PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of __________ (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 6363 Katella Avenue, Cypress, California 90630-5205, and MMCA AUTO
RECEIVABLES TRUST, a Delaware business trust (the "Purchaser"), having its
principal executive office at 6363 Katella Avenue, Cypress, California
90630-5205.
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 sports-utility vehicles from motor vehicle
dealers; and
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Initial Receivables (such capitalized term and
the other capitalized terms used herein have the meanings assigned thereto
pursuant to Article I hereof) and certain additional property related
thereto are to be sold by the Seller to the Purchaser on the Closing Date
and the Subsequent Receivables and certain additional property related
thereto are to be sold by the Seller to the Purchaser from time to time
during the Pre-Funding and Reinvestment Period, which Receivables and other
property related thereto will be sold by the Purchaser, pursuant to the
Sale and Servicing Agreement, to the MMCA Auto Owner Trust 2000-1 to be
created 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 preamble
hereto.
"Assignment" shall mean, for purposes of this Agreement, the
First-Tier Initial Assignment or any First-Tier Subsequent Assignment, as
the context may require.
"Closing" shall have the meaning specified in Section 2.3.
"Closing Date" shall mean __________.
"Cutoff Date" shall mean the Initial Cutoff Date or any
Subsequent Cutoff Date, as the context may require.
Eligible Receivable" shall mean, each Initial Receivable as
to which the representations and warranties of the Seller in Section 3.1(b)
shall be true and correct in all material respects as of the Initial Cutoff
Date, and (ii) each Subsequent Receivable as to which the representations
and warranties of the Seller in Section 3.1(b) shall be true and correct in
all material respects as of the applicable Subsequent Cutoff Date.
"First-Tier Initial Assignment" shall mean the document of
assignment in substantially the form attached to this Agreement as Exhibit
A-1.
"First-Tier Subsequent Assignment" shall mean any document
of assignment in substantially the form attached to this Agreement as
Exhibit A-2.
"Indenture" shall mean the Indenture, dated as of
__________, 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.
"Initial Cutoff Date" shall mean __________.
"Initial Receivable" shall mean, for purposes of this
Agreement, each motor vehicle retail installment sale contract described in
the Schedule of Initial Receivables attached hereto as Exhibit B and all
rights and obligations thereunder and any amendments, modifications or
supplements to such motor vehicle retail installment sale contract.
"Initial Receivables Purchase Price" shall mean $__________.
"Officer's Certificate" shall mean, for purposes of this
Agreement, a certificate signed by the chairman, the president, any
executive vice president, vice president or the treasurer of the Seller,
and delivered to the Purchaser.
"Prospectus" shall have the meaning assigned to such term in
the Underwriting Agreement.
"Purchaser" shall mean MMCA Auto Receivables Trust, a
Delaware business trust, and its successors and assigns.
"Receivable" shall mean, for purposes of this Agreement, any
Initial Receivable or Subsequent Receivable, as the context may require.
"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 __________, 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 Initial Receivables" shall mean, for purposes
of this Agreement, the list of Initial Receivables (which list may be in
the form of computer tape, microfiche or compact disk) annexed hereto as
Exhibit B.
"Schedule of Receivables" shall mean, for purposes of this
Agreement, the Schedule of Initial Receivables or any Schedule of
Subsequent Receivables, as the context may require.
"Schedule of Subsequent Receivables" shall mean, for
purposes of this Agreement, any list of Subsequent Receivables (which list
may be in the form of microfiche or compact disk) attached as Schedule A to
the related First-Tier Subsequent Assignment.
"Seller" shall mean Mitsubishi Motors Credit of America,
Inc., a Delaware corporation, and its successors and assigns.
"Subsequent Cutoff Date", with respect to any Subsequent
Receivable, shall have the meaning specified in the related First-Tier
Subsequent Assignment.
"Subsequent Receivable" shall mean, for purposes of this
Agreement, each motor vehicle retail installment sale contract described in
a Schedule of Subsequent Receivables attached as Schedule A to a First-Tier
Subsequent Assignment and all rights and obligations thereunder and any
amendments, modifications or supplements to such motor vehicle retail
installment sale contract.
"Subsequent Receivables Purchase Price" shall have the
meaning specified in Section 2.2(a).
"Subsequent Transfer Date" shall mean, with respect to any
Subsequent Receivable, the Business Day during the Pre-Funding and
Reinvestment Period on which the related First-Tier Subsequent Assignment
is executed and delivered by the Seller to the Purchaser pursuant to
Section 4.1(b)(iii)(A).
