EXHIBIT 1.1
-----------
Asset-Backed Notes
ML ASSET BACKED CORPORATION
Depositor
UNDERWRITING AGREEMENT
----------------------
June 8, 2007
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Four World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
ML Asset Backed Corporation, a Delaware corporation (the "Depositor"),
proposes, from time to time, to form one or more special purpose entities (each,
a "Trust") which will issue up to $3,000,000,000 aggregate principal amount of
securities entitled "Asset Backed Notes" (the "Notes", which may be referred to
herein as the "Offered Securities") in one or more series (each, a "Series")
under the terms and conditions contained herein and in the applicable Terms
Agreement (as hereinafter defined). The property of each Trust may consist
primarily of, among other things, (i) a pool of motor vehicle installment sale
contracts and loans (the "Loans") for the purchase of new and used automobiles,
minivans, sport utility vehicles, light-duty trucks, motorcycles or commercial
vehicles financed thereby (the "Financed Vehicles"), (ii) certain monies due
under the Loans, (iii) security interests in the Financed Vehicles, (iv) amounts
on deposit in certain accounts, (v) certain rights under a sale and servicing
agreement (the "Sale and Servicing Agreement"), among the Trust, the Depositor,
U.S. Bank National Association, as master servicer (in such capacity, the
"Servicer") and HSBC Bank USA, National Association, as indenture trustee (the
"Indenture Trustee"), pursuant to which the Loans and other property of the
Depositor will be sold to the Trust and the Loans will be serviced by the
Servicer and (vi) all proceeds of the foregoing.
Each offering of Offered Securities will be made through ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and other underwriters
(collectively, the "Underwriters") for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as
representative (the "Representative"). Whenever the Depositor determines to form
a Trust and to make an offering of Offered Securities, it will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such Offered
Securities to, and the purchase and offering thereof by, the Underwriters who
execute the Terms Agreement, or have authorized the Representative to enter into
such Terms Agreement on their behalf, and agree thereby to become obligated to
purchase such Offered Securities from the Depositor. Such Terms Agreement shall
specify, among other things, principal balance, notional amount or stated
principal balance of each related class or subclass to be issued and their terms
not otherwise specified in the Sale and Servicing Agreement, the price at which
such Offered Securities are to be purchased by the Underwriters from the
Depositor, the aggregate amount of Offered Securities to be purchased by each
Underwriter that is a party to such Terms Agreement, and the initial public
offering price or the method by which the price at
which such Offered Securities are to be sold will be determined. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Representative and the Depositor.
Each offering of Offered Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the related
Underwriters. Except as otherwise required by the context, all references herein
to a Terms Agreement, Closing Time, Time of Sale, Receivables Purchase
Agreement, Indenture, Trust Agreement, Sale and Servicing Agreement,
Administration Agreement, Trust, Underwriter or Underwriters and Loans shall
refer to the Terms Agreement, Closing Time, Receivables Purchase Agreement,
Indenture, Trust Agreement, Sale and Servicing Agreement, Administration
Agreement, Trust, Underwriter or Underwriters and Loans, as the case may be,
relating to the related offering of Offered Securities.
Each Series of Notes will be issued pursuant to an indenture (each, an
"Indenture"), among the Trust, U.S. Bank National Association, as securities
administrator (the "Securities Administrator") and the Indenture Trustee. Each
Note will represent an obligation of the Trust. Pursuant to an administration
agreement (each, an "Administration Agreement"), among the Depositor, ▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA ("MLBUSA"), as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations of the Trust under the Indenture.
Pursuant to the Indenture, the Trust property will be held by the Indenture
Trustee on behalf of the holders of the Notes. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Indenture or the Sale and Servicing Agreement, as the case may be.
Each Trust will be created pursuant to a trust agreement (each, a "Trust
Agreement"), among the Depositor and U.S. Bank Trust National Association as
trustee (the "Owner Trustee"). Each Trust may issue Certificates under the Trust
Agreement and each Certificate will evidence a fractional undivided interest in
the Trust and will be subordinated to the Notes to the extent described in the
Indenture and Trust Agreement.
The Terms Agreement, Indenture, Trust Agreement, Administration Agreement,
Sale and Servicing Agreement, the receivables purchase agreement (the
"Receivables Purchase Agreement"), between the MLBUSA, as seller, and the
Depositor, as purchaser, and the spread account agreement, if any, (the "Spread
Account Agreement"), among the Trust and the Indenture Trustee are referred to
herein collectively as the "Basic Documents."
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-139130) covering the
registration of the Offered Securities under the Securities Act of 1933, as
amended (the "Securities Act"), which Registration Statement, as amended at the
date hereof, has become effective and the offering thereof from time to time in
accordance with Rule 415 under rules and regulations of the Commission under the
Securities Act (the "Securities Act Regulations"). Such registration statement,
as amended at the time of effectiveness, including all material incorporated by
reference therein and including all information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430B of
the Securities Act Regulations, is referred to in this Agreement as the
"Registration Statement." The Depositor proposes to file
2
with the Commission pursuant to Rule 424(b) under the Securities Act ("Rule
424(b)") a supplement (such supplement, together with any amendment thereof or
supplement thereto, is hereinafter referred to as the "Prospectus Supplement")
to the prospectus included in the Registration Statement (such prospectus,
together with any amendment thereof or supplement thereto, in the form it
appears in the Registration Statement or in the form most recently revised and
filed with the Commission pursuant to Rule 424(b) is hereinafter referred to as
the "Basic Prospectus") relating to the Offered Securities and the method of
distribution thereof. The Basic Prospectus and the Prospectus Supplement are
hereinafter referred to as the "Prospectus."
