EXHIBIT 1.1
SWIFT MASTER AUTO RECEIVABLES TRUST SERIES 20[ ]-[ ]
[$[ - ] CLASS A FLOATING RATE ASSET BACKED NOTES, SERIES 20[ ]-[ ]]
[$[ - ] CLASS B FLOATING RATE ASSET BACKED NOTES, SERIES 20[ ]-[ ]]
[$[ - ] CLASS C FLOATING RATE ASSET BACKED NOTES, SERIES 20[ ]-[ ]]
[$[ - ] CLASS D FLOATING RATE ASSET BACKED NOTES, SERIES 20[ ]-[ ]]
WHOLESALE AUTO RECEIVABLES LLC
(DEPOSITOR)
GMAC LLC
(SPONSOR AND SERVICER)
UNDERWRITING AGREEMENT
[_____ __, 20__]
[Representative Underwriter]
[Address]
[Address]
[Representative Underwriter]
[Address]
[Address]
As Representatives of the
several Underwriters on Schedule 1
Ladies and Gentlemen:
1. Introductory. Wholesale Auto Receivables LLC, a Delaware limited
liability company (the "Depositor," which term with respect to matters prior to
October 20, 2006, shall refer to Wholesale Auto Receivables Corporation, which
was the predecessor to Wholesale Auto Receivables LLC), proposes to sell to the
several underwriters named in Schedule 1 hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, [(i) $[ - ] aggregate
principal balance of Class A Floating Rate Asset Backed Notes, Series 20[ ]-[ ]
(the "Class A Notes"), (ii) $[ - ] aggregate principal balance of Class B
Floating Rate Asset Backed Notes, Series 20[ ]-[ ] (the "Class B Notes"), (iii)
$[ - ] aggregate principal balance of Class C Floating Rate Asset Backed Notes,
Series 20[ ]-[ ] (the "Class C Notes") and (iv) $[ - ] aggregate principal
balance of Class D Floating Rate Asset Backed Notes, Series 20[ ]-[ ] (the
"Class D Notes"] and, together with the Class A Notes, the Class B Notes and the
Class C Notes, the "Offered Notes") of SWIFT Master Auto Receivables Trust (the
"Trust"). [The Trust will also issue to the Depositor, (w) $[ - ] aggregate
principal balance of Class E Floating Rate Asset Backed Notes, Series 20[ ]-[ ]
(the "Class E Notes" and, together with the Offered Notes, the
"Notes"),] (x) $[ - ] maximum aggregate principal balance of [Class A Floating
Rate Asset Backed Variable Funding Notes, Series 20[ ]-VFN[ ] (the "20[ ]-[ ]
Variable Funding Notes")], [(y) $[ - ] maximum aggregate principal balance Class
[-] Floating Rate Asset Backed Notes, Overconcentration Series 20[ ]-OC[ ] (the
"Overconcentration Notes")] and [(z) Asset Backed Certificates (the
"Certificates").] [The Depositor will sell the [20[ ]-[ ] Variable Funding
Notes] in one or more private placements and will initially retain [the
Certificates and] the Class E Notes.]
The assets of the Trust will include, among other things, a pool of
wholesale receivables (the "Receivables") generated from time to time in a
portfolio of revolving financing arrangements with dealers to finance
inventories of new and used motor vehicles and collections on the Receivables,
such Receivables to be transferred to the Trust by the Depositor and serviced by
GMAC LLC ("GMAC" or the "Servicer," and the term "GMAC," with respect to matters
prior to July 20, 2006, shall refer to General Motors Acceptance Corporation,
which was the predecessor of GMAC LLC). The Offered Notes will be issued
pursuant to an indenture supplement, to be dated as of the Closing Date (as
defined below) (as amended and supplemented from time to time, the "Indenture
Supplement"), between the Trust and [The Bank of New York Trust Company, N.A.,]
as indenture trustee (the "Indenture Trustee"), to the indenture, [to be dated
as of the Closing Date][dated as of _____ __, 20[ ]], between the Trust and the
Indenture Trustee (the "Indenture"). The Trust [was] [will be] formed pursuant
to a trust agreement, [dated] [_____ __, 2007,] [to be dated on or about the
Closing Date] (as amended and supplemented from time to time, the "Trust
Agreement"), between the Depositor and [HSBC Bank USA, National Association,] as
owner trustee, acting thereunder not in its individual capacity but solely as
trustee of the Trust (the "Owner Trustee"). GMAC will serve as the initial
custodian of the Receivable Files (as defined in a custodian agreement, [to be
dated as of the Closing Date,] [dated as of _____ __, 2007,] between the
Servicer and the Depositor (as amended and supplemented from time to time, the
"Custodian Agreement")), pursuant to the Custodian Agreement, and a trust sale
and servicing agreement, [to be dated as of the Closing Date] [dated as of _____
__, 2007] (as amended and supplemented from time to time, the "Trust Sale and
Servicing Agreement"), among the Depositor, the Servicer and the Trust.