"Trust" shall mean the MMCA Auto Owner Trust 2000-1, a
Delaware business trust.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of __________, between the Purchaser, as depositor, and
Wilmington Trust Company, as Owner Trustee, as the same may from time to
time be amended, supplemented or otherwise modified and in effect.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated __________, by and between Salomon Smith Barney Inc., as
representative of the several underwriters specified therein, and the
Purchaser, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"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, in substantially the form attached to the
Sale and Servicing Agreement as Exhibit D.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
On the Closing Date and each Subsequent Transfer 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 set forth in the related Schedule of Receivables
and the other property relating thereto (as described below).
(a) Sale of Initial 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, pursuant to the First-Tier Initial Assignment, 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 Initial Receivables; (ii) with respect to
Initial Receivables that are Actuarial Receivables, monies due thereunder
on or after the Initial Cutoff Date (including Payaheads) and, with respect
to Initial Receivables that are Simple Interest Receivables, monies
received thereunder on or after the Initial Cutoff Date; (iii) the security
interests in Financed Vehicles granted by Obligors pursuant to the Initial
Receivables and any other interest of the Seller in such Financed Vehicles;
(iv) all rights to receive proceeds with respect to the Initial Receivables
from claims on any physical damage, theft, credit life or disability
insurance policies covering the related Financed Vehicles or related
Obligors; (v) all rights to receive proceeds with respect to the Initial
Receivables from recourse to Dealers thereon pursuant to the Dealer
Agreements; (vi) all of the Seller's rights to the Receivable Files that
relate to the Initial Receivables; (vii) all payments and proceeds with
respect to the Initial 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 an Initial Receivable that is a Final Payment Receivable),
guarantees and other collateral securing an Initial Receivable (other than
an Initial Receivable purchased by the Servicer or repurchased by the
Seller); (ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under the Initial Receivables
in effect as of the Initial 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.
It is the intention of the Seller and the Purchaser that the
transfer and assignment of the Initial Receivables and the other property
described in clauses (i) through (x) of this Section 2.1(a) shall
constitute a sale of the Initial Receivables and such other property from
the Seller to the Purchaser, conveying good title thereto free and clear of
any liens, and the Initial Receivables and such other property shall 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 or similar law.
However, in the event that the foregoing transfer and assignment is deemed
to be a pledge, the Seller hereby grants to the Purchaser a first priority
security interest in all of the Seller's right to and interest in the
Initial Receivables and other property described in the preceding paragraph
to secure a loan deemed to have been made by the Purchaser to the Seller in
an amount equal to the sum of the initial principal amount of the Notes
plus accrued interest thereon and the Initial Certificate Balance.
(b) Sale of Subsequent Receivables. Subject to
satisfaction of the conditions set forth in Section 4.1(b), the Seller
shall, pursuant to each First-Tier Subsequent Assignment, 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 Subsequent Receivables listed on Schedule A to the
related First-Tier Subsequent Assignment; (ii) with respect to the
Subsequent Receivables that are Actuarial Receivables, monies due
thereunder on or after the related Subsequent Cutoff Date (including
Payaheads) and, with respect to Subsequent Receivables that are Simple
Interest Receivables, monies received thereunder on or after the related
Subsequent Cutoff Date; (iii) the security interests in Financed Vehicles
granted by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles; (iv) all rights to
receive proceeds with respect to such Subsequent Receivables from claims on
any physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) all rights
to receive proceeds with respect to such Subsequent Receivables from
recourse to Dealers thereon pursuant to the related Dealer Agreements; (vi)
all of the Seller's rights to the Receivable Files that relate to such
Subsequent Receivables; (vii) all payments and proceeds with respect to
such Subsequent 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 Subsequent Receivable that is a Final Payment
Receivable), guarantees and other collateral securing a Subsequent
Receivable (other than a Subsequent Receivable purchased by the Servicer or
repurchased by the Seller); (ix) all rebates of premiums and other amounts
relating to insurance policies and other items financed under such
Subsequent Receivables in effect as of the related Subsequent 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.
It is the intention of the Seller and the Purchaser that each
transfer and assignment of Subsequent Receivables and the other property
described in clauses (i) through (x) of this Section 2.1(b) shall
constitute a sale of such Subsequent Receivables and other property from
the Seller to the Purchaser, conveying good title thereto free and clear of
any liens, and such Subsequent Receivables and other property shall 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 or similar law.
However, in the event that the foregoing transfer and assignment is deemed
to be a pledge, the Seller hereby grants to the Purchaser a first priority
security interest in all of the Seller's right to and interest in such
Subsequent Receivables and other property described in the preceding
paragraph to secure a loan deemed to have been made by the Purchaser to the
Seller in an amount equal to the sum of the initial principal amount of the
Notes plus accrued interest thereon and the Initial Certificate Balance.