Prior to the date and time of the first Contract of Sale (within the
meaning of Rule 159 under the Securities Act for the Offered Securities
designated in the Terms Agreement (the "Time of Sale"), the Depositor prepared a
preliminary prospectus (subject to completion). As used herein, "Preliminary
Prospectus" means, with respect to any date or time referred to herein, the most
recent preliminary Prospectus (as such preliminary Prospectus may be amended or
supplemented), which has been prepared and delivered by the Depositor to the
Underwriters in accordance with the provisions hereof.
For the purposes of this Agreement, all references to the Registration
Statement, the Preliminary Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇"). In addition, for purposes of this Agreement, all
references to the Registration Statement, the Preliminary Prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include any information regarding "static pools" that is set forth
therein or incorporated therein by reference but is deemed not to be a part of
any prospectus or registration statement pursuant to Item 1105(d) of Regulation
AB.
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, the Preliminary Prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which is incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Depositor. The Depositor
represents and warrants to the Underwriters as of the date hereof, as of the
date of the Terms Agreement and as of the Closing Time referred to in the Terms
Agreement, and agrees with the Underwriters, as follows:
3
(i) Compliance with Registration Requirements. The Depositor meets
the requirements for use of Form S-3 under the Securities Act. The
Registration Statement, including a prospectus and such amendments thereto
as may have been required to the date hereof, relating to the Offered
Securities and the offering of each Series thereof from time to time in
accordance with Rule 415 under the Securities Act, has been filed with the
Commission. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Depositor, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
At the most recent time the Registration Statement and any
post-effective amendment thereto became effective and at Closing Time, the
Registration Statement and any amendments thereto complied and will comply
in all material respects with the requirements of the Securities Act and
the Securities Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At the
date of the Preliminary Prospectus, at the Time of Sale and at the Closing
Time, neither the Preliminary Prospectus nor any amendments and supplements
thereto included or will include an untrue statement of a material fact or
omitted or will 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 (it being understood that no representation or
warranty is made with respect to the omission of pricing and
price-dependent information, which information shall appear in the final
Prospectus but not in the Preliminary Prospectus). At the date of the
Prospectus and at the Closing Time, neither the Prospectus nor any
amendments and supplements thereto included or will include an untrue
statement of a material fact or omitted or will 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. Notwithstanding
the foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement,
the Preliminary Prospectus or the Prospectus made in reliance upon and in
conformity with information furnished to the Depositor in writing by any
Underwriter through the Representative expressly for use in the
Registration Statement or the Prospectus or that part of the Registration
Statement which constitutes the Statements of Eligibility of Qualification
(Form T-1) of the Indenture Trustee or other indenture trustees under the
1939 Act.
The Preliminary Prospectus and the Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, complied
when so filed in all material respects with the Securities Act Regulations
and the Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Offered Securities
will, at the time of such delivery, be identical to any electronically
transmitted
4
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
Other than the Preliminary Prospectus and the Prospectus, the
Depositor (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any "written communication", including any
"free writing prospectus", (each as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation of any
offer to buy the Offered Securities.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations").
(iii) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Depositor, whether
or not arising in the ordinary course of business (a "Material Adverse
Change"), (B) there have been no transactions entered into by the
Depositor, other than those in the ordinary course of business, which are
material with respect to such entity and (C) there has been no material
adverse change in the Financial Statements.
(iv) Due Organization of the Depositor. The Depositor has been duly
formed and is validly existing as a corporation under the laws of the State
of Delaware; the Depositor has all requisite power and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus and to enter into and to
perform its obligations under this Agreement, each Basic Document to which
it is a party and the Securities; and the Depositor is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or to be in good standing would not result in a Material Adverse
Change or have a material adverse effect on its ability to perform its
obligations under the Basic Documents to which it is a party.
(v) Authorization of Agreement. This Agreement has been, and each
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Depositor.
(vi) Authorization of Basic Documents. As of the Closing Time, each of
the Basic Documents to which the Depositor is a party has been, or will
have been, duly authorized, executed and delivered by such entity, and,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, will constitute a valid and
5
binding agreement of the Depositor, enforceable against such entity in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(vii) Issuance of the Notes. The Notes have been duly authorized and,
at the Closing Time, will have been duly executed, issued and delivered
and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided herein
and in the Terms Agreement, will constitute valid and binding obligations
of the Trust, enforceable against the Trust in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(viii) Issuance of the Certificates. The Certificates have been duly
and validly authorized and, when executed, authenticated and delivered in
accordance with the Trust Agreement, will be validly issued and outstanding
and entitled to the benefits of the Trust Agreement.
(ix) Description of the Offered Securities and Basic Documents. The
Offered Securities and each of the Basic Documents conform in all material
respects to the descriptions thereof and the statements relating thereto
contained in the Registration Statement and the Prospectus.
(x) Absence of Defaults and Conflicts. The Depositor is not in
violation of its organizational or charter documents or bylaws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to which
any of its properties or assets is subject (collectively, "Agreements and
Instruments"), except for defaults that would not result in a Material
Adverse Change and would not have a material adverse effect on its ability
to perform its obligations under the Basic Documents to which it is a
party; and the execution, delivery and performance by the Depositor of this
Agreement, each Basic Document to which it is a party, the consummation of
the transactions contemplated herein and therein, in the Registration
Statement or in the Prospectus and compliance with its obligations
hereunder and thereunder have been duly and validly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, a default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") upon any of its property or assets pursuant to the
Agreements and Instruments except for Liens permitted by the Basic
Documents and conflicts, breaches or defaults that, individually or
6
in the aggregate, will not result in a Material Adverse Change and would
not have a material adverse effect on its ability to perform its
obligations under the Basic Documents to which it is a party, nor will such
action result in any violation of the provisions of its charter or
organizational documents or bylaws or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Depositor or any of its assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Depositor.