Any reference herein to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in Section 15 hereof.
Capitalized terms not otherwise defined in this Agreement shall have the
meanings assigned to them in Part I of Appendix A to the Trust Sale and
Servicing Agreement.
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2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, the several underwriters named in
Schedule 1 (the "Underwriters") that:
(a) The Depositor meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(No. 333-141483), including a prospectus, on Form S-3 pursuant to Rule 415
under the Act on March 22, 2007, as amended by Amendment No. 1 on May 31,
2007, for the registration under the Act of asset-backed securities
(issuable in series and classes thereof), including the Offered Notes,
which registration statement has become effective, and a copy of which, as
amended to the date hereof, has heretofore been delivered to the
Underwriters. The Depositor has filed or will file with the Commission,
pursuant to Rule 424(b), one or more Preliminary Prospectuses and has
delivered the Final Preliminary Prospectus to the Underwriters prior to the
Applicable Time for delivery to prospective investors. The Depositor will
file with the Commission pursuant to Rule 424(b) a Final Prospectus
relating to the Offered Notes and the method of distribution thereof.
(b) On the Effective Date, the Registration Statement complied, and
when the Final Prospectus is first filed in accordance with Rule 424(b),
the Final Prospectus will comply, in all material respects, with the
applicable requirements of the Act; on the Effective Date, the Registration
Statement did not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus will not include any 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; provided, however, that the Depositor makes no representations
or warranties as to [(i)] the information contained in or omitted from the
Registration Statement, the Disclosure Package or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Depositor by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information so furnished by or on
behalf of any Underwriter consists of the information described as such in
Section 7 hereof (the "Underwriter Information") [and (ii) the information
under the caption "The Transfer and Servicing Agreements--Basis
Swaps--Basis Swap Counterparty" in the Disclosure Package and the Final
Prospectus (the "Swap Information")]. As of the Closing Date, the
representations and warranties of the Depositor in a pooling and servicing
agreement, [dated as of ____ __, 2007] [to be dated as of the Closing Date]
(as amended and supplemented from time to time, the "Pooling and Servicing
Agreement"), between GMAC and the Depositor, the Trust Sale and Servicing
Agreement and the Trust Agreement will be true and correct in all material
respects.
(c) As of the Applicable Time, the Disclosure Package did not include
any 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; provided,
however, that the Depositor makes no representations or
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warranties as to [(i)] the information contained in or omitted from the
Disclosure Package in reliance upon and in conformity with the Underwriter
Information [or (ii) relating to the Swap Information].
(d) At the earliest time after the filing of the Registration
Statement that the Depositor or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Offered Notes, the
Depositor was not an "ineligible issuer," as defined in Rule 405.
(e) Each Issuer Free Writing Prospectus, as of its issue date, does
not and will not include any information that conflicts or will conflict
with the information then contained in the Registration Statement. If at
any time following issuance of an Issuer Free Writing Prospectus there
occurs an event or development as a result of which such Issuer Free
Writing Prospectus would conflict with the information then contained in
the Registration Statement or would include an untrue statement of a
material fact or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, (i) the Depositor has or will promptly
notify the Underwriters and (ii) the Depositor has or will promptly amend
or supplement such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission; provided, however, that the
Depositor makes no representations or warranties as to the information
contained in or omitted from any Issuer Free Writing Prospectus [(1)] in
reliance upon and in conformity with the Underwriter Information [or (2)
relating to the Swap Information].
