required, as included
in the Registration Statement, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the
Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date of this
Agreement, the Registration Statement conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither
of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on
the Effective Date, the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the
Rules and Regulations, (ii) neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) no additional
registration statement related to the Notes pursuant to Rule 462(b)
has been or will be filed. The two preceding sentences do not apply
to statements in or omissions from the Registration Statement or
the Prospectus based upon written information furnished to the
Seller by any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b).
(c) The Seller has been duly formed and is validly existing
as a business trust under the Delaware Business Trust Act, 12
Del.C. ss.3801 et. seq. (the "Delaware Trust Act"), with power and
authority to own its properties and conduct its business as
described in the Prospectus, and the Seller is duly qualified to do
business and is in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Seller or the Trust for the
consummation of the transactions contemplated by this Agreement and
the Basic Documents in connection with the issuance of the Notes
and the Certificates and the sale by the Seller of the Notes,
except such as have been obtained and made under the Act, such as
may be required under state securities laws and the filing of any
financing statements required to perfect the Seller's, the Trust's
and the Indenture Trustee's interest in the Receivables, which
financing statements have been filed in the appropriate offices
prior to the Closing Date.
(e) The Seller is not in violation of the MART Trust
Agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument to which it is a
party or by which it or its properties are bound which could have a
material adverse effect on the transactions contemplated herein or
in the Basic Documents. The execution, delivery and performance of
this Agreement and the Basic Documents, and the issuance of the
Notes and the Certificates and the sale by the Seller of the Notes
and compliance with the terms and provisions hereof and thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Seller or
any of its properties, or any agreement or instrument to which the
Seller is a party or by which the Seller is bound or to which any
of the properties of the Seller or any such subsidiary is subject,
or the MART Trust Agreement or other organizational documents of
the Seller, and the Seller has full power and authority to
authorize and issue the Notes and the Certificates and to sell the
Notes as contemplated by this Agreement, the Indenture and the
Trust Agreement, to enter into this Agreement and the Basic
Documents and to consummate the transactions contemplated hereby
and thereby.
(f) On the Closing Date, the Seller will have directed the
Owner Trustee to authenticate and execute the Certificates and,
when delivered and paid for pursuant to the Sale and Servicing
Agreement and the Trust Agreement, the Certificates will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Trust,
entitled to the benefits provided in the Trust Agreement and
enforceable in accordance with their terms.
(g) On the Closing Date, the Seller will have directed the
Owner Trustee to execute the Notes and directed the Indenture
Trustee to authenticate and deliver the Notes and, when
authenticated, delivered and paid for pursuant to the Indenture and
this Agreement, the Notes will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Trust, entitled to the benefits
provided in the Indenture and enforceable in accordance with its
terms.
(h) The Seller possesses adequate certificates, authorities
and permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Seller, would individually or in the
aggregate have a material adverse effect on the Seller.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Seller or any of its properties that, if determined adversely to
the Seller, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or
results of operations of the Seller, or would materially and
adversely affect the ability of the Seller to perform its
obligations under this Agreement or the other Basic Documents to
which it is a party, or which are otherwise material in the context
of the issuance and sale of the Notes or the issuance of the
Certificates or the sale of the Notes; and no such actions, suits
or proceedings are threatened or, to the Seller's knowledge,
contemplated.
(j) As of the Closing Date, the representations and
warranties of the Seller contained in the Basic Documents will be
true and correct.
(k) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller,
whether or not arising in the ordinary course of business and (ii)
there have been no transactions entered into by the Seller, other
than those in the ordinary course of business, which are material
with respect to the Seller.
(l) Each of the Basic Documents to which the Seller is a
party has been duly authorized by the Seller and, when duly
executed and delivered by the Seller and the other parties thereto,
will constitute a valid and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(m) This Agreement has been duly authorized, executed and
delivered by the Seller.
(n) The Seller has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Seller
has directed the Trust to execute and issue the Notes and the
Certificates and to sell the Notes.
(o) The Seller's assignment and delivery of the Receivables
to the Trust on the related Transfer Dates will vest in the Trust
all of the Seller's right, title and interest therein, subject to
no prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.
(p) The Trust's assignment of the Receivables to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance except for any tax lien, mechanics' lien or other
lien or encumbrance that attaches by operation of law.
(q) The Computer Tape of the Receivables created as of the
related Transfer Dates and made available to the Representative by
the Servicer are or will be, as applicable, complete and accurate
as of the date thereof and include or will include, as applicable,
an identifying description of the Receivables that are listed on
Schedule A to the Sale and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Basic Documents, the Notes and the Certificates and
any other agreements contemplated herein or therein shall have been
paid or will be paid by the Seller at or prior to the Closing Date
to the extent then due.
(s) The consummation of the transactions contemplated by
this Agreement and the Basic Documents, and the fulfillment of the
terms hereof and thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Seller
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller is a debtor or
guarantor.