(xi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending or, to the knowledge of
the Depositor, threatened, against or affecting the Depositor which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably to expected to
result in a Material Adverse Change, or which might reasonably be expected
to materially and adversely affect its properties or assets or the
consummation of the transactions contemplated by this Agreement or any
Basic Document to which it is a party or the performance of its obligations
hereunder and thereunder; the aggregate of all pending legal or
governmental proceedings to which the Depositor is a party or of which any
of their respective properties or assets is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Change.
(xii) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court, governmental authority or agency or
any other person is necessary in connection with (A) the issuance or the
offering and sale of the Offered Securities, (B) the execution, delivery
and performance by the Depositor of this Agreement or any Basic Document to
which it is a party or (C) the consummation by the Depositor of the
transactions contemplated hereby or thereby, except such as have been
obtained and are in full force and effect as of the Closing Time.
(xiv) Possession of Licenses and Permits. The Depositor possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them; the Depositor is in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Change; all of the Governmental Licenses are valid and in full
7
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Change or would render a material portion
of the Loans unenforceable; and the Depositor has not received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Change, would have a material adverse effect on its ability to
perform its obligations under each Basic Document to which it is a party or
would render a material portion of the Loans unenforceable.
(xv) Title to Loans; Payment of Fees. As of the Closing Time, the
Trust will have good and marketable title to, and will be the sole owner of
each Loan free and clear of Liens other than the Lien in favor of the
Indenture Trustee under the Indenture; all taxes, fees and other
governmental charges arising in connection with the transactions
contemplated by this Agreement and the Basic Documents and with the
execution and delivery of the Loans, including any amendments thereto and
assignments and/or endorsements thereof, have been paid by the Depositor or
the Seller.
(xvi) Investment Company Act. The Depositor is not required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(xvii) Incorporation of Representations and Warranties. The
representations and warranties of the Depositor in each Basic Document to
which it is a party are true and correct in all material respects and are
hereby restated for the benefit of the Underwriters and incorporated by
reference herein with the same effect as if set forth in full herein.
(b) Officer's Certificates. Any certificate signed by any officer of the
Depositor or any of its respective Affiliates (as defined below) and delivered
at the Closing Time to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Depositor or such Affiliate, as
the case may be, to the Underwriters as to the matters covered thereby. When
used in this Agreement, the term "Affiliate" or "Affiliates" shall have the
meaning assigned by Rule 501(b) under the Securities Act Regulations.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) Purchase of the Offered Securities. The several commitments of the
Underwriters to purchase the Offered Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for the Offered Securities shall be made at the offices of Sidley
Austin LLP in New York, New York or at such other place as shall be agreed upon
by the Representative and the Depositor, at 10:00 A.M. (New York time) on the
date set forth in the applicable Terms Agreement, or such other time not later
than five business days after such date as shall be agreed upon by the
8
Representative and the Depositor (such date and time of payment and delivery
being called the "Closing Time").
The Offered Securities will initially be represented by one or more
certificates registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Offered
Securities will be represented by book entries on the records of DTC and
participating members thereof. Certificates for the Offered Securities shall be
made available for examination by the Representative in The City of New York not
later than 10:00 A.M. (New York time) on the business day prior to the Closing
Time.
Delivery of the Offered Securities shall be made against payment of the
purchase price by wire transfer of immediately available funds to a bank account
designated by the Depositor.
Section 3. Covenants of the Depositor. The Depositor covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations. During the period when a
prospectus is required by the Securities Act or the Exchange Act to be
delivered in connection with sales of the Notes (the "Prospectus Delivery
Period"), the Depositor will notify you immediately, and confirm the notice
in writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof
or for additional information, (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any Prospectus, or of the
suspension of the qualification of the Offered Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes and (v) the happening of any event
which, in the judgment of the Depositor, makes the Registration Statement
or the Prospectus contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading. The Depositor will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain as soon as possible the lifting
thereof.
(b) Filing of Amendments. Prior to the termination of the offering of
the Offered Securities, the Depositor will not file any amendment to the
Registration Statement or any amendment, supplement or revision to either
the Preliminary Prospectus or to the Prospectus, unless the Depositor has
furnished you a copy for your review prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which you
shall reasonably object. Subject to the foregoing sentence, the Depositor
will effect the filings required under Rule 424(b) under the Securities Act
in the manner and within the time period required by Rule 424(b) (without
reliance on Rule 424(b)(8)), and will take such steps as it deems necessary
to ascertain promptly whether the Preliminary Prospectus and the Prospectus
transmitted for filing under Rule 424(b) were each received for filing by
the Commission and, in the event that either
9
was not, it will promptly file the Preliminary Prospectus or the
Prospectus, as applicable, and in each case will provide evidence
satisfactory to you of such timely filing.
(c) Delivery of Registration Statements. The Depositor has furnished
or will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Depositor will deliver to each
Underwriter, without charge, as many copies of the Preliminary Prospectus
as such Underwriter may reasonably request, and the Depositor hereby
consents to the use of such copies for purposes permitted by the Securities
Act. The Depositor will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act, such number of copies of the Prospectus
as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Depositor will
comply with the Securities Act and the Securities Act Regulations, the
Exchange Act and the Exchange Act Regulations and the 1939 Act and the 1939
Act Regulations so as to permit the completion of the distribution of the
Offered Securities as contemplated in this Agreement and the Basic
Documents and in the Registration Statement and the Prospectus. If at any
time when the Prospectus is required by the Securities Act or the Exchange
Act to be delivered in connection with sales of the Offered Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the
Depositor, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the Securities
Act or the Securities Act Regulations, the Depositor will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and
10
the Depositor will furnish to the Underwriters, without charge, such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Depositor will use its best efforts,
in cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of the Terms Agreement; provided, however, that the Depositor shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Offered
Securities have been so qualified, the Depositor will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the date of the Terms Agreement. The Depositor will also supply the
Underwriters with such information as is necessary for the determination of
the legality of the offering and sale of the Offered Securities for
investment under the laws of such jurisdictions as the Underwriters may
reasonably request.