(f) This Agreement has been duly authorized, executed and delivered by
the Depositor.
3. Purchase, Sale and Delivery of the Offered Notes. Each Underwriter
executing this Agreement on its own behalf and as a Representative of the
several Underwriters (the "Representatives") hereby represents and warrants to
the Depositor that it has been authorized by the other Underwriters to execute
this Agreement on their behalf. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Depositor agrees to sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Depositor,
the respective principal balance of each Class of Offered Notes set forth
opposite the name of such Underwriter on Schedule 1. Each Class of Offered Notes
is to be purchased at the respective purchase price set forth on Schedule 2,
plus accrued interest to the extent set forth on such Schedule 2.
The Depositor will deliver the Offered Notes to the Representatives for the
account of the Underwriters against payment of the purchase price in immediately
available funds, at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on ____ __, 20[ ] at [9:00 a.m.] (Chicago time), or at
such other time and place not later than seven full business days thereafter as
the Representatives and the Depositor determine, such time being herein referred
to as the "Closing Date." The Offered Notes so to be delivered will be initially
represented by notes registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Offered Notes will be represented by book
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entries on the records of DTC and participating members thereof. Definitive
notes will be available only under limited circumstances.
4. Offering by Underwriters; Representations and Covenants of the
Underwriters.
(a) It is understood that the Underwriters propose to offer the
Offered Notes for sale to the public (which may include selected dealers)
as set forth in the Final Prospectus. Each Underwriter agrees that all such
offers and sales by such Underwriter will be made in compliance with all
applicable laws and regulations, including all laws and regulations with
respect to pricing of the Offered Notes and disclosure of underwriting
commissions from the Depositor or any other person.
(b) The Underwriters have not and will not provide any ABS
Informational and Computational Material to prospective investors. For the
purposes hereof, "ABS Informational and Computational Material" as used
herein shall have the meanings given such term in Item 1101(a) of
Regulation AB under the Exchange Act.
(c) Each Underwriter represents that it has delivered the Final
Preliminary Prospectus [and the Additional Information Statements] to
prospective investors prior to the Applicable Time.
(d) Each Underwriter represents, as of the Closing Date, that other
than the Base Prospectus, any Preliminary Prospectus, the Final Preliminary
Prospectus and any Free Writing Prospectus identified on Schedule 3, it did
not provide any prospective investors with any "written communication" (as
defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Offered Notes, other than those
identified on Schedule 4; provided, however, that, notwithstanding the
foregoing, the Depositor agrees that the Underwriters may disseminate
without the approval of the Depositor one or more "written communications"
(as defined in Rule 405 under the Act) in the form of information on
Bloomberg to prospective investors relating solely to the status of
allocations and subscriptions (the "Bloomberg Information"), which the
Underwriters hereby represent is not required to be filed with the
Commission pursuant to the safe harbor provided by Rule 134 or because such
information is a Free Writing Prospectus that is not an Issuer Free Writing
Prospectus (each such written communication, an "Underwriter Free Writing
Prospectus"). As used herein, the term "Issuer Information" means any
information of the type specified in clauses (1) - (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. As used herein, the term "Underwriter
Derived Information" shall refer to information of the type described in
clause (5) of footnote 271 of Commission Release No. 33-8591 (Securities
Offering Reform) when prepared by any Underwriter, including traditional
computational and analytical materials prepared by the Underwriter.