(t) The Seller is not and, after giving effect to the
issuance of the Notes and Certificates and the offering and sale of
the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be required to be registered as an
"investment company" as defined in the Investment Company Act of
1940 (the "Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, at a purchase price of, in the case of (i) the
Class A-1 Notes, ________% of the principal amount thereof; (ii) the Class
A-2 Notes, ______% of the principal amount thereof; (iii) the Class A-3
Notes, ______% of the principal amount thereof; and (iv) the Class B Notes,
______% of the principal amount thereof, the respective principal amounts
of each Class of Notes set forth opposite the names of the Underwriters in
Schedule A hereto.
The Seller will deliver against payment of the purchase price
therefor, the Notes of each Class in the form of one or more permanent
global securities in definitive form (the "Global Notes") deposited with
the Indenture Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. Interests in
any permanent Global Notes will be held only in book-entry form through
DTC, except in the limited circumstances described in the Prospectus.
Payment for the Notes shall be made by the Underwriters in Federal (same
day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Representative by the Seller at a
bank acceptable to the Representative, at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036 at
10:00 a.m., New York time, on ______, 2000, or at such other time not later
than seven full business days thereafter as the Representative and the
Seller determine, such time being herein referred to as the "Closing Date",
against delivery to the Indenture Trustee as custodian for DTC of the
Global Notes representing all of the Notes. The Global Notes will be made
available for checking at the above office of Skadden, Arps, Slate, Meagher
& Flom LLP at least 24 hours prior to the Closing Date.
The Seller will deliver the Certificates to the above office of
Skadden, Arps, Slate, Meagher & Flom LLP on the Closing Date. The
certificate for the Certificates so to be delivered will be in definitive
form, in authorized denominations and registered in the name of the Seller
and will be made available for checking at the above office of Skadden,
Arps, Slate, Meagher & Flom LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the parties hereto have agreed that
the Closing Date will be not later than ______, 2000, unless otherwise
agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Seller. The Seller agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus
with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by the Representative,
subparagraph (4)) of Rule 424(b) not later than the earlier of (i)
the second business day following the execution and delivery of
this Agreement or (ii) the fifteenth business day after the
Effective Date. The Seller will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of
any proposal to amend or supplement the registration statement as
filed or the related prospectus, or the Registration Statement or
the Prospectus, and will not effect such amendment or
supplementation without the Representative's consent; and the
Seller will also advise the Representative promptly of the
effectiveness of the Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and
of any amendment or supplementation of the Registration Statement
or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Seller will promptly notify
the Representative of such event and will promptly prepare and file
with the Commission (subject to the Representative's prior review
pursuant to Section 5(b)), at its own expense, an amendment or
supplement which will correct such statement or omission, or an
amendment which will effect such compliance. Neither the
Representative's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the
Trust to make generally available to the Noteholders an earnings
statement of the Trust covering a period of at least 12 months
beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after
the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date.
(e) The Seller will furnish to the Representative copies of
the Registration Statement (two of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as delivery of a prospectus relating to the Notes is required
under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Representative requests. The Prospectus shall be so
furnished on or prior to 3:00 p.m., New York time, on the business
day following the later of the execution and delivery of this
Agreement or the Effective Time. All other such documents shall be
so furnished as soon as available. The Seller will pay the expenses
of printing and distributing to the Underwriters all such
documents.
(f) The Seller will arrange for the qualification of the
Notes for offering and sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and will continue such qualifications
in effect so long as required for the distribution of the Notes.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Seller will furnish to the
Representative and, upon request, to each of the other
Underwriters, copies of each certificate and the annual statements
of compliance delivered to the Indenture Trustee pursuant to
Section 3.9 of the Indenture and Sections 3.9 and 3.10 of the Sale
and Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Indenture Trustee
pursuant to Section 3.11 of the Sale and Servicing Agreement, by
first-class mail as soon as practicable after such statements and
reports are furnished to the Indenture Trustee, and (ii) such other
forms of periodic certificates or reports as may be delivered to
the Indenture Trustee, the Owner Trustee or the Noteholders under
the Indenture, the Trust Agreement, the Sale and Servicing
Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Seller will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Seller to the Noteholders, (ii) all documents
filed, or caused to be filed, by the Seller with the Commission
pursuant to the Exchange Act, any order of the Commission
thereunder and (iii) such other information in the possession of
the Seller concerning the Trust as the Representative from time to
time may reasonably request.
(i) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representative designates and the printing of memoranda
relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of
the Seller's officers and employees and any other expenses
of the Seller in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the rating provided with
respect to the Notes by Moody's Investors Service, Inc. ("Moody's")
and Standard & Poor's, a Division of The McGraw-Hill Companies,
Inc. ("Standard & Poor's" and, together with Moody's, the "Rating
Agencies") is conditional upon the furnishing of documents or the
taking of any other action by the Seller, the Seller shall furnish
such documents and take any such other action.