(g) Earnings Statement. The Depositor will timely file such reports
pursuant to the Exchange Act as are necessary in order to make generally
available to its security-holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the Securities Act.
(h) Use of Proceeds. The Depositor shall cause the Trust to use the
net proceeds received by it from the sale of the Offered Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(i) Reports, Statements and Certificates. So long as any Offered
Securities are outstanding, the Depositor shall deliver or cause to be
delivered to the Underwriters associated therewith, as soon as copies
become available, copies of (i) each payment date certificate delivered to
the Indenture Trustee pursuant to the Indenture, (ii) the annual statements
of compliance, annual independent certified public accountants' reports and
annual opinions of counsel furnished to the Indenture Trustee or the Owner
Trustee pursuant to the Basic Documents, as soon as such statements,
reports and opinions are furnished to the Indenture Trustee or the Owner
Trustee and (iii) such other information concerning the Depositor, the
Trust or the Offered Securities as the Underwriters may reasonably request
from time to time.
(j) Reporting Requirements. The Depositor, during the period when the
Prospectus is required to be delivered under the Securities Act or the
Exchange Act, will file all documents required to be filed with the
Commission pursuant to the Exchange Act within the time periods required by
the Exchange Act and the Exchange Act Regulations.
Section 4. Payment of Expenses.
11
(a) Expenses. The Depositor shall pay all of its own expenses incident to
the performance of its obligations under this Agreement and the Terms Agreement,
including without limitation (i) the preparation, printing and filing of the
Registration Statement, the Preliminary Prospectus, the Prospectus and each
amendment or supplement thereto, (ii) the preparation, reproduction and delivery
to the Underwriters of this Agreement, the Terms Agreement, any agreement among
the Underwriters, each Basic Document and such other documents as may be
required in connection with the issuance, offering, purchase, sale or delivery
of the Offered Securities, (iii) the preparation, issuance and delivery of the
certificates for the Offered Securities to the Underwriters, (iv) the fees and
expenses of the counsel, accountants and other advisors of the Depositor and any
of its Affiliates in connection with the transactions contemplated by this
Agreement, (v) the qualification of the Offered Securities under state
securities laws in accordance with the provisions of Section 3(f), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith, (vi) the printing and delivery to the
Underwriters of copies of the Preliminary Prospectus, any Term Sheet, the
Prospectus and any amendments on supplements thereto, (vii) the fees and
expenses of the Owner Trustee and the Indenture Trustee, including the
reasonable fees and disbursements of their respective counsel in connection with
the transactions contemplated by this Agreement, and (viii) any fees payable to
▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇"), Fitch Ratings ("Fitch") and
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard &
Poor's, and together with Moody's and Fitch, the "Rating Agencies") in
connection with the rating of the Offered Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 11(a),
the Depositor shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters are subject to the accuracy of the
representations and warranties of the Depositor contained in Section 1 or in
certificates of any officer of the Depositor or any of its Affiliates delivered
pursuant to a Terms Agreement or the provisions hereof, to the performance by
the Depositor of its covenants and other obligations hereunder and to the
following additional conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act and no proceedings for that purpose shall
have been instituted or be pending or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel for the
Underwriters. A prospectus containing information relating to the
description of the Offered Securities, the specific method of distribution
and similar matters shall have been filed with the Commission in accordance
with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A).
12
(b) Accountants' Comfort Letter. At the Closing Time, the
Underwriters, the Depositor shall have received from Deloitte & Touche a
letter or letters dated as of the Closing Time, in form and substance as
previously agreed to by the Underwriters and otherwise satisfactory in form
and substance to the Underwriters and counsel for the Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial,
statistical and other information contained in the Preliminary Prospectus
and the Prospectus.
(c) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Change with
respect to the Depositor, whether or not arising in the ordinary course of
business, and the Underwriters shall have received certificates of
authorized officers of the Depositor, dated as of the Closing Time, to the
effect that (i) there has been no such Material Adverse Change, (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as though expressly made at and as of such Closing
Time and (iii) the Depositor has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(d) Opinion of Counsel for the Depositor. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Sidley Austin LLP, counsel for the Depositor, in form and
substance satisfactory to counsel for the Underwriters, substantially to
the effect that:
(i) The Depositor has been duly formed and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement and
each of the Basic Documents to which it is a party.
(ii) The Notes, the Sale and Servicing Agreement and the
Indenture conform in all material respects to the descriptions thereof
contained in the Prospectus;
(iii) Assuming that the Sale and Servicing Agreement has been
duly authorized, executed and delivered by the parties thereto, it
constitutes a valid and binding agreement of the Depositor and the
Master Servicer, enforceable against the Depositor and the Master
Servicer in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(iv) Assuming that the Administration Agreement has been duly
authorized, executed and delivered by the parties thereto, it
constitutes a valid and binding agreement of the Administrator,
enforceable against the Administrator in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
13
reorganization, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law;
(v) Assuming that the Indenture has been duly authorized,
executed and delivered by the parties thereto, it constitutes a valid
and binding agreement of the Issuer, enforceable against the Issuer in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(vi) Assuming that the Receivables Purchase Agreement has been
duly authorized, executed and delivered by the parties thereto, each
constitutes a valid and binding agreement of each of the Seller and
the Depositor, enforceable against each of the Seller and the
Depositor in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a proceeding
in equity or at law and with respect to rights of indemnity under the
Receivables Purchase Agreement, limitations of public policy under
applicable laws;
(vii) This Agreement has been duly authorized, executed and
delivered by the Depositor;
(viii) Assuming that the Notes have been duly and validly
authorized, executed and authenticated in the manner contemplated in
the Indenture, when delivered and paid for, the Notes will be valid
and binding obligations of the Issuer, enforceable against the Issuer
in accordance with their terms, and will be entitled to the benefits
of the Indenture, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity
or at law;
(ix) The Trust Agreement is not required to be qualified under
the Trust Indenture Act and the Issuer is not required to be
registered under the 1940 Act; and
(x) The Indenture has been duly qualified under the Trust
Indenture Act.