(e) Each Underwriter severally represents, warrants and agrees with
the Depositor that:
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(i) each Underwriter Free Writing Prospectus prepared by it will
not, as of the date such Underwriter Free Writing Prospectus was
conveyed or delivered to any prospective purchaser of Offered Notes,
when taken as a whole together with the Disclosure Package, include
any untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that no Underwriter makes such representation, warranty or
agreement to the extent such untrue statements or omissions were made
in reliance upon and in conformity with information contained in any
Preliminary Prospectus or the Final Prospectus or any written
information furnished to the related Underwriter by the Depositor or
GMAC expressly for use in such Underwriter Free Writing Prospectus,
which information was not corrected by information subsequently
provided by the Depositor or GMAC to the related Underwriter prior to
the time of use of such Underwriter Free Writing Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it
shall contain a legend substantially in the form of and in compliance
with Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any
applicable requirements for "free writing prospectuses" under the Act;
(iii) none of the information in any Underwriter Free Writing
Prospectus will conflict with the information then contained in the
Registration Statement or any prospectus or prospectus supplement that
is a part thereof; and
(iv) such Underwriter has in place, and covenants that it shall
maintain, internal controls and procedures that it reasonably believes
to be sufficient to ensure compliance in all material respects with
all applicable legal requirements of the Act and the rules and
regulations thereunder with respect to the generation and use of
Underwriter Free Writing Prospectuses in connection with the offering
of the Offered Notes.
(f) Each Underwriter that uses the Internet or other electronic means
to offer or sell the Offered Notes severally represents that it has in
place, and covenants that it shall maintain, internal controls and
procedures which it reasonably believes to be sufficient to ensure
compliance in all material respects with all applicable legal requirements
under the Act and applicable procedures, if any, worked out with the staff
of the Commission relating to the use of the Internet or relating to
computerized or electronic means of delivery to prospective investors of
the Prospectus and any related "road-show" materials, in each case in
connection with the offering of the Offered Notes.
5. Covenants of the Depositor. The Depositor covenants and agrees with the
Underwriters that:
(a) The Depositor has filed or shall file each Preliminary Prospectus
pursuant to and in accordance with Rule 424(b) not later than the second
business day following the date it is first used.
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(b) The Depositor shall prepare and file the Final Prospectus pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the date it is first used.
(c) The Depositor shall advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement, any Preliminary
Prospectus or the Final Prospectus and shall consult with them and their
counsel with respect to any comments they may have on any such proposed
amendment or supplement; provided, however, that no such advice or
consultation shall be necessary for Exchange Act reports filed by the
Depositor in the ordinary course that contain opinions, the Basic Documents
or related agreements, monthly distribution reports, annual reports and
suspension of duty to report notices.
(d) If, at any time when a prospectus relating to the Offered Notes is
(or but for the exemption in Rule 172 would be 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 Final Preliminary Prospectus or the
Final Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
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 Registration Statement or supplement the Final Prospectus to
comply with the Act, the Depositor promptly shall (1) notify the
Representatives of such event and (2) prepare and file with the Commission,
subject to paragraph (c) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance.
(e) The Depositor represents and agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter, severally and
not jointly, represents and agrees with the Depositor that, unless it
obtains the prior consent of the Depositor, it has not made and will not
make any offer relating to the Offered Notes that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a Free
Writing Prospectus; provided, however, that the prior consent of the
parties hereto shall be deemed to have been given with respect to the Free
Writing Prospectuses included in Schedule 3 and Schedule 4 hereto and the
Bloomberg Information.
(f) The Depositor shall take such action in order to exempt the
Offered Notes from the qualification for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Representatives
shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection with such
exemption and in connection with the determination of the legality of the
Offered Notes for purchase under the laws of such jurisdictions as the
Representatives may designate. Thereafter, until all of the Offered Notes
have been retired, the Depositor shall arrange for the filing and making
of, and shall pay all fees applicable to, such statements and reports and
renewals of registration necessary in order to continue to exempt the
Offered Notes for secondary market transactions in the various
jurisdictions in which the Offered Notes were originally exempted for sale.
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(g) For a period from the date of this Agreement until the retirement
of the Offered Notes, or until such time as no Underwriter shall continue
to maintain a secondary market in the Offered Notes, whichever first
occurs, the Depositor will deliver or cause to be delivered to the
Representatives, upon request, the Servicer's annual assessment of
compliance and the Report of Assessment of Compliance with Servicing
Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant
to the Trust Sale and Servicing Agreement, promptly after the same are
furnished to the Indenture Trustee and the Owner Trustee.