SECTION 2.2. Payment of the Purchase Price
(a) Initial Receivables Purchase Price. In
consideration for the Initial Receivables, the other property described in
Section 2.1(a) and delivery of the Yield Supplement Agreement, the
Purchaser shall, on or prior to the Closing Date, pay to or upon the order
of the Seller the Initial Receivables Purchase Price. An amount equal to
$__________ of the Initial Receivables Purchase Price shall be paid to the
Seller in cash. The remainder of the Initial Receivables Purchase Price
shall be paid by crediting the Seller with a contribution to the capital of
the Purchaser. The portion of the Initial Receivables Purchase Price to be
paid in cash shall be by federal wire transfer (same day) funds.
(b) Subsequent Receivables Purchase Price. In
consideration for the Subsequent Receivables and the other property related
thereto described in Section 2.1(b) to be sold, transferred, assigned and
otherwise conveyed to the Purchaser on the related Subsequent Transfer
Date, the Purchaser shall, on or prior to such Subsequent Transfer Date,
pay to or upon the order of the Seller an amount (the related "Subsequent
Receivables Purchase Price") equal to the aggregate Principal Balance of
the Subsequent Receivables as of the related Subsequent Cutoff Date, plus
any premium or minus any discount agreed upon by the Seller and the
Purchaser. Any Subsequent Receivables Purchase Price shall be payable as
follows: (i) cash in the amount released to the Purchaser from the
Pre-Funding and Reinvestment Account pursuant to Section 4.8(a) of the Sale
and Servicing Agreement shall be paid to or upon the order of the Seller on
the related Subsequent Transfer Date by federal wire transfer (same day
funds) and the balance paid in cash as and when amounts are released to, or
otherwise realized by, the Purchaser from the Reserve Account and the
Negative Carry Account in accordance with the Sale and Servicing Agreement;
or (ii) as otherwise agreed by the Seller and the Purchaser.
SECTION 2.3. The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036 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 Initial
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 Trust
Property 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, the Closing Date and each Subsequent Transfer Date:
(a) Organization, etc. The Purchaser has been duly
established and is validly existing as a business trust 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 the 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 business trust 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, its Certificate of Trust or its amended and restated
trust agreement, 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 which do not (i)
assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seek any determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations under, or the
validity or 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, the Closing Date and each Subsequent
Transfer 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 on the Closing Date
and the property to be sold and assigned to the Purchaser hereunder
on each Subsequent Transfer Date and has duly authorized such sales
and assignments to the Purchaser by all necessary corporate action.
This Agreement and the First-Tier Initial Assignment has
been, and each First-Tier Subsequent Assignment has been or will be
on or before the related Subsequent Transfer Date, duly authorized,
executed and delivered by the Seller, and in each case 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 or (iii) seek any
determinations or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the
validity or 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 Closing Date in the case of the Initial Receivables and as of the
applicable Subsequent Transfer Date in the case of the Subsequent
Receivables except to the extent otherwise provided in the following
representations and warranties, but shall survive the sale, transfer, and
assignment of the Receivables to the Purchaser hereunder and the subsequent
assignment and transfer of the Receivables pursuant to the Sale and
Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable
(a) shall have been originated (x) 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) by
MMCA in connection with the refinancing of a motor vehicle retail
installment sale 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 MMCA, which
in turn shall have purchased such Receivable from such Dealer under
an existing Dealer Agreement with MMCA (unless such Receivable was
originated by MMCA in connection with a refinancing), and shall
have been validly assigned by such Dealer to MMCA in accordance
with its terms (unless such Receivable was originated by MMCA in
connection with a refinancing), which in turn shall have been
validly assigned by MMCA to the Seller in accordance with its
terms, (b) shall have created or shall create a valid, binding,
subsisting and enforceable first priority security interest in
favor of MMCA on the related Financed Vehicle, which security
interest has been validly assigned by MMCA to the Seller, which in
turn shall be validly assigned by the Seller to the Trust and by
the Trust to the Indenture Trustee, (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 monthly payments that fully
amortize the Amount Financed by maturity of the Receivable 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 and all accrued and unpaid interest thereon, (g) is a
retail installment sale contract, (h) is secured by a new or used
automobile or sports- utility vehicle, 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 related Schedule of Receivables shall be true and
correct in all material respects as of the opening of business on
the related 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 Trust and
its assigns (which compact disk or other listing is required to be
delivered as specified herein) 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 on the Closing
Date (with respect to each Initial Receivable) or the related
Subsequent Transfer Date (with respect to each Subsequent
Receivable) 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
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations
B 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 by
MMCA to the Seller, each Receivable shall be secured by a validly
perfected first priority security interest in the related Financed
Vehicle in favor of MMCA 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 such Financed Vehicle for the benefit of the
Seller and the Trust, respectively (subject to any statutory or
other lien arising by operation of law after the Closing Date (with
respect to each Initial Receivable) or the related Subsequent
Transfer Date (with respect to each Subsequent Receivable) 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 shall be
assignable by MMCA to the Seller and by the Seller to the Trust.
(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 2.2 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 Scheduled Payment, in each
case as of the related 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 or both 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 related Cutoff Date.
(xii) Insurance. Each Contract shall require the
related Obligor to maintain physical damage insurance (which
insurance shall not be force placed insurance) covering the
Financed Vehicle, in the amount determined by MMCA in accordance
with its customary procedures.
(xiii) Title. It is the intention of the Seller that
each transfer and assignment of the Receivables herein contemplated
constitute a sale of such Receivables from the Seller to the Trust
and that the beneficial interest in, and title to, such 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 Trust. Immediately prior
to each transfer and assignment of the Receivables herein
contemplated, the Seller had good and marketable title to such
Receivables free and clear of all Liens, encumbrances, security
interests, and rights of others and, immediately upon the transfer
thereof, the Trust shall have good and marketable title to such
Receivables, 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 or the Indenture or pursuant to transfers of
the Certificates 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 Trust a first priority perfected
security interest in the Receivables, and to give the Indenture
Trustee a first priority perfected security interest therein, shall
be made within ten (10) days of the Closing Date (with respect to
the Initial Receivables) or ten (10) days of the related Subsequent
Transfer Date (with respect to the Subsequent Receivables).
(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 related Cutoff Date of not less than $100.
(xix) No Bankrupt Obligors. No Receivable was due
from an Obligor who, as of the related 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 % of the
Initial Pool Balance, constituting approximately % of the total
number of the Initial Receivables, relate to new automobiles and
sports-utility vehicles, substantially all of which were
manufactured or distributed by MMCA. Approximately % of the Initial
Pool Balance, constituting approximately % of the total number of
Initial Receivables, relate to used automobiles and sports-utility
vehicle, substantially all of which were manufactured or
distributed by MMCA. Approximately % of the Initial Pool Balance,
constituting approximately % of the total number of Initial
Receivables, relate to program automobiles and sports-utility
vehicles, substantially all of which were manufactured or
distributed by MMCA. Approximately % of the Initial Pool Balance,
constituting approximately % of the total number of Initial
Receivables, relate to used automobiles and sports-utility
vehicles. (xxi) Origination. Each Receivable shall have an
origination date during or after [________].
(xxii) Maturity of Receivables. Each Receivable shall
have a remaining maturity, as of the related Cutoff Date, of not
more than [sixty (60)] months from the date the first Scheduled
Payment is due under the Receivable.
(xxiii) Weighted Average Maturity of Receivables. The
weighted average remaining maturity of the Initial Receivables as
of the Initial Cutoff Date shall be not more than [__] months. As
of the related Subsequent Cutoff Date, the weighted average
remaining maturity of any Subsequent Receivables that are Deferred
Payment Receivables for which the related Subsequent Transfer Date
occurs in September 2000 shall be not more than [__] months. As of
the related Subsequent Cutoff Date, the weighted average remaining
maturity of any Subsequent Receivables that are not Deferred
Payment Receivables for which the related Subsequent Transfer Date
occurs in September 2000 shall be not more than [__] months. As of
the related Subsequent Cutoff Date, the weighted average remaining
maturity of any Subsequent Receivables for which the related
Subsequent Transfer Date occurs in October 2000 shall be not more
than [__] months. As of the related Subsequent Cutoff Date, the
weighted average remaining maturity of any Subsequent Receivables
for which the related Subsequent Transfer Date occurs in November
2000 shall be not more than [__] months. As of the related
Subsequent Cutoff Date, the weighted average remaining maturity of
any Subsequent Receivables for which the related Subsequent
Transfer Date occurs in December 2000 shall be not more than [__]
months. As of the related Subsequent Cutoff Date, the weighted
average remaining maturity of any Subsequent Receivables for which
the related Subsequent Transfer Date occurs in January 2001 shall
be not more than [__] months. As of the related Subsequent Cutoff
Date, the weighted average remaining maturity of any Subsequent
Receivables for which the related Subsequent Transfer Date occurs
in February 2001 shall be not more than [__] months. As of the
related Subsequent Cutoff Date, the weighted average remaining
maturity of any Subsequent Receivables for which the related
Subsequent Transfer Date occurs in March 2001 shall be not more
than [__] months. As of the related Subsequent Cutoff Date, the
weighted average remaining maturity of any Subsequent Receivables
for which the related Subsequent Transfer Date occurs in April 2001
shall be not more than [__] months.
(xxiv) Annual Percentage Rate. Each Receivable shall
have an APR of at least 0% and not more than 30%.
(xxv) Scheduled Payments. No Receivable shall have a
payment of which more than 10% of such payment is more than thirty
(30) days overdue as of the related Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable
Files shall be kept at one or more of the locations listed in
Schedule B hereto.
(xxvii) 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 and the
Servicer 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.
(xxviii) Agreement. The representations and
warranties of the Seller in Section 6.1 are true and correct.
(xxix) Other Data. The tabular data and the numerical
data relating to the characteristics of the Initial Receivables
contained in the Prospectus (as defined in the Purchase Agreement)
are true and correct in all material respects.
(xxx) Last Scheduled Payments. The aggregate
principal balance of the Last Scheduled Payments of Final Payment
Receivables that are Initial Receivables, as a percentage of the
Initial Pool Balance as of the Initial Cutoff Date, shall be not
greater than [__%]. The aggregate principal balance of the Last
Scheduled Payments of Final Payment Receivables that
are Subsequent Receivables sold to the Purchaser on a Subsequent
Transfer Date, as of the related Subsequent Cutoff Date, as a
percentage of the aggregate principal balance of all of such
Subsequent Receivables as of such related Subsequent Cutoff Date,
shall be not greater than [__%].
(xxxi) Receivable Yield Supplement Amounts. An amount
equal to the sum of all projected Yield Supplement Amounts for all
future Payment Dates with respect to each Deferred Payment
Receivable, assuming that no prepayments are made on the Deferred
Payment Receivable, has been deposited to the Yield Supplement
Account on or prior to the Closing Date or the related Subsequent
Transfer Date, as applicable.
(xxxii) Prepaid Receivables. No Receivable (other
than a Deferred Payment Receivable) shall have been pre-paid by
more than six monthly payments as of the related Cutoff Date; .
(xxxiii) Limited Credit Experience. The aggregate
principal balance of the Subsequent Receivables sold to the
Purchaser on a Subsequent Transfer Date on which the Obligor has
limited credit experience, as of the related Subsequent Cutoff
Date, as a percentage of the aggregate principal balance of all of
such Subsequent Receivables as of such related Subsequent Cutoff
Date, shall be not greater than [__%].
(xxxiv) Deferred Payment Receivables. As of the
Initial Cutoff Date $__________total Principal Balance of Deferred
Payment Receivables included in the Initial Receivables had a
deferral period of between 13 and 15 months. As of the Initial
Cutoff Date $ _______total Principal Balance of Deferred Payment
Receivables included in the Initial Receivables had a deferral
period of between 10 and 12 months. As of the Initial Cutoff Date
$______ total Principal Balance of Deferred Payment Receivables
included in the Initial Receivables had a deferral period of
between 6 and 9 months. As of the Initial Cutoff Date
$__________total Principal Balance of Deferred Payment Receivables
had a deferral period of 90 days. All of the Subsequent Deferred
Payment Receivables are ZZZ Receivables. No Deferred Payment
Receivable is a Final Payment Receivable.
(xxxv) Reinvestment Receivables. No Reinvestment
Receivable is a Deferred Payment Receivable.
(xxxvi) Modified Receivables. The APR of any Modified
Receivable is equal to the APR of the related Deferred Payment
Receivable. The number of Scheduled Payments required to be made
under any Modified Receivable as of the effective date of the
modification of the terms of the related Deferred Payment
Receivable is not less than the number of Scheduled Payments which
would have remained due absent the modification after giving effect
to all pre-payments by the related Obligor on such Deferred Payment
Receivable.
ARTICLE IV
CONDITIONS
SECTION 4.1. Conditions to Obligations of the Purchaser.
(a) Initial Receivables. The obligation of the
Purchaser to purchase the Initial Receivables is subject to the
satisfaction of the following conditions:
(i) 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.
(ii) Computer Files Marked. The Seller shall, at its
own expense, on or prior to the Closing Date, indicate in its
computer files that the Initial Receivables have been sold to the
Purchaser pursuant to this Agreement and the First-Tier Initial
Assignment and deliver to the Purchaser the Schedule of Initial
Receivables certified by an officer of the Seller to be true,
correct and complete.
(iii) Documents to be delivered by the Seller at the
Closing.
(A) The First-Tier Initial Assignment. At the
Closing, the Seller will execute and deliver the First-Tier
Initial Assignment in substantially the form of Exhibit A-1
hereto.
(B) The Yield Supplement Agreement. At the
Closing, the Seller will execute and deliver the Yield
Supplement Agreement.
(C) 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 Initial
Receivables and the other property conveyed under Section
2.1(a) 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
the Initial 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.
(D) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) 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.
(b) Subsequent Receivables. The obligation of the
Purchaser to purchase the Subsequent Receivables to be conveyed to the
Purchaser on each Subsequent Transfer Date is subject to the satisfaction
of the following conditions:
(i) Representations and Warranties True. The
representations and warranties of the Seller under Section 3.2(a)
with respect to the Seller and Section 3.2(b) with respect to such
Subsequent Receivables shall be true and correct as of the date as
of which such representations and warranties are made, and the
Seller shall have performed all obligations to be performed by it
hereunder on or prior to the related Subsequent Transfer Date.
(ii) Computer Files Marked. The Seller shall, at its
own expense, on or prior to the related Subsequent Transfer Date,
indicate in its computer files that such Subsequent Receivables
have been sold to the Purchaser pursuant to this Agreement and the
related First- Tier Subsequent Assignment and deliver to the
Purchaser the related First-Tier Subsequent Assignment, including
the related Schedule of Subsequent Receivables certified by an
officer of the Seller to be true, correct and complete.
(iii) Documents to be delivered by the Seller on the
related Subsequent Transfer Date.
(A) The First-Tier Subsequent Assignment. On
the related Subsequent Transfer Date, the Seller will
execute and deliver the related First- Tier Subsequent
Assignment in substantially the form of Exhibit A-2 hereto.
(B) Evidence of UCC Filing. Within ten (10)
days of the related Subsequent Transfer 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 such Subsequent Receivables and the other property
conveyed under Section 2.1(b) 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 Subsequent 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
related Subsequent Transfer Date.
(C) Officer's Certificate. The Seller shall
have delivered to the Purchaser an Officer's Certificate
confirming the satisfaction of each condition precedent
specified in this Section 4.1(b) (substantially in the form
attached as Annex A to the form of First-Tier Subsequent
Assignment attached hereto as Exhibit A-2).
(D) Other Documents. Such other documents as
the Purchaser may reasonably request.
(iv) As of the related Subsequent Transfer Date: (A)
the Seller was not insolvent and will not become insolvent as a
result of the transfer of such Subsequent Receivables on the
related Subsequent Transfer Date, (B) the Seller did not intend to
incur or believe that it would incur debts that would be beyond the
Seller's ability to pay as such debts matured, (C) such transfer
was not made by the Seller with actual intent to hinder, delay or
defraud any Person and (D) the assets of the Seller did not
constitute unreasonably small capital to carry out its business as
conducted.
(v) No selection procedures believed by the Seller to
be adverse to the interests of the Purchaser, the Trust, the
Noteholders or the Certificateholders shall have been utilized in
selecting the Subsequent Receivables.
(vi) The addition of the Subsequent Receivables will
not result in a material adverse tax consequence to the Purchaser,
the Trust, the Noteholders or the Certificateholders.
(vii) All the conditions to the transfer of the
Subsequent Receivables from the Purchaser to the Trust specified in
Section 2.1(d) of the Sale and Servicing Agreement shall have been
satisfied.
SECTION 4.2. Conditions to Obligation of the Seller. The
obligation of the Seller to sell the Initial Receivables to the Purchaser
on the Closing Date and any Subsequent Receivables to the Purchaser on the
related Subsequent Transfer Date 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 or the related Subsequent Transfer Date, as
applicable, 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 or the related Subsequent Transfer Date, as applicable.
(b) Receivables Purchase Prices. (i) On or prior to
the Closing Date, the Purchaser shall deliver to the Seller the Receivables
Purchase Price, as provided in Section 2.2(a); and (ii) on or prior to each
Subsequent Transfer Date, the Purchaser shall have delivered to the Seller
the related Subsequent Receivables Purchase Price, as provided in Section
2.2(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 sports-utility vehicle 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. Costs and Expenses. The Seller agrees to pay
all reasonable costs and disbursements in connection with the perfection,
as against all third parties, of the Purchaser's right, title and interest
in, to and under the Receivables.
SECTION 5.4. Indemnification.
(a) The Seller shall defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting from
the failure of a Receivable to be originated in compliance with all
requirements of law and for any breach of any of the Seller's
representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting from
the use, ownership, or operation by the Seller or any Affiliate thereof of
a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold
harmless the Purchaser from and against any and all taxes, except for taxes
on the net income of the Purchaser, that may at any time be asserted
against the Purchaser with respect to the transactions contemplated herein
and in the Yield Supplement Agreement, including, without limitation, any
sales, gross receipts, general corporation, tangible personal property,
privilege, or license taxes and costs and expenses in defending against the
same.
(d) The Seller shall defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses,
losses, damages, claims and liabilities to the extent that such cost,
expense, loss, damage, claim or liability arose out of, or was imposed upon
the Purchaser through, the negligence, willful misfeasance, or bad faith of
the Seller in the performance of its duties under this Agreement or the
Yield Supplement Agreement, as the case may be, or by reason of reckless
disregard of the Seller's obligations and duties under the Agreement or the
Yield Supplement Agreement, as the case may be.
(e) The Seller shall defend, indemnify, and hold
harmless the Purchaser from and against all costs, expenses, losses,
damages, claims and liabilities arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as
Servicer under the Sale and Servicing Agreement, except to the extent that
such cost, expense, loss, damage, claim or liability shall be due to the
willful misfeasance, bad faith, or negligence (except for errors in
judgment) of the Purchaser.
These indemnity obligations shall be in addition to
any obligation that the Seller may otherwise have.
SECTION 5.5. Sale. The 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.
SECTION 5.6. Transfer of Subsequent Receivables. (a) Subject
to Section 2.1(b), the Seller agrees to sell to the Purchaser and the
Purchaser agrees to purchase from the Seller, Subsequent Deferred Payment
Receivables with an aggregate Principal Balance as of the related
Subsequent Cutoff Date approximately equal to $__________, subject only to
the availability of such Subsequent Receivables.
(b) Subject to Section 2.1(b), the Seller agrees to
sell to the Purchaser on each Payment Date during the Pre-Funding and
Reinvestment Period, and the Purchaser agrees to purchase from the Seller
during such period, Eligible Receivables having an aggregate Principal
Balance equal to the Required Reinvestment Amount for the preceding
Collection Period, subject only to the availability of such Receivables.
(c) On or prior to each Determination Date during the
Pre-Funding and Reinvestment Period, the Purchaser, or the Servicer on its
behalf, shall inform the Seller of a Negative Carry Account Shortfall with
respect to the following Payment Date. The Seller shall have the option,
but not the obligation, to pay to the Purchaser an amount equal to such
Negative Carry Account Shortfall by depositing an amount equal to the
Negative Carry Account Shortfall in the Pre-Funding and Reinvestment
Account on or prior to the second Business Day preceding the Payment Date
following the Determination Date.
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 Initial Receivables to the Trust on the
Closing Date and the Subsequent Receivables to the Trust on the related
Subsequent Transfer Dates 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 Initial Receivables set forth as Exhibit B hereto and will compare those
characteristics to the information with respect to the Initial 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 captions
"Delinquency Experience", "Net Credit Loss and Repossession Experience" and
"Contracts Providing for Balloon Payments: Loss Experience on Returned
Vehicles" 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
any 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 and addressed or delivered to it at its 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 or facsimile, shall be deemed given when mailed or when electronic
confirmation of the telecopy or facsimile is received.
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 each
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:
---------------------------------
Name:
Title:
MMCA AUTO RECEIVABLES TRUST,
as Purchaser
By:
---------------------------------
Name: Hideyuki Kitamura
Title: Secretary & Treasurer
EXHIBIT A-1
FORM OF FIRST-TIER INITIAL ASSIGNMENT
-------------------------------------
For value received, in accordance with the Purchase
Agreement, dated as of __________, between the undersigned and MMCA AUTO
RECEIVABLES TRUST (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 Initial Receivables; (ii) with respect to Initial Receivables that
are Actuarial Receivables, monies due thereunder on or after the Initial
Cutoff Date (including Payaheads) and, with respect to Initial Receivables
that are Simple Interest Receivables, monies received thereunder on or
after the Initial Cutoff Date; (iii) the security interests in Financed
Vehicles granted by Obligors pursuant to the Initial Receivables and any
other interest of the Seller in such Financed Vehicles; (iv) all rights to
receive proceeds with respect to the Initial Receivables from claims on any
physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) all rights
to receive proceeds with respect to the Initial Receivables from recourse
to Dealers thereon pursuant to the Dealer Agreements; (vi) all of the
Seller's rights to the Receivable Files that relate to the Initial
Receivables; (vii) all payments and proceeds with respect to the Initial
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 an Initial
Receivable that is a Final Payment Receivable), guarantees and other
collateral securing an Initial Receivable (other than an Initial Receivable
purchased by the Servicer or repurchased by the Seller); (ix) all rebates
of premiums and other amounts relating to insurance policies and other
items financed under the Initial Receivables in effect as of the Initial
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 Initial Receivables, the related Receivable Files,
any insurance policies or any agreement or instrument relating to any of
them.
This First-Tier Initial 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.
In the event that the foregoing sale, assignment, transfer
and conveyance is deemed to be a pledge, the undersigned hereby grants to
the Purchaser a first priority security interest in all of the
undersigned's right to and interest in the Initial Receivables and other
property described in clauses (i) through (x) above to secure a loan deemed
to have been made by the Purchaser to the undersigned in an amount equal to
the sum of the initial principal amount of the Notes plus accrued interest
thereon and the Initial Certificate Balance.
This First-Tier Initial Assignment shall be construed in
accordance with the laws of the State of New York and the obligations of
the undersigned under this First-Tier Initial Assignment shall be
determined in accordance with such laws.
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
First-Tier Initial Assignment to be duly executed as of __________.
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: _______________________
Name:
Title:
EXHIBIT A-2
FORM OF FIRST-TIER SUBSEQUENT ASSIGNMENT
----------------------------------------
For value received, in accordance with the Purchase
Agreement, dated as of __________, between the undersigned and MMCA AUTO
RECEIVABLES TRUST (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 Subsequent Receivables set forth in the Schedule of Subsequent
Receivables attached hereto as Schedule A; (ii) with respect to the
Subsequent Receivables that are Actuarial Receivables, monies due
thereunder on or after [________], [______] (the "Subsequent Cutoff Date")
(including Payaheads) and, with respect to Subsequent Receivables that are
Simple Interest Receivables, monies received thereunder on or after the
Subsequent Cutoff Date; (iii) the security interests in Financed Vehicles
granted by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles; (iv) all rights to
receive proceeds with respect to such Subsequent Receivables from claims on
any physical damage, theft, credit life or disability insurance policies
covering the related Financed Vehicles or related Obligors; (v) all rights
to receive proceeds with respect to such Subsequent Receivables from
recourse to Dealers thereon pursuant to Dealer Agreements; (vi) all of the
Seller's rights to the Receivable Files that relate to such Subsequent
Receivables; (vii) all payments and proceeds with respect to such
Subsequent 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 Subsequent Receivable that is a Final Payment Receivable),
guarantees and other collateral securing a Subsequent Receivable (other
than a Subsequent Receivable purchased by the Servicer or repurchased by
the Seller); (ix) all rebates of premiums and other amounts relating to
insurance policies and other items financed under such Subsequent
Receivables in effect as of the Subsequent 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 Subsequent
Receivables, the related Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This First-Tier Subsequent Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
undersigned contained in the Purchase Agreement (including the Officer's
Certificate of the Seller accompanying this First-Tier Subsequent
Assignment) and is to be governed by the Purchase Agreement.
The Seller hereby represents that as of the Subsequent
Cut-off Date the aggregate Principal Balance of the Subsequent Receivables
conveyed hereby was $[____________].
In the event that the foregoing sale, assignment, transfer
and conveyance is deemed to be a pledge, the undersigned hereby grants to
the Purchaser a first priority security interest in all of the
undersigned's right to and interest in the Subsequent Receivables and other
property described in clauses (i) through (x) above to secure a loan deemed
to have been made by the Purchaser to the undersigned in an amount equal to
the sum of the initial principal amount of the Notes plus accrued interest
thereon and the Initial Certificate Balance.
This First-Tier Subsequent Assignment shall be construed in
accordance with the laws of the State of New York and the obligations of
the undersigned under this First-Tier Subsequent Assignment shall be
determined in accordance with such laws.
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
First-Tier Subsequent Assignment to be duly executed as of [_________ __,
_____].
MITSUBISHI MOTORS CREDIT
OF AMERICA, INC.
By: _______________________
Name:
Title:
SCHEDULE A
----------
[SCHEDULE OF SUBSEQUENT RECEIVABLES PROVIDED TO THE
INDENTURE TRUSTEE ON THE SUBSEQUENT CLOSING DATE, WHICH
MAY BE ON COMPUTER TAPE, COMPACT DISK, OR MICROFICHE]
ANNEX A
OFFICERS' CERTIFICATE
The undersigned officer of Mitsubishi Motors Credit of
America, Inc., a Delaware corporation (the "Seller"), does hereby certify,
pursuant to Section 4.1(b)(iii)(C) of the Purchase Agreement, dated as of
__________ (as amended, supplemented or otherwise modified and in effect
from time to time, the "Purchase Agreement"), between the Seller and MMCA
Auto Receivables Trust, a Delaware business trust (the "Purchaser"), that
all of the conditions precedent to the transfer to the Purchaser of the
Subsequent Receivables listed on Schedule A to the First-Tier Subsequent
Assignment delivered herewith, and the other property and rights related to
such Subsequent Receivables as described in Section 2.1(b) of the Purchase
Agreement, have been satisfied on or prior to the related Subsequent
Transfer Date.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
certificate to be duly executed this [______] day of [_______________,
________].
By:_________________________________
Name:
Title:
EXHIBIT B
---------
[SCHEDULE OF INITIAL RECEIVABLES PROVIDED TO
THE INDENTURE TRUSTEE ON THE CLOSING DATE,
WHICH MAY BE ON COMPUTER TAPE,
COMPACT DISK, OR MICROFICHE]
SCHEDULE A
----------
Locations of Receivables Files
------------------------------
Corporate Office
----------------
6363 Katella Avenue
P.O. Box 6038
Cypress, CA 90630-5205
National Service Center
-----------------------
10805 Holder Street, Third Floor
P.O. Box 6043
Cypress, CA 90630-0040