Such counsel shall have endeavored to see that the Registration
Statement and the Prospectus comply with the Securities Act and the rules and
regulations of the Commission thereunder relating to registration statements on
Form S-3 and related prospectuses, but such counsel cannot, of course, make any
representation to you as to the accuracy or completeness of statements of fact
contained therein. Nothing, however, shall have come to such counsel's attention
that has caused such counsel to believe that (i) the Registration Statement, at
the time it
14
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) that the Preliminary Prospectus, as of
the date of the related preliminary prospectus supplement, at the Time of Sale
or at the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits 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 or (iii) that the Prospectus, as of the date of the related
prospectus supplement or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits 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 other than (x) the
information incorporated therein by reference (including, without limitation,
any Issuer Information), (y) the financial, statistical and numerical
information contained therein and (z) that part of the Registration Statement
that contains the Statement of Eligibility and Qualification (Form T-1) of the
Indenture Trustee under the 1934 Act, as to which in each case such counsel need
make no statement.
(e) Opinion of Counsel for the Seller. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of the ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel for the
Seller, in form and substance satisfactory to counsel for the Underwriters.
(f) Opinion of Special Delaware Counsel for the Depositor. At the
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Finger, special Delaware
counsel for the Trust, in form and substance satisfactory to counsel for
the Underwriters, substantially to the effect that:
(i) The Trust has been duly formed and is validly existing as a
business trust pursuant to the laws of the State of Delaware, 12 Del.
C. ▇▇.▇▇. 3801, et seq.
(ii) The Trust Agreement authorizes the Trust to execute and
deliver the Indenture, the Sale and Servicing Agreement, and the
Administration Agreement, to issue the Certificates and the Notes and
to grant the trust estate to the Indenture Trustee as security for the
Notes.
(iii) Assuming that the Certificates have been duly authorized,
executed and issued by the Trust, the Certificates have been validly
issued and are entitled to the benefits of the Trust Agreement.
(iv) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing
is required in the State of Delaware in order to make effective the
lien of the Indenture. Insofar as the Delaware Uniform Commercial
Code, 6 Del. C. ss. 9-101 et seq. (the "Delaware UCC"), applies
(without regard to conflict of laws principles) and, assuming that the
security interests in that portion of the trust estate that consists
of tangible chattel paper, as defined under the Delaware UCC, have
been duly created and have attached, the Indenture Trustee has a
perfected security interest in such
15
tangible chattel paper and, assuming that the Delaware UCC search
accurately lists all the financing statements filed naming the Trust
as debtor and describing any portion of the trust estate consisting of
such tangible chattel paper, the security interest of the Indenture
Trustee will be prior to the security interest of all other creditors,
subject to customary and usual exceptions.
(v) No creditor of the Depositor or any Certificateholder shall
have any right to obtain possession or, or otherwise legal or
equitable remedies with respect to, the property of the Trust.
(vi) Assuming that the Sale and Servicing Agreement conveys good
title to the Trust Property referred to therein to the Trust as a true
sale and not as a security arrangement, the Trust rather than the
Depositor is the owner of the Trust Property.
(vii) The Trust Agreement is a legal, valid and binding agreement
of the parties thereto, enforceable against such parties, in
accordance with its terms.
(viii) The Offered Securities have been duly and validly
authorized and, when executed, authenticated and delivered in
accordance with the Trust Agreement and the Indenture, in the case of
(i) the Notes, will be legal, valid and binding obligations of the
Trust, enforceable against the Trust, in accordance with their terms,
and (ii) the Certificates, will be duly and validly issued and
outstanding and entitled to the benefits of the Trust Agreement.
(g) Opinion of Special Bankruptcy Counsel to the Depositor. At the
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of Sidley Austin LLP, special bankruptcy
counsel to the Depositor, in form and substance satisfactory to counsel for
the Underwriters, with respect to certain bankruptcy matters.
(h) Opinion of Special Tax Counsel to the Depositor. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as
of the Closing Time, of Sidley Austin LLP, special tax counsel to the
Depositor, in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that (i) for federal income tax
purposes, the Notes will be considered debt and the Trust will not be an
association taxable as a corporation and (ii) the statements in the
Prospectus under the caption "Material Federal Income Tax Consequences", to
the extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(i) Opinion of Counsel for Indenture Trustee. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the
Indenture Trustee, in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a banking association under the laws of the United
States.
16
(ii) The Indenture Trustee, at the time of its execution and
delivery of the Indenture, had full power and authority to execute and
deliver the Indenture and has full power and authority to perform its
obligations thereunder.
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Indenture Trustee and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes the valid and binding obligation of the Indenture Trustee
enforceable against the Indenture Trustee in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting creditors' rights or
by general principles of equity.
(iv) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against
or affecting the Indenture Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
adversely decided, would materially and adversely affect the ability
of the Indenture Trustee to carry out the transactions contemplated in
the Indenture.
(j) Opinion of Counsel for Owner Trustee. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, in
form and substance satisfactory to counsel for the Underwriters,
substantially to the effect that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a national banking association in good standing under the
laws of the State of Delaware.