(h) So long as any of the Offered Notes are outstanding, the Depositor
shall furnish to the Representatives (i) as soon as available, a copy of
each report of the Depositor filed with the Commission under the Exchange
Act or mailed to the holders of the Offered Notes, and (ii) from time to
time, such other information concerning the Depositor as the
Representatives may reasonably request.
(i) If the transactions contemplated by this Agreement are not
consummated or this Agreement is terminated pursuant to Section 9 below,
the Depositor shall pay or cause to be paid all expenses incident to the
performance of the Depositor's obligations under this Agreement, and will
pay or cause to be paid or will reimburse the Underwriters for any
reasonable expenses (including reasonable fees and disbursements of outside
counsel) incurred by them in connection with (i) qualification or exemption
of the Offered Notes for offer and sale and the determination of their
legality for purchase under the laws of such jurisdictions as the
Representatives have reasonably requested pursuant to Section 5(f) and the
printing of memoranda relating thereto, (ii) any fees charged by investment
rating agencies for the rating of the Offered Notes, and (iii) expenses
incurred in printing, if applicable, and distributing any Preliminary
Prospectus and the Final Prospectus (including any amendments and
supplements thereto) to the Underwriters, if any.
(j) To the extent, if any, that any rating necessary to satisfy the
condition set forth in Section 6(k) is conditioned upon the furnishing of
documents or the taking of other actions by the Depositor on or after the
Closing Date, the Depositor shall furnish such documents and take such
other actions.
(k) If, during the period after the Closing Date in which a prospectus
relating to the Offered Notes is required to be delivered under the Act,
the Depositor receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and
sale of the Offered Notes is in effect, the Depositor shall advise the
Representatives of the issuance of such stop order.
(l) The Depositor acknowledges and agrees that each Underwriter is
acting solely in the capacity of an arm's length contractual counterparty
to the Depositor with respect to the offering of securities contemplated
hereby (including in connection with determining the terms of the offering)
and not as a fiduciary to, or an agent of, the Depositor or any other
person. Additionally, each Underwriter is not advising the Depositor or any
other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Depositor shall consult with its own
advisors concerning
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such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and
the Underwriters shall have no responsibility or liability to the Depositor
with respect thereto. Any review by the Underwriters of the Depositor, the
transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Depositor.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters hereunder are subject to the following conditions:
(a) The Representatives shall have received a letter, dated as of the
date hereof, with respect to the Final Preliminary Prospectus, and a
letter, dated as of the Closing Date, of Deloitte & Touche LLP in form and
substance reasonably acceptable to the Representatives.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission and there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Depositor and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement and the Final Prospectus; and
the Representatives shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of
the Depositor, to the foregoing effect. The officer making such certificate
may rely on the best of his/her knowledge as to proceedings pending or
threatened.
(c) The Representatives shall have received on the Closing Date an
opinion of the General Counsel of the Depositor, dated the Closing Date,
substantially to the effect set forth in Exhibit A.
(d) The Representatives shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Depositor, dated
the Closing Date, substantially to the effect set forth in Exhibit B.
(e) The Representatives shall have received a letter with respect to
the Disclosure Package as of the date hereof and with respect to the Final
Prospectus, as of the date thereof and as of the Closing Date, of ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP, special counsel to the Depositor.
(f) The Representatives shall have received a letter with respect to
the Disclosure Package as of the date hereof and with respect to the Final
Prospectus, as of the date thereof and as of the Closing Date, of Mayer,
Brown, ▇▇▇▇ & Maw LLP, counsel for the Underwriters.
(g) The Representatives shall have received a certificate signed by an
executive officer or officers of the Depositor, dated the Closing Date, in
which such officer or officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Depositor in this Agreement, the Trust Sale and the
Servicing Agreement, the Trust Agreement, and the Pooling and Servicing
9
Agreement, are true and correct and that the Depositor has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or thereunder at or before the Closing Date.
(h) On or prior to the Closing Date, the Depositor shall not offer,
sell, contract to sell or otherwise dispose of any additional similar
asset-backed securities (which shall not affect the Depositor's right to
offer, sell, contract to sell or otherwise dispose of the [Certificates,
the Class D Notes, the Class E Notes, any Variable Funding Notes and any
Overconcentration Series of Notes]) without the Representatives' prior
written consent.