(k) On or before the related Transfer Date, the Seller shall
cause the computer records of the Seller and MMCA relating to the
Receivables to be marked to show the Trust's absolute ownership of
the Receivables, and from and after the related Transfer Date
neither the Seller nor MMCA shall take any action inconsistent with
the Trust's ownership of such Receivables, other than as permitted
by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes
on the Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Seller herein, to the accuracy of the
statements of the Seller's officers made pursuant to the provisions hereof,
to the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representative shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time is prior
to the execution and delivery of this Agreement, shall be on or
prior to the date of this Agreement or, if the Effective Time is
subsequent to the execution and delivery of this Agreement, shall
be prior to the filing of the amendment or post-effective amendment
to the registration statement to be filed shortly prior to such
Effective Time), of Ernst & Young LLP, in form and substance
satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable Rules
and Regulations and stating in effect that (i) they have performed
certain specified procedures as a result of which they determined
that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Trust, MMCA and the Seller) set forth in the Registration Statement
and the Prospectus (and any supplements thereto), agrees with the
accounting records of the Trust, MMCA and the Seller, excluding any
questions of legal interpretation, and (ii) they have performed
certain specified procedures with respect to the Receivables.
For purposes of this subsection, (i) if the Effective Time
is subsequent to the execution and delivery of this Agreement,
"Registration Statement" shall mean the registration statement as
proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to the Effective Time, including all
information (if any) deemed to be a part of the initial
registration statement as of such time pursuant to Rule 430A(b),
and (ii) "Prospectus" shall mean the prospectus included in the
Registration Statement. All financial statements and schedules
included in material incorporated by reference into the Prospectus
shall be deemed included in the Registration Statement for purposes
of this subsection.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred
not later than 10:00 p.m., New York time, on the date of this
Agreement or such later date as shall have been consented to by the
Representative. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations
and Section 5(a). Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Seller or the
Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations or retail motor vehicle financing business or light-duty
truck financing business of the Trust, the Seller, Mitsubishi Motor
Sales of America, Inc. ("MMSA"), Mitsubishi Motors Corporation
("MMC") or MMCA which, in the judgment of a majority in interest of
the Underwriters (including the Representative), materially impairs
the investment quality of each Class of the Notes or makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes;
(ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iii) any banking moratorium
declared by Federal, California or New York authorities; or (iv)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any
substantial national or international calamity or emergency if, in
the judgement of a majority in interest of the Underwriters
(including the Representative), the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for each Class of the Notes.
(d) The Representative shall have received an opinion of (A)
J. Sean Plater, Esq., Director of Legal Affairs of the Seller, (B)
Skadden, Arps, Slate, Meagher & Flom LLP, special New York counsel
to the Seller and (C) Richards, Layton & Finger, special Delaware
counsel to the Seller, in each case dated the Closing Date and
satisfactory in form and substance to the Representative and
counsel for the Underwriters, and, in the aggregate to the effect
that:
(i) the Seller has been duly formed and is validly
existing as a business trust under the Delaware Trust Act,
with full power and authority to own its properties and
conduct its business as described in the Prospectus; the
Seller is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires
such qualification; and the Seller has full power and
authority under the Delaware Trust Act and under the MART
Trust Agreement to enter into and perform its obligations
under this Agreement and the Basic Documents to which it is
a party, to direct the Indenture Trustee and the Owner
Trustee to execute the Notes and the Certificates,
respectively, to consummate the transactions contemplated
hereby and thereby, and had at all times, and now has, the
power, authority and legal right to acquire, own and sell
the Receivables;
(ii) MMCA has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; MMCA is duly qualified to do business and is in
good standing in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires
such qualification; and MMCA has full power and authority to
enter into and perform its obligations under this Agreement,
the Note Indemnification Agreement dated the date hereof
(the "Note Indemnification Agreement") between MMCA and the
Representative, acting on behalf of itself and as
Representative of the several Underwriters, and the Basic
Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby, and had at all
times, and now has, the power, authority and legal right to
acquire, own, sell and service the Receivables;
(iii) each of the direction by the Seller to the
Owner Trustee to execute the Notes and the direction by the
Seller to the Indenture Trustee to authenticate and deliver
the Notes has been duly authorized by the Seller and, when
the Notes have been duly executed by the Owner Trustee and,
when authenticated and delivered by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement,
the Notes will be duly and validly issued and outstanding
and will be entitled to the benefits of the Indenture;
(iv) the direction by the Seller to the Owner Trustee
to authenticate and execute the Certificates has been duly