(ii) The Owner Trustee has full corporate trustee power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Certificates and the
Notes and the performance by the Owner Trustee of its obligations
under the Trust Agreement, the Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly authorized
by all necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the
Indenture and the Administration Agreement constitute valid and
binding agreements of the Owner Trustee, enforceable against the Owner
Trustee in accordance with their terms, subject, as to enforcement of
remedies, (A) to applicable bankruptcy, insolvency and reorganization,
generally, and (B) to
17
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the Sale and Servicing
Agreement, the Indenture and the Administration Agreement, and the
performance by the Owner Trustee of its obligations thereunder do not
conflict with, result in a breach or violation of or constitute a
default under, the Articles or By-laws of the Owner Trustee.
(k) Opinion of Counsel for the Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Sidley Austin LLP, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters. In rendering such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States, upon the opinions of counsel reasonably
satisfactory to the Underwriters.
(l) Reliance Letters. Counsel to the Depositor shall provide reliance
letters to the Underwriters relating to each legal opinion relating to the
transaction contemplated hereby or in the Terms Agreement rendered to
either Trustee or either Rating Agency.
(m) Maintenance of Rating. At the Closing Time, the Notes shall be
rated as set forth in the related Prospectus Supplement relating to the
Offered Securities and the Depositor shall have delivered to the
Underwriters a letter dated the Closing Time from each Rating Agency, or
other evidence satisfactory to the Underwriters, confirming that the Notes
have such ratings; and since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the Notes or any
other securities of the Depositor by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act, and no such rating agency shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Notes or any other
securities of the Depositor.
(n) Additional Rating Agency Requirements. The Depositor will, to the
extent, if any, that the ratings provided with respect to the Offered
Securities by a Rating Agency are conditioned upon the furnishing or the
taking of any other actions by the Depositor, furnish such documents and
take all such other actions.
(o) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
it may reasonably require for the purpose of enabling it to pass upon the
issuance and sale of the Offered Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Depositor in connection with the foregoing shall
be satisfactory in form and substance to counsel for the Underwriters.
18
Section 6. Representations and Warranties of the Underwriters.
(a) Each Underwriter, severally and not jointly, represents and
warrants to, and agrees with, the Depositor, in relation to each member
state of the European Economic Area which has implemented the Prospectus
Directive (each, a "Relevant Member State"), that with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it has not made
and will not make an offer of Offered Securities to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to the Offered Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in
that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Offered Securities to the public in
that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average
of at least 250 employees during the last financial year; (B) a total
balance sheet of more than (euro)43,000,000 and (C) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this Section 5(a), the expression an "offer of
Offered Securities to the public" in relation to any Offered Securities in
any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Offered
Securities to be offered so as to enable an investor to decide to purchase
or subscribe for the Offered Securities, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that
Member State, and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State. "European Economic Area" means Austria, Belgium, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom,
Iceland, Liechtenstein and Norway.
(b) Each Underwriter, severally and not jointly, represents and
warrants to, and agrees with, the Depositor that:
(i) It has complied and will comply with all applicable
provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇ ("FSMA") of
Great Britain with
19
respect to anything done by it in relation to the Offered Securities
in, from or otherwise involving the United Kingdom.
(ii) It has only communicated or caused to be communicated and it
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue or
sale of any of the Offered Securities in circumstances in which
Section 21(1) of the FSMA does not apply to the Trust.
Section 7. Free Writing Prospectuses; Delivery of Preliminary Prospectus.
(a) The following terms have the specified meanings for purposes of
this Agreement:
(i) "Free Writing Prospectus" means and includes any information
relating to the Offered Securities disseminated by the Depositor or
any Underwriter that constitutes a "free writing prospectus" within
the meaning of Rule 405 under the Securities Act.
(ii) "Issuer Information" means (1) the information contained in
any Underwriter Free Writing Prospectus which information is also
included in the Preliminary Prospectus (other than Underwriter
Information) and (2) information in the Preliminary Prospectus that is
used to calculate or create any Derived Information.
(iii) "Derived Information" means such written information
regarding the Offered Securities as is disseminated by any Underwriter
to a potential investor, which information is neither (A) Issuer
Information nor (B) contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus Supplement, the Prospectus or
any amendment or supplement to any of them, taking into account
information incorporated therein by reference (other than information
incorporated by reference from any information regarding the Offered
Securities that is disseminated by any Underwriter to a potential
investor).
(b) Neither the Depositor nor any Underwriter shall disseminate or
file with the Commission any information relating to the Offered Securities
in reliance on Rule 167 or 426 under the Securities Act, nor shall the
Depositor or any Underwriter disseminate any Underwriter Free Writing
Prospectus (as defined below) "in a manner reasonably designed to lead to
its broad unrestricted dissemination" within the meaning of Rule 433(d)
under the Securities Act.
(c) The Depositor will not disseminate to any potential investor any
information relating to the Offered Securities that constitutes a "written
communication" within the meaning of Rule 405 under the Securities Act,
other than the Preliminary Prospectus and the Prospectus, unless the
Depositor has obtained the prior consent of the Representatives (which
consent will not be unreasonably withheld).