(i) The Representatives shall have received on the Closing Date an
opinion or opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the
Depositor, dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, (i) with respect to the
characterization of the transfer of the Receivables by GMAC to the
Depositor as a sale or contribution and (ii) concluding that neither the
issue and delivery of the Offered Notes, nor the consummation of the
transactions contemplated by the Trust Sale and Servicing Agreement, the
Pooling and Servicing Agreement, the Trust Agreement, the Custodian
Agreement or the Administration Agreement, [dated as of ____ __, 2007] [to
be dated as of the Closing Date], among GMAC, the Owner Trustee and the
Indenture Trustee, nor the fulfillment of the terms thereof, conflicts
with, or results in any breach of any terms and provisions of, or
constitutes (with or without notice or lapse of time) a default under, or
results in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Depositor or GMAC pursuant to the terms of, any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Depositor or GMAC is subject.
(j) [The Class A Notes are rated in the highest rating category for
long-term (i.e., "AAA") obligations by at least one nationally recognized
rating agency. The Class B Notes are rated at least in the ["A"] category
for long-term obligations or its equivalent by at least one nationally
recognized rating agency. The Class C Notes are rated at least in the
["BBB"] category for long-term obligations or its equivalent by at least
one nationally recognized rating agency.] [The Class D Notes are rated at
least in the ["BBB"] category for long-term obligations or its equivalent
by at least one nationally recognized rating agency.]
(k) On the Closing Date, the aggregate principal balance of [the Class
D Notes and the Class E Notes] set forth in the Final Prospectus shall have
been issued by the Trust.
The Depositor will furnish the Representatives with conformed copies of
such further opinions, certificates, letters and documents as the
Representatives reasonably request.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls an Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all
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losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Disclosure Package or the Final Prospectus (if used within
the period set forth in Section 5(d) hereof and as amended or supplemented
if the Depositor shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
the Underwriter Information.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Depositor, its directors, its officers who sign the
Registration Statement and any person controlling the Depositor to the same
extent as the foregoing indemnity from the Depositor to such Underwriter in
Section 7(a), but only with reference to the Underwriter Information. The
Depositor acknowledges that (a) the statements made by the Underwriters
under the caption "Underwriting" in the Disclosure Package and the Final
Prospectus with respect to the following: (i) the legal names of the
Underwriters in the table titled "Aggregate Principal Amount to be
Purchased;" (ii) the table relating to selling concessions and reallowances
and the paragraph of text preceding such table; and (iii) to the extent the
fourth to last sentence under the caption "Underwriting" applies to the
Underwriters, the representation of the Underwriters relating to purchase
transactions, over-allotment transactions, stabilizing transactions,
syndicate covering transactions and penalty bids; and (b) each of the
Underwriters' "street names" on the front cover and the back cover, if any,
of the Final Preliminary Prospectus and the Final Prospectus, constitute
the "Underwriter Information."
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Depositor, its directors, its officers who sign the
Registration Statement and any person controlling the Depositor to the same
extent as the foregoing indemnity from the Depositor to such Underwriter in
Section 7(a), but only with reference to information contained in any
Underwriter Free Writing Prospectus (as defined in Section 4(d)); provided,
however, that no Underwriter shall be liable to the extent that any such
loss, claim, damage or liability arises out of or is based upon any
statement in or omission from any Underwriter Free Writing Prospectus in
reliance upon and in conformity with (A) any written information furnished
to the related Underwriter by the Depositor or GMAC expressly for use
therein, which information was not corrected by information subsequently
provided by the Depositor or GMAC to the related Underwriter prior to the
time of use of such Underwriter Free Writing Prospectus, (B) information
accurately extracted from any Preliminary Prospectus or the Final
Prospectus, which information was not corrected by information subsequently
provided by the Depositor or GMAC to the related Underwriter prior to the
time of use of such Underwriter Free Writing Prospectus or (C) Issuer
Information (as defined in Section 4(d)) (except for information regarding
the status of the subscriptions for the Offered Notes).