authorized by the Seller and, when the Certificates have
been duly executed, authenticated and delivered by the Owner
Trustee in accordance with the terms of the Trust Agreement
and the Certificates have been delivered to and paid for by
the Seller pursuant to the Sale and Servicing Agreement and
the Trust Agreement, the Certificates will be duly and
validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement;
(v) the Note Indemnification Agreement and each Basic
Document to which MMCA is a party has been duly authorized,
executed and delivered by MMCA;
(vi) no consent, approval, authorization or order of,
or filing with any governmental agency or body or any court
is required for the execution, delivery and performance by
the Seller of this Agreement and the Basic Documents to
which it is a party, for the execution, delivery and
performance by MMCA of the Note Indemnification Agreement
and the Basic Documents to which it is a party or for the
consummation of the transactions contemplated by this
Agreement, the Basic Documents or the Note Indemnification
Agreement, except for (i) the filing of Uniform Commercial
Code financing statements in California with respect to the
transfer of the Receivables to the Seller pursuant to the
Purchase Agreement (the "Seller Financing Statements") and
the transfer of the Trust Property to the Trust pursuant to
the Sale and Servicing Agreement (the "Trust Financing
Statements") and the filing of a Uniform Commercial Code
financing statement in Delaware with respect to the grant by
the Trust of a security interest in the Trust Property to
the Indenture Trustee pursuant to the Indenture (the
"Indenture Financing Statements"), which financing
statements will be filed in the appropriate offices within
ten days of the Closing Date; (ii) such as have been
obtained and made under the Act; and (iii) such as may be
required under state securities laws;
(vii) the execution, delivery and performance of this
Agreement and the Basic Documents by the Seller, the
execution, delivery and performance of the Note
Indemnification Agreement and the Basic Documents by MMCA
and the consummation of any other of the transactions
contemplated herein, in the Note Indemnification Agreement
or the Basic Documents will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or
assets of MMCA or the Seller pursuant to the terms of the
Certificate of Incorporation or the By-Laws of MMCA or the
documents of organization of the Seller, or any statute,
rule, regulation or order of any governmental agency or
body, or any court having jurisdiction over MMCA or the
Seller or their respective properties, or any agreement or
instrument known to such counsel after due investigation to
which MMCA or the Seller is a party or by which MMCA or the
Seller or any of their respective properties is bound;
(viii) such counsel has no reason to believe that any
part of the Registration Statement or any amendment thereto,
as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date or
as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in
the Registration Statement and the Prospectus of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described
in the Registration Statement or the Prospectus which are
not described as required or of any contracts or documents
of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed
as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or
the Prospectus;
(ix) there are no actions, proceedings or
investigations pending to which the Seller or MMCA is a
party or, to the best knowledge of such counsel, after due
inquiry, threatened before any court, administrative agency
or other tribunal having jurisdiction over MMCA or the
Seller, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of
this Agreement, the Note Indemnification Agreement, any
Basic Document, the Notes or the Certificates, (iii) seeking
to prevent the issuance of the Notes or the Certificates or
the consummation of any of the transactions contemplated by
this Agreement or the Basic Documents, (iv) which might
materially and adversely affect the performance by the
Seller or MMCA of its obligations under, or the validity or
enforceability of, this Agreement, the Note Indemnification
Agreement, any Basic Document, the Notes or the Certificates
or (v) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Prospectus under
the heading "FEDERAL INCOME TAX CONSEQUENCES";
(x) the statements in the Registration Statement
under the heading "SOME IMPORTANT LEGAL ASPECTS OF THE
RECEIVABLES", to the extent they constitute statements of
matters of law or legal conclusions with respect thereto,
are correct in all material respects;
(xi) each of MMCA and the Seller has obtained all
necessary licenses and approvals in each jurisdiction in
which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by MMCA,
the Seller, the Trust, the Owner Trustee or the Indenture
Trustee;
(xii) this Agreement and each Basic Document to which
the Seller is a party has been duly authorized, executed and
delivered by the Seller;
(xiii) such counsel is familiar with MMCA's standard
operating procedures relating to MMCA's acquisition of a
perfected first priority security interest in the vehicles
financed by MMCA pursuant to retail installment sale
contracts in the ordinary course of MMCA's business;
assuming that MMCA's standard procedures are followed with
respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe
that MMCA has not or will not continue to follow its
standard procedures in connection with the perfection of
security interests in the Financed Vehicles), MMCA has
acquired or will acquire a perfected first priority security
interest in the Financed Vehicles;
(xiv) the Receivables are chattel paper as defined in
the UCC; and
(xv) immediately prior to the sale of the Receivables
by MMCA to the Seller pursuant to the Purchase Agreement and
the Assignment, MMCA was the sole owner of all right, title
and interest in, to and under the Receivables and the other
property to be transferred by it to the Seller; immediately
prior to the sale of the Receivables by the Seller to the
Trust pursuant to the Sale and Servicing Agreement, the
Seller was the sole owner of all right, title and interest
in, to and under the Receivables and the other property to
be sold by it to the Trust.