20
(d) Each Underwriter represents, warrants, covenants and agrees with
the Depositor that, other than the Preliminary Prospectus and the
Prospectus, it has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to
any "written communication" (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer to buy
the Offered Securities, including but not limited to any "ABS informational
and computational materials" as defined in Item 1101(a) of Regulation AB
under the Securities Act; provided, however, that (i) each Underwriter may
prepare and convey one or more "written communications" (as defined in Rule
405 under the Securities Act) containing no more than the following: (1)
information included in the Preliminary Prospectus, (2) information
relating to the class, size, rating, price, CUSIPS, coupon, yield, spread,
benchmark, status and/or legal maturity date of the Offered Securities, the
weighted average life, expected final payment date, trade date, settlement
date and payment window of one or more classes of Offered Securities and
the underwriters for one or more classes of Offered Securities, (3) the
eligibility of the Offered Securities to be purchased by ERISA plans, (4) a
column or other entry showing the status of the subscriptions for the
Offered Securities (both for the issuance as a whole and for each
Underwriter's retention) and/or expected pricing parameters of the Offered
Securities and (5) an Intex CDI file that contains only information of the
type described in clause (5) of footnote 271 of Commission Release No.
33-8591 (Securities Offering Reform) and that has been prepared by an
Underwriter as described in the parenthetical to such footnote (each such
written communication, an "Underwriter Free Writing Prospectus"); (ii)
unless otherwise consented to by the Depositor, no such Underwriter Free
Writing Prospectus shall be conveyed if, as a result of such conveyance,
the Depositor or the Trust shall be required to make any registration or
other filing solely as a result of such Underwriter Free Writing Prospectus
pursuant to Rule 433(d) under the Securities Act other than the filing of
the final terms of the Offered Securities pursuant to Rule 433(d)(5) under
the Securities Act; (iii) each Underwriter shall provide the Depositor a
true and accurate copy of each Free Writing Prospectus conveyed by it of
the type referred to in Rule 433(d)(5)(ii) under the Securities Act no
later than noon (Central Time) on the date of first use; and (iv) each
Underwriter will be permitted to provide confirmations of sale. It is
hereby acknowledged that no Underwriter Free Writing Prospectus has been
prepared by or on behalf of the Trust or the Depositor for purposes of Rule
433(h)(1) or 433(h)(3) under the Securities Act.
(e) The Depositor agrees to file with the Commission when required
under the Securities Act the following:
(i) subject to the Underwriters' compliance with Section 9(d),
any Underwriter Free Writing Prospectus at the time required to be
filed; and
(ii) any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Depositor or any other offering participant that
is in the business of publishing, radio or television broadcasting or
otherwise disseminating communications.
21
(f) Notwithstanding the provisions of Section 9(e), the Depositor will
not be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
(g) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it will contain the following legend:
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the Depositor has filed
with the SEC for more complete information about the Depositor, the
Issuing Entity, and this offering. You may get these documents for
free by visiting ▇▇▇▇▇ on the SEC website at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the Depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus
if you request it by calling toll-free 1-8[xx-xxx-xxxx].
(h) The Depositor and the Underwriters each agree to retain all Free
Writing Prospectuses that they have used and that are not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(i) In the event the Depositor becomes aware that, as of the Time of
Sale, the Preliminary Prospectus contains or contained any untrue statement
of material fact or omits or omitted to state a material fact necessary in
order to make the statements contained therein in light of the
circumstances under which they were made, not misleading (a "Defective
Prospectus"), the Depositor shall promptly notify the Representatives of
such untrue statement or omission no later than one business day after
discovery and the Depositor shall, if requested by the Representatives,
prepare and deliver to the Underwriters a Corrected Prospectus.
(j) If any Underwriter becomes aware that, as of the Time of Sale, any
Underwriter Free Writing Prospectus delivered to a purchaser of an Offered
Security contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "Defective Free Writing
Prospectus"), the Underwriter will notify the Depositor thereof within one
Business Day after discovery.
(k) Provided that the Defective Free Writing Prospectus was the
Preliminary Prospectus Free Writing Prospectus or contained Issuer
Information, the Underwriter will, if requested by the Depositor:
(i) Prepare a Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Free Writing Prospectus
(such corrected Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(ii) Deliver the Corrected Free Writing Prospectus to each
purchaser of an Offered Security which received the Defective Free
Writing Prospectus prior to entering into an agreement to purchase any
Offered Securities;
22
(iii) Provide such purchaser with adequate disclosure of the
existing contractual arrangement to purchase the Offered Securities;
(iv) Provide such purchaser adequate disclosure of such person's
rights under the existing contractual arrangement to purchase the
Offered Securities at the time termination is sought; and
(v) Provide such purchaser with a meaningful opportunity to elect
to terminate or not terminate the existing contract of purchase and to
elect to enter into or not enter into a new agreement to purchase the
Offered Securities based on the information set forth in the Corrected
Free Writing Prospectus.
(l) Each Underwriter, severally, represents and agrees that it did not
enter into any contract of sale for any Offered Securities prior to the
Time of Sale.
Section 8. Indemnification.
(a) Indemnification of Underwriters. The Depositor agrees to indemnify and
hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including Rule 430B Information) or any amendment thereto, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Preliminary Prospectus (or any amendment or
supplement thereto), the Prospectus (or any amendment or supplement
thereto) or the Issuer Information or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Issuer Information
distributed by any Underwriter;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
8(d)) any such settlement is effected with the written consent of the
Depositor; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or
23
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever, based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Depositor by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto), or the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Depositor. The Underwriters severally agree to
indemnify and hold harmless the Depositor and each person, if any, who controls
the Depositor within the meaning of Section 15 of the 1993 Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 8(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made (i) in the Prospectus (or any amendment thereto), the
Preliminary Prospectus (or any amendment thereto) or the Registration Statement,
including Rule 430B Information, (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Depositor by such Underwriter expressly for use in the Registration Statement,
including Rule 430 Information, (or any amendment thereto), such Preliminary
Prospectus (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) or (ii) in the Derived Information that does not arise out
of an error, material misstatement or material omission in the information
contained in the Preliminary Prospectus or in any computer tape in respect of
the Offered Securities or the related receivables furnished by the Depositor to
any Underwriter. The Underwriters respective obligations to indemnify pursuant
to this Section are several in proportion to the principal amount of Offered
Securities set forth opposite their respective names in the Terms Agreement and
not joint.