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant
11
to any of the three immediately preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Representatives in the case
of parties indemnified pursuant to the third preceding paragraph and by the
Depositor in the case of parties indemnified pursuant to the second or
first preceding paragraphs. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is a party and
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
admission of, fault, culpability or a failure to act by or on behalf of the
indemnified party.
If the indemnification provided for in this Section 7 is unavailable to an
indemnified party under the second, third or fourth preceding paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect not only the relative benefits but
also the relative fault of the Depositor on the one hand and of 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 fault of the Depositor on the one hand
and of the Underwriters on the other 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 Depositor or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
12
The Depositor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Notes were offered for sale exceeds the amount of any
damages which the Underwriters have 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 Section 7 to indemnify and contribute are several in proportion to their
respective underwriting obligations and not joint.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Depositor in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by an Underwriter or on behalf of
the Underwriters or any person controlling the Underwriters or by or on behalf
of the Depositor, its directors or officers or any person controlling the
Depositor, and (iii) acceptance of and payment for any of the Offered Notes.
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Offered Notes agreed to be purchased by such
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
Representatives may make arrangements satisfactory to the Depositor in its sole
discretion for the purchase of such Offered Notes by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the remaining Underwriters shall be obligated severally to take up and pay
for (in the respective proportions which the amount of Offered Notes set forth
opposite their names in Schedule 1 bears to the aggregate amount of Offered
Notes set forth opposite the names of all the remaining Underwriters) the
Offered Notes which the defaulting Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Offered Notes
which the defaulting Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of all of the Offered Notes set forth in Schedule 1, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Notes and if such
nondefaulting Underwriters do not purchase all the Offered Notes, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Trust or
the Depositor (other than under Section 7). In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the non-defaulting Underwriters
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its
13
liability, if any, to the Depositor and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination.
(a) If this Agreement shall be terminated by the Representatives
because of any failure or refusal on the part of the Depositor to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Depositor shall be unable to perform its obligations under this
Agreement, the Depositor will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the reasonable fees and disbursements of their
outside counsel) reasonably incurred by the Underwriters in connection with the
offering of the Offered Notes.
(b) The Representatives may terminate this Agreement (upon
consultation with the Depositor) at any time prior to the Closing Date if, in
the opinion of the Representatives, there shall have been such a change in
national or international financial, political or economic conditions which in
their view will have a materially adverse effect on the success of the offering
and distribution of or a secondary market for the Offered Notes in the United
States. After consultation with the Depositor, the parties to this Agreement
shall be released and discharged from their respective obligations under this
Agreement without liability on the part of either the Underwriters or on the
part of the Depositor (other than under Section 7), and, notwithstanding Section
9(a), each party will pay its own expenses.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or its officers and of the 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
the Underwriters or the Depositor or any of their officers or directors or any
controlling persons, and will survive delivery of and payment for the Offered
Notes.
11. Notices. All communications hereunder will be in writing, and, if sent
to the Representatives, will be mailed, delivered or sent by facsimile
transmission and confirmed to the Representatives at [Representative],
[Address], [Address]; Attention: [____], facsimile: [(___) ___-____];
[Representative], [Address], [Address], Attention: [____], facsimile: [(___)
___-____]; or if sent to the Depositor, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; [Attention: Director--U.S. Securitization,
facsimile (▇▇▇) ▇▇▇-▇▇▇▇].
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. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
ITS CONFLICT OF LAWS PROVISIONS (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW),
14
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
15. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
["Additional Information Statements" means the Additional Information
Statement, dated ____ __, 20[ ], and the Additional Information Statement
dated ____ __, 20[ ], with respect to the Offered Notes.]
"Applicable Time" means [_:__] [a][p]m ([Eastern time]) on the date
that this Agreement is executed and delivered by the parties hereto.
"Base Prospectus" means the prospectus, dated ____ __, 20[ ],
contained in the Registration Statement at the Effective Date.
"Commission" means the Securities and Exchange Commission.
"Disclosure Package" means the following, taken as a whole (i) the
Base Prospectus, as amended and supplemented to the Applicable Time, (ii)
the Final Preliminary Prospectus, (iii) the Issuer Free Writing
Prospectuses, if any, identified on Schedule 3 hereto and (iv) any other
Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package.