(e) The Representative shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the
Seller, dated the Closing Date, and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) each Initial Receivable is a motor vehicle retail
installment sales contract that constitutes "chattel paper"
as defined in Section 9-105 of the UCC in effect in the
States of New York, Delaware and California;
(ii) the provisions of the Sale and Servicing
Agreement are effective to create, in favor of the Owner
Trustee, a valid security interest (as such term is defined
in Section 1-201 of the New York UCC) in the Seller's rights
in the Initial Receivables and proceeds thereof, which
security interest, if characterized as a transfer for
security, will secure payment of the Notes;
(iii) the Trust Financing Statement is in appropriate
form for filing in the relevant filing office under the New
York UCCs upon the filing of the Trust Financing Statement
in the relevant filing office, the security interest in
favor of the Owner Trustee in the Initial Receivables and
proceeds thereof will be perfected, and no other security
interest of any other creditor of the Seller will be equal
or prior to the security interest of the Owner Trustee in
the Initial Receivables and proceeds thereof;
(iv) the provisions of the Indenture are effective to
create in favor of the Indenture Trustee, a valid security
interest (as such term is defined in Section 1-201 of the
Relevant UCC) in the Initial Receivables and proceeds
thereof to secure payment of the Notes;
(v) assuming that each of the direction by the Seller
to the Owner Trustee to execute the Notes and the direction
by the Seller to the Indenture Trustee to authenticate and
deliver the Notes has been duly authorized by the Seller,
when the Notes have been duly executed by the Owner Trustee
and authenticated and delivered by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement,
the Notes will be duly and validly issued and outstanding
and will be entitled to the benefits of the Indenture
(vi) assuming that the direction by the Seller to the
Owner Trustee to execute, authenticate and deliver the
Certificates has been duly authorized by the Seller, when
the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the terms
of the Trust Agreement and the Certificates have been
delivered to and paid for by the Seller pursuant to the Sale
and Servicing Agreement and the Trust Agreement, the
Certificates will be duly and validly issued and outstanding
and will be entitled to the benefits of the Trust Agreement;
(vii) the statements in the Prospectus under the
caption "SOME IMPORTANT LEGAL ASPECTS OF THE RECEIVABLES",
to the extent they constitute matters of law or legal
conclusions, are correct in all material respects;
(viii) the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act");
(ix) the Indenture has been duly qualified under the
Trust Indenture Act;
(x) no authorization, approval or consent of any
court or governmental agency or authority is necessary under
the Federal law of the United States or the laws of the
State of New York in connection with the execution, delivery
and performance by the Seller of this Agreement and the
Basic Documents to which it is a party, the execution,
delivery and performance by MMCA of the Note Indemnification
Agreement and the Basic Documents to which it is a party or
for the consummation of the transactions contemplated by
this Agreement, the Note Indemnification Agreement or the
Basic Documents, except such as may be required under state
securities laws and such as have been obtained and made
under the Act;
(xi) the Registration Statement was declared
effective under the Act as of the date specified in such
opinion, the Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included
in the Registration Statement, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under
the Act, and the Registration Statement and the Prospectus,
and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in
all material respects with the requirements of the Act and
the Rules and Regulations; such counsel has no reason to
believe that any part of the Registration Statement or any
amendment thereto, as of its effective date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and to the best knowledge of such
counsel, such counsel does not know of any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not
described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus;
(xii) each of the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Yield
Supplement Agreement, the Purchase Agreement and the First
Tier Initial Assignment constitutes the legal, valid and
binding agreement of the Seller and MMCA, in each case as to
those documents to which it is a party, enforceable against
the Seller and MMCA in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law) except, as
applicable, that such counsel need not express an opinion
with respect to indemnification or contribution provisions
which may be deemed to be in violation of the public policy
underlying any law or regulation;
(xiii) assuming due authorization, execution and
delivery by the Indenture Trustee and the Owner Trustee, the
Indenture constitutes the legal, valid and binding agreement
of the Trust, enforceable against the Trust in accordance
with its terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws affecting creditors' rights generally
from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless
of whether such enforceability is considered in a proceeding
in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to
indemnification or contribution provisions which may be
deemed to be in violation of the public policy underlying
any law or regulation;
(xiv) neither the Trust nor the Seller is and, after
giving effect to the issuance of the Notes and the
Certificates and the sale of the Notes and the application
of the proceeds thereof, as described in the Prospectus,
neither the Trust nor the Seller will be, an "investment
company" as defined in the Investment Company Act of 1940,
as amended;
(xv) the Notes, the Certificates, the Purchase
Agreement, the Administration Agreement, the First Tier
Initial Assignment, the Sale and Servicing Agreement, the
Yield Supplement Agreement, the Trust Agreement, this
Agreement and the Indenture each conform in all material
respects with the descriptions thereof contained in the
Registration Statement and the Prospectus; and
(xvi) the Trust Agreement is the legal, valid and
binding agreement of the Seller, enforceable against the
Seller, in accordance with its terms under the law of the
State of Delaware.
(f) The Representative shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that for federal income tax purposes (i) the Notes
will be characterized as indebtedness of the Trust, (ii) the Trust
will not be classified as an association (or publicly traded
partnership) taxable as a corporation and (iii) the statements set
forth in the Prospectus under the headings "SUMMARY OF TERMS--ERISA
Considerations", "ERISA CONSIDERATIONS", "SUMMARY OF TERMS--Tax
Status", "FEDERAL INCOME TAX CONSEQUENCES" and "TERMS OF THE
NOTES--Terms of the Indenture--" (last sentence of fourth paragraph
under "Events of Default Under the Indenture" and last sentence of
first paragraph under "Remedies Following an Event of Default"
only) to the extent such statements constitute matters of law or
legal conclusions with respect thereto, are correct in all material
respects.
(g) The Representative shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special tax counsel for
the Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that (i) for California state franchise and income
tax purposes (A) the Trust will not be taxable as a corporation and
(B) the Notes will be treated as indebtedness, (ii) the Notes will
be characterized as indebtedness for Delaware state income tax
purposes, (iii) the Trust will not be subject to Delaware state
franchise or income tax as a separate entity and (iv) the
statements set forth in the Prospectus under the headings "SUMMARY
OF TERMS-Tax Status" and "STATE TAX CONSEQUENCES", to the extent
such statements constitute matters of law or legal conclusions with
respect thereto, are correct in all material respects.
(h) The Representative shall have received from Brown & Wood
LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as
the Representative may require, and the Seller shall have furnished
to such counsel such documents as it may request for the purpose of
enabling it to pass upon such matters.
(i) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the President
or any Vice President and a principal financial or accounting
officer, or equivalent officer or officers, of each of the Seller
and MMCA in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the
representations and warranties of the Seller in this Agreement are
true and correct; the representations of MMCA in the Note
Indemnification Agreement are true and correct; the Seller or MMCA,
as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; the representations and warranties of
the Seller or MMCA, as applicable, in the Basic Documents are true
and correct as of the dates specified in such agreements; the
Seller or MMCA, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date; no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(j) The Representative shall have received an opinion of
Pryor, Cashman, Sherman & Flynn, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Indenture Trustee is a banking corporation
duly incorporated and validly existing under the laws of the
State of New York;
(ii) the Indenture Trustee has the full corporate
trust power to accept the office of indenture trustee under
the Indenture and to enter into and perform its obligations
under the Indenture, the Sale and Servicing Agreement and
the Administration Agreement;
(iii) the execution and delivery of the Indenture and
the Administration Agreement and the acceptance of the Sale
and Servicing Agreement and the performance by the Indenture
Trustee of its obligations under the Indenture, the Sale and
Servicing Agreement and the Administration Agreement have
been duly authorized by all necessary corporate action of
the Indenture Trustee and each has been duly executed and
delivered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing Agreement
and the Administration Agreement constitute valid and
binding obligations of the Indenture Trustee enforceable
against the Indenture Trustee in accordance with their terms
under the laws of the State of New York and the federal law
of the United States;
(v) the execution and delivery by the Indenture
Trustee of the Indenture and the Administration Agreement
and the acceptance of the Sale and Servicing Agreement do
not require any consent, approval or authorization of, or
any registration or filing with, any New York or United
States federal governmental authority, other than the
qualification of the Indenture Trustee under the Trust
Indenture Act;
(vi) each of the Notes has been duly authenticated
and delivered by the Indenture Trustee;
(vii) neither the consummation by the Indenture
Trustee of the transactions contemplated in the Sale and
Servicing Agreement, the Indenture or the Administration
Agreement nor the fulfillment of the terms thereof by the
Indenture Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the
charter, By-laws or other organizational documents of the
Indenture Trustee or the terms of any indenture or other
agreement or instrument known to such counsel and to which
the Indenture Trustee or any of its subsidiaries is a party
or is bound or any judgment, order or decree known to such
counsel to be applicable to the Indenture Trustee or any of
its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Indenture Trustee or any of its
subsidiaries;
(viii) to such counsel's knowledge there is no
action, suit or proceeding pending or threatened against the
Indenture Trustee (as trustee under the Indenture or in its
individual capacity) before or by any governmental authority
that if adversely decided, would materially adversely affect
the ability of the Indenture Trustee to perform its
obligations under the Indenture, the Sale and Servicing
Agreement or the Administration Agreement; and
(ix) the execution, delivery and performance by the
Indenture Trustee of the Sale and Servicing Agreement, the
Indenture and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion
thereof, to any lien created by or arising with respect to
the Indenture Trustee that are unrelated to the transactions
contemplated in such Agreements.
(k) The Representative shall have received an opinion of
Richards, Layton & Finger P.A., counsel to the Owner Trustee, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect
that:
(i) the Owner Trustee has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of Delaware;
(ii) the Owner Trustee has full corporate trust power
and authority to enter into and perform its obligations
under the Trust Agreement and, on behalf of the Trust, under
the other Basic Documents to which it is a party and has
duly authorized, executed and delivered such Basic Documents
and such Basic Documents constitute the legal, valid and
binding agreement of the Owner Trustee, enforceable in
accordance with their terms, except that certain of such
obligations may be enforceable solely against the Trust
Property (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iii) the Certificates have been duly executed,
authenticated and delivered by the Owner Trustee as owner
trustee and authenticating agent; each of the Notes has been
duly executed by the Owner Trustee, on behalf of the Trust;
(iv) the execution and delivery by the Owner Trustee
of the Trust Agreement and, on behalf of the Trust, of the
other Basic Documents to which it is a party and the
performance by the Owner Trustee of its obligations
thereunder do not conflict with, result in a breach or
violation of, or constitute a default under the Articles of
Association or By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the
Owner Trustee of the Trust Agreement and, on behalf of the
Trust, of the other Basic Documents to which it is a party
do not require any consent, approval or authorization of, or
any registration or filing with, any Delaware or United
States federal governmental authority having jurisdiction
over the trust power of the owner Trustee, other than those
consents, approvals or authorizations as have been obtained
and the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware.
(l) The Representative shall have received an opinion of
Richards, Layton & Finger, P.A., special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) the Trust has been duly formed and is validly
existing as a business trust under the Delaware Trust Act;
(ii) the Trust has the power and authority under the
Delaware Trust Act and the Trust Agreement, and the Trust
Agreement authorizes the Owner Trustee, to execute, deliver
and perform its obligations under the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the
Note Depository Agreement, the Notes and the Certificates;
(iii) to the extent that Article 9 of the UCC as in
effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflict of laws principles),
and assuming that the security interest created by the
Indenture in the Receivables has been duly created and has
attached, upon the filing of the Indenture Financing
Statement with the Secretary of State of Delaware the
Indenture Trustee will have a perfected security interest in
the Trust's rights in such Receivables and the proceeds
thereof, and such security interest will be prior to any
other security interest granted by the Trust that is
perfected solely by the filing of financing statements under
the Delaware UCC, excluding purchase money security
interests under ss.9-312(4) of the Delaware UCC and
temporarily perfected security interests in proceeds under
ss.9-306(3) of the Delaware UCC;
(iv) no re-filing or other action is necessary under
the Delaware UCC in order to maintain the perfection of such
security interest except for the filing of continuation
statements at five year intervals;
(v) assuming that the Notes have been duly executed
by the Owner Trustee on behalf of the Trust, and assuming
that the Notes have been duly authenticated by the Indenture
Trustee, when the Notes have been delivered in accordance
with the Indenture, the Notes will be validly issued and
entitled to the benefits of the Indenture;
(vi) assuming that the Certificates have been duly
authorized, executed and authenticated by the Owner Trustee
on behalf of the Trust, when the Certificates have been
issued and delivered in accordance with the instructions of
the Seller, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement; and
(vii) under 12 Del. C.ss.3805(b), no creditor of any
Certificateholder (including creditors of the Seller in its
capacity as Certificateholder) shall have any right to
obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the
Trust except in accordance with the terms of the Trust
Agreement.
(m) The Representative shall have received an opinion of
Pryor Cashman Sherman & Flynn LLP, counsel to the Seller Trustee,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, to the effect
that:
(i) the Seller Trustee has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of Delaware;
(ii) the Seller Trustee has full corporate trust
power and authority to enter into and perform its
obligations under the MART Trust Agreement and has duly
authorized, executed and delivered the MART Trust Agreement
and the MART Trust Agreement constitutes the legal, valid
and binding agreement of the Seller Trustee, enforceable in
accordance with its terms;
(iii) the execution and delivery by the Seller
Trustee of the MART Trust Agreement and the performance by
the Seller Trustee of its obligations thereunder do not
conflict with, result in a breach or violation of, or
constitute a default under the Articles of Association or
By-laws of the Seller Trustee; and
(iv) the execution, delivery and performance by the
Seller Trustee of the MART Trust Agreement do not require
any consent, approval or authorization of, or any
registration or filing with, any Delaware or United States
federal governmental authority having jurisdiction over the
trust power of the Seller Trustee, other than those
consents, approvals or authorizations as have been obtained.
(n) The Representative shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Seller,
dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, (i) with
respect to the characterization of the transfer of the Receivables
by MMCA to the Seller and from the Seller to the Trust and (ii) to
the effect that should MMCA become the debtor in a case under the
Bankruptcy Code, and the Seller would not otherwise properly be a
debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full
consideration of all relevant factors, should not order, over the
objection of the Certificateholders or the Noteholders, the
substantive consolidation of the assets and liabilities of the
Seller with those of MMCA and such opinion shall be in
substantially the form previously discussed with the Representative
and counsel for the Underwriters and in any event satisfactory in
form and in substance to the Representative and counsel for the
Underwriters.
(o) The Representative shall have received evidence
satisfactory to it and its counsel that, within ten days of the
Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the state of (i)
California reflecting the transfer of the interest of MMCA in the
Receivables and the proceeds thereof to the Seller and the transfer
of the interest of the Seller in the Receivables and the proceeds
thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Receivables and the proceeds
thereof to the Indenture Trustee.
(p) The Representative shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the
Seller, dated the Closing Date and satisfactory in form and
substance to the Representative and the counsel for the
Underwriters to the effect that (i) the provisions of the Indenture
are effective to create a valid security interest in favor of the
Indenture Trustee, to secure payment of the Notes, in all
"securities entitlements" (as defined in Section 8-102(a)(17) of
the New York UCC) with respect to "financial assets" (as defined in
Section 8-102(a)(9) of the New York UCC) now or hereafter credited
to the Reserve Account (such securities entitlements, the
"Securities Entitlements"), (ii) the provisions of the control
agreement for purposes of Article 8 of the New York UCC are
effective to perfect the security interest of the Indenture Trustee
in the Securities Entitlements and (iii) no security interest of
any other creditor of the Trust will be prior to the security
interest of the Indenture Trustee in such Securities Entitlements.
(q) The Class A-1, Class A-2 and Class A-3 Notes shall have
been rated at least "Aaa" and "AAA" by Moody's and Standard &
Poor's, respectively, and the Class B Notes shall have been rated
at least "A2" and "A" by Moody's and Standard & Poor's,
respectively.
(r) The Representative shall have received a letter, dated
the Closing Date, of Ernst & Young LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
days prior to the Closing Date for purposes of this subsection.
(s) On or prior to the Closing Date, the Certificates shall
have been issued to the Seller.
(t) The Representative shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP and each other counsel for the
Seller, a letter dated the Closing Date to the effect that the
Underwriters may rely upon each opinion rendered by such counsel to
either Standard & Poor's or Moody's in connection with the rating
of any Class of the Notes, as if each such opinion were addressed
to the Underwriters.
(u) The Representative shall receive from Skadden, Arps,
Slate, Meagher & Flom LLP, and each other counsel for the Seller,
reliance letters with respect to each Opinion of Counsel required
to be delivered to either Standard & Poor's or Moody's in
connection with each transfer to the Trust of Subsequent
Receivables.
The Seller will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests.
The Representative may in its sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Seller will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred;
provided, however, that the Seller will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
subsection (b) below; and provided, further, that with respect to
any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that the untrue statement or omission or
alleged untrue statement or omission was eliminated or remedied in
the Prospectus, which Prospectus was required to be delivered by
such Underwriter under the Act to such person and was not so
delivered if the Seller had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Seller against any losses, claims,
damages or liabilities to which the Seller may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller by such
Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Seller in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the figures on the cover page concerning the terms of
the offering by the Underwriters, the concession and reallowance
figures appearing under the caption "Underwriting" and the
information contained in the fifth paragraph under the caption
"Underwriting".
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any
indemnified party is or could have been a party if indemnity could
have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Seller on the one hand and the Underwriters on the other from the
offering of the Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Seller on
the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller on the
one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Seller bear to the
total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Seller
or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller under this Section shall
be in addition to any liability which the Seller may otherwise have
and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Seller, to each
officer of the Seller who has signed the Registration Statement and
to each person, if any, who controls the Seller within the meaning
of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing
Date and the aggregate principal amount of Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Notes that the Underwriters are
obligated to purchase on the Closing Date, the Representative may make
arrangements satisfactory to the Seller for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes that such defaulting Underwriters agreed
but failed to purchase on the Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase
on the Closing Date and arrangements satisfactory to the Representative and
the Seller for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Seller
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or the Seller or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Notes
have been purchased hereunder the representations and warranties in Section
2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (ii), (iii) or
(iv) of Section 6(c), the Seller will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at 388 Greenwich Street, New York, New York
10013, Attention: General Counsel, or, if sent to the Seller, will be
mailed, delivered or sent by facsimile and confirmed to it at P.O. Box
6038, Cypress, California 90630-5205, Attention: Secretary/Treasurer,
Telecopy: (714) 236-1300; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied
and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all
the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Seller hereby submits to the nonexclusive
jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions
contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Seller one of
the counterparts hereof, whereupon it will become a binding agreement
between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
MMCA AUTO RECEIVABLES TRUST
By:
------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
SALOMON SMITH BARNEY INC.
By:
----------------------------
Name:
Title:
Acting on behalf of itself and as
the Representative of the several
Underwriters.
SCHEDULE A
<TABLE>
<CAPTION>
Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriter Notes Notes Notes Notes Notes
------------------------ ----------- ---------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Salomon Smith Barney Inc. $ $ $ $ $
----------- ---------- ----------- ----------- -----------
Total $ $ $ $ $
=========== ========== =========== =========== ===========
</TABLE>