As used herein, "Rule 430B Information" means any information included in
the Prospectus that was omitted from the Registration Statement at the time it
became effective but that is deemed to be part of and included in the
Registration statement pursuant to Rule 430B under the Securities Act.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a), counsel
to the indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 8(b), counsel to the indemnified
parties shall be selected by the Depositor, as applicable. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the
24
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section or Section 9 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 9. Contribution. If the indemnification provided for in Section 8
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Depositor on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Depositor and the total underwriting discount and commission
received by the Underwriters, bear to the aggregate initial offering price of
the Offered Securities. The relative fault of the Depositor on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by the Underwriters and the parties'
relative
25
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Depositor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever, based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting discount or commission allocable to the Offered Securities
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as such
Underwriters, and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Depositor. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Offered Securities set forth opposite
their respective names in the Terms Agreement and not joint. The obligations of
the Depositor are in addition to any other liability it may otherwise have.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Depositor and its Affiliates submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or any controlling
person, or by or on behalf of the Depositor and its Affiliates, and shall
survive delivery of the Offered Securities to the Underwriters.
Section 11. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by
notice to the Depositor, at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Depositor, its
subsidiaries
26
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Underwriters, impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities, (iii)
if trading in any securities of the Depositor or any of its Affiliates has been
suspended or materially limited by the Commission or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority or (iv) if a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4, and provided further that Sections 1, 8, 9 and
10 shall survive such termination and remain in full force and effect.
Section 12. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Offered
Securities which it or they are obligated to purchase (the "Defaulted
Securities"), then the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Offered Securities to be purchased
on such date, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations in the Terms Agreement bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Offered Securities to be purchased on such
date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representative or the Depositor shall have the right
to postpone the Closing Time for a
27
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
Section 13. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Four World Financial
Center, New York, New York 10080, attention Syndicate Department; notices to the
Depositor shall be directed to Four World Financial Center, New York, New York
10080 attention President.
Section 14. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Depositor and its respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Depositor and its respective successors and the controlling
persons, directors and officers referred to in Sections 8 and 9 and their heirs
and legal Underwriters any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Depositor and its respective
successors, and the controlling persons, directors and officers referred to in
Sections 8 and 9 and their heirs and legal Underwriters and for the benefit of
no other person, firm or corporation. No purchaser of Offered Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 16. Effect of Headings. The Article and Section headings herein are
for convenience only and shall not effect the construction hereof.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Depositor in accordance with its terms.
ML ASSET BACKED CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
as Representative of the several Underwriters
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
Underwriting Agreement
EXHIBIT A
ML ASSET BACKED CORPORATION
(Depositor)
Series _______
TERMS AGREEMENT
---------------
_______ __, ____
To: ML Asset Backed Corporation, as Depositor under the Sale and Servicing
Agreement dated as of _______ __, ____ (the "Sale and Servicing
Agreement"). Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement.
Re: Underwriting Agreement dated_______ __, ____.
Title: _______________ Asset-Backed Notes, Series _______.
Principal Amount: $__________________
Terms of the Notes:
Original Interest Rate
Class Principal Amount or Formula
------- --------------------------------- ----------------
A $_______________
(approximate; subject to a
variance of plus or minus 5%)
A-1
Ratings:
--------
Class ▇▇▇▇▇'▇ Fitch Standard & Poor's
----------- ------------ ----------- -----------------------
A
B
Terms of Sale: The purchase price payable by the Underwriters for the
Offered Securities is _____% of the principal amount of the Offered Securities
plus accrued interest at the related Interest Rate from the date of initial
issuance.
Payment of the purchase price shall be in immediately available Federal
funds wired to such bank as may be designated by the Depositor.
The Class ___ Notes issued pursuant to the Indenture and the Class ___
Certificates issued pursuant to the Trust Agreement are not subject to this
Agreement.
Underwriting Breakdown:
----------------------
Class A Class B
---------------------- ----------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $_____________________ $_____________________
Incorporated.................................
-----------------------------............................ $_____________________ $_____________________
Total $_____________________ $_____________________
Underwriting Commissions:
------------------------
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by the Depositor to the
Underwriters in connection with the purchase of the Notes.
Public offering price and/or method of determining price at which the
Underwriters will sell the Notes:
Class A: __________%
Class B: __________%
Information Furnished by the Underwriters
-----------------------------------------
For purposes of Section 1(a)(i) and Section 8(b) of the Underwriting
Agreement the information in the Prospectus (or any amendment thereto), or the
Preliminary Prospectus or the Registration Statement (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Depositor by the Underwriters shall be limited to the
following: [ ]
A-2
Loans: The motor vehicle installment sales contracts and loans (the
"Loans") sold by the Seller to the Depositor pursuant to the Receivables
Purchase Agreement, dated as of _______ __, ____, between the Depositor, as
purchaser, and MLBUSA, as seller, and conveyed by the Depositor to the Trust
pursuant to the Sale and Servicing Agreement, are more fully described in
Exhibit A to the Sale and Servicing Agreement.
Closing Time: 10:00 a.m., New York time, on or about ______ __, ____, or at
such other time not later than seven full business days thereafter as may be
agreed upon, at the offices of ____________ at ________________________________.
Time of Sale: 4:00 p.m. New York time on June 8, 2007.
A-3
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon, it will become a
binding agreement among the Depositor and the several Underwriters in accordance
with its terms.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
as Representative of the several Underwriters
By: _________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first written:
ML ASSET BACKED CORPORATION,
as Depositor
By:________________________________
Name:
Title:
A-4