"Effective Date" means each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Final Preliminary Prospectus" means the Preliminary Prospectus, dated
as of ____ __, 20[ ].
"Final Prospectus" means the final prospectus supplement relating to
the Offered Notes that was first filed pursuant to Rule 424(b) after the
Applicable Time, together with the Base Prospectus, and otherwise satisfies
Section 10(a) of the Act. For the purposes of this definition, the Final
Prospectus shall include the "Static Pool Data" set forth in Appendix A
thereto.
"Free Writing Prospectus" means a free writing prospectus, as defined
in Rule 405.
"Issuer Free Writing Prospectus" means an issuer free writing
prospectus, as defined in Rule 433, relating to the Offered Notes that (i)
is required to be filed with the Commission by the Depositor or (ii) is
exempt from filing pursuant to Rule 433(d)(5)(i)
15
because it contains a description of the Offered Notes or of the offering
that does not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed,
in the form retained in the Depositor's records pursuant to Rule 433(g).
"Preliminary Prospectus" means any preliminary prospectus supplement
listed on Schedule 5 or filed with the Commission pursuant to Rule 424(b)
to the Base Prospectus that describes the Offered Notes and the offering
thereof and is used prior to filing of the Final Prospectus, together with
the Base Prospectus. For purposes of this definition, information contained
in a form of prospectus or preliminary prospectus supplement that is deemed
to be a part of the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Preliminary Prospectus only as of the
actual time that form of prospectus or prospectus supplement is filed with
the Commission pursuant to Rule 424(b) and shall include the "Static Pool
Data" set forth in Appendix A thereto.
"Registration Statement" means the registration statement referred to
in Section 2(a) above, including exhibits incorporated by reference therein
and any prospectus or prospectus supplement relating to the Offered Notes
that is filed with the Commission pursuant to Rule 424 and deemed part of
such registration statement pursuant to Rule 430B, as amended at the
Applicable Time (or, if not effective at the Applicable Time, in the form
in which it shall become effective), and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the
case may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 134," "Rule 164," "Rule 172," "Rule 405," "Rule 415," "Rule
424," "Rule 430A," "Rule 430B," "Rule 433" and "Rule 462" refer to such
rules under the Act.
"Rule 462(b) Registration Statement" means a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 2(a)
hereof.
16
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Depositor and you in accordance with its terms.
Very truly yours,
WHOLESALE AUTO RECEIVABLES LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written by
the undersigned acting on their own
behalf and as a Representative of the
several Underwriters.
[REPRESENTATIVE]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[REPRESENTATIVE]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Underwritng Agreement 20[_]-[_]
S-1
SCHEDULE 1
UNDERWRITERS CLASS A NOTES CLASS B NOTES CLASS C NOTES
------------ ------------- ------------- -------------
[-] $[-] $[-] $[-]
[-] $[-] $[-] $[-]
[-] $[-]
[-] $[-]
[-] $[-]
[-] $[-]
[-] $[-]
---- ---- ----
Total $[-] $[-] $[-]
SCHEDULE 2
Security Interest Rate Purchase Price
-------- ------------------------ --------------
Class A Notes [One Month LIBOR + [-]%] [-]%
Class B Notes [One Month LIBOR + [-]%] [-]%
Class C Notes [One Month LIBOR + [-]%] [-]%
[Class D Notes [One Month LIBOR + [-]%] [-]%]
SCHEDULE 3
Free Writing Prospectuses
[(1) Additional Information Statement, dated ____ __, 20[ ], attached hereto.]
[(2) Additional Information Statement, dated ____ __, 20[ ], attached hereto.]
SCHEDULE 4
"Written Communication" (as defined in Rule 405 under the Act)
Provided to Prospective Investors and Not Identified in Section 4(d)
[None.]
SCHEDULE 5
Preliminary Prospectuses
(1) Final Preliminary Prospectus, as defined herein.
(2) Preliminary Prospectus, dated as of ____ __, 20[ ], as defined herein.
EXHIBIT A
[Opinion of General Counsel of Depositor]
EXHIBIT B
[Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP]