Exhibit 1.1
$
---,---,---
TRUST 200 -
--------- --- ----
Auto Receivable Asset-Backed Notes
--------
Auto Receivable Asset Back Certificates
-------
POOLED AUTO SECURITIES SHELF LLC
Depositor
FORM OF UNDERWRITING AGREEMENT
______ __, 200_
First Union Securities, Inc.
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
Pooled Auto Securities Shelf LLC, a Delaware limited liability company
(the "Depositor"), proposes, from time to time, to form one or more special
purpose entities (each, a "Trust") which will issue up to $___________ aggregate
principal amount of securities entitled "_____ Auto Receivable Asset Backed
Notes" (the "Notes") and "_____ Auto Receivable Asset Backed Certificates" (the
"Certificates" and, together with the Notes, 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 fixed
rate simple interest motor vehicle installment 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, a third party seller (the
"Sponsor"), the Sponsor, as servicer (in such capacity, the "Servicer") and
__________, 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 First Union
Securites, Inc. ("First Union") and other underwriters (collectively, the
"Underwriters") for whom First Union 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 First Union 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 First Union 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, 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, the Sponsor, the Servicer 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, the Sponsor, 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.
Simultaneously with the issuance of each Series of the Notes, the
Depositor will, if specified in the Terms Agreement, cause the Trust to issue
Certificates in an aggregate principal amount set forth in the Terms Agreement.
Each Trust will be created and the related Certificates will be issued pursuant
to a trust agreement (each, a "Trust Agreement"), among the Depositor and
_______________, a __________________, as trustee (the "Owner Trustee"). 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 Sponsor, 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."
2
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-36692) 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, and the prospectus and the related prospectus supplement that the
Depositor has filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations relating to the sale of the Offered Securities
offered thereby constituting a part thereof, as from time to time amended or
supplemented, including all documents incorporated therein by reference, are
respectively referred to as the "Registration Statement" and the "Prospectus";
provided, however, that a supplement to the Prospectus prepared pursuant to
Section 3(a) shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Offered Securities to which it relates. Any
information included in the prospectus that is omitted from such registration
statement at the time it becomes effective but that is deemed to be part of such
registration statement at the time it becomes effective pursuant to paragraph
(a) of Rule 430A of the Securities Act Regulations is referred to as the "Rule
430A Information". Any preliminary prospectus used in connection with the
Offered Securities prior to the execution and delivery of the Terms Agreement,
is herein called a "preliminary prospectus". For purposes of this Agreement, all
references to the Registration Statement, any 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 ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any 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, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any 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:
(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
3
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 respective times the Registration Statement and any
post-effective amendments 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 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 or the
Prospectus made in reliance upon and in conformity with information furnished to
the Sponsor in writing by any Underwriter through the Representative expressly
for use in the Registration Statement or the Prospectus.
Each 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 each
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 copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(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") and, when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective, at the date of the Prospectus and at the Closing Time, did not
and will not include an untrue statement of a material fact or omit to state
a material fact necessary
4
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, no
representation or warranty is made as to documents deemed to be incorporated
by reference in the Registration Statement as the result of filing any
Additional Materials 8-K (as defined in Section 3(l)) at the request of the
Underwriters except to the extent such documents accurately reflect or are
accurately based upon information furnished by or on behalf of the Depositor
to the Underwriters for the purpose of preparing such documents.
(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 limited liability company under the laws
of the State of Delaware, and all filings required at the date hereof under
the Delaware Limited Liability Company Act (6 Del. C. Section 18-101, et
seq.) (the "LLC Act") with respect to the due formation and valid existence
of the Depositor as a limited liability company have been made; 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 as a foreign limited
liability company 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 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
5
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
6
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 or limited liability company 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 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 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
7
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 Sponsor.
(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 ___________________, 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
8
business days after such date as shall be agreed upon by the Representative and
the Depositor (such date and time of payment and delivery being called the
"Closing Time"). Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties
hereto have agreed that the Closing Date will be not less than five business
days following the date of the related Terms Agreement.
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 AND COMMISSION REQUESTS. The
Depositor, subject to Section 3(b), will comply with the requirements of Rule
430A of the Securities Act Regulations, if and as applicable, and will notify
the Representative 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 for additional information, and (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 preliminary
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. The Depositor will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus.
(b) FILING OF AMENDMENTS. The Depositor will give the Representative
notice of its intention to file or prepare (i) any amendment to the Registration
Statement, (ii) any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the Securities Act, the Exchange Act or
otherwise or (iii) any Computational Materials, ABS Term Sheets or Collateral
Term Sheets (each as defined in Section 6), will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall object.
9
(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 each 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.
11
(k) COMPUTATIONAL MATERIALS. The Depositor will file with the
Commission a current report on Form 8-K (an "Additional Materials 8-K") setting
forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets
provided to the Depositor by any Underwriter within the applicable time periods
allotted for such filing pursuant to the No-Action Letters (as defined in
Section 6).
(l) CORRECTED ITEMS. In the event that an Underwriter must prepare
corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets
pursuant to Section 6(d), the Depositor shall file any corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets no later than two Business
Days following receipt thereof.
Section 4. PAYMENT OF EXPENSES.
(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 each 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, The International Rating
Agency ("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 10(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
12
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).
(b) ACCOUNTANTS' COMFORT LETTER. At the Closing Time, the Underwriters,
the Depositor shall have received from __________ (i) 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 the financial statements of the Depositor, including the related
schedules and notes (collectively, the "Financial Statements") and certain
financial, statistical and other information contained in the Prospectus and
(ii) a letter dated the date of the Computational Materials, ABS Term Sheets or
Collateral Term Sheets, in form and substance as previously agreed to by the
Representative and otherwise satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Representative, as a result of which they have determined that
the information included in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets (if any), provided by the Underwriters to the Depositor
for filing on an Additional Materials 8-K, is accurate.
(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.
13
(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 the ________, 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
limited liability company 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, and is duly qualified and in good standing
as a foreign limited liability company in each jurisdiction in which the
location of its properties or the character of its operations makes such
qualification necessary, except such jurisdictions, if any, in which the
failure to be so qualified and in good standing would not result in a
Material Adverse Change or a material adverse effect on its ability to
perform its obligations under the Basic Documents to which it is a party.
(ii) The Depositor is duly qualified to transact business in Delaware
and North Carolina.
(iii) This Agreement and the Terms Agreement have been duly authorized,
executed and delivered by the Depositor.
(iv) The Depositor has duly authorized, executed and delivered each
Basic Document to which it is a party, and assuming due authorization,
execution and delivery by the other parties thereto, each such Basic
Document constitutes a valid and binding agreement, enforceable against the
Depositor, in accordance with its terms, except as the enforcement thereof
may be subject to or limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and except as enforcement thereof
is subject to general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(v) Assuming the due authorization, execution and delivery of each
Basic Document to which the Trust is a party by the Owner Trustee, on behalf
of the Trust, and by each other party thereto other than the Depositor, each
such Basic Document constitutes the valid, legal and binding obligation of
the Trust enforceable against the Trust in accordance with its terms, except
as the enforcement thereof may be subject to or limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and except as
enforcement thereof is subject to general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(vi) The Certificates have been duly and validly authorized, executed
and issued by the Trust and, when authenticated and delivered in accordance
with the
14
Trust Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(vii) The Notes have been duly and validly authorized, executed and
issued by the Trust and, when authenticated pursuant to the Indenture and
delivered against payment of the consideration specified in the Terms
Agreement, will be entitled to the benefits of the Indenture and will
constitute valid and binding obligations of the Trust, enforceable against
the Trust in accordance with their terms and the terms of the Indenture,
except as the enforcement thereof may be subject to or limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally and
except as enforcement thereof is subject to general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(viii) The Offered Securities and 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.
(ix) Depositor is not an "investment company" nor is it controlled by
an "investment company", as such terms are defined in the 1940 Act.
(x) To such counsel's knowledge, the Depositor possesses such
Governmental Licenses necessary to conduct the business now operated by it,
and is in all material respects complying therewith, and it has not received
any notice of proceedings relating to the revocation or modification of any
such Governmental License that, 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 the ability to
perform its obligations under the Basic Documents to which it is a party or
would render any of the Loans unenforceable.
(xi) The Depositor is not in violation of its organizational or charter
documents or by-laws and, to the best of such counsel's knowledge, no
default by the Depositor exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in its Agreements and
Instruments, except for defaults that would not result in a Material Adverse
Change or would not have a material adverse effect on its ability to perform
its obligations under the Basic Documents to which it is a party.
(xii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency or any other person (other than those which have already
been made, obtained or rendered under the Securities Act, the Securities Act
Regulations, the 1939 Act, the 1939 Act Regulations or as may be required
under the securities or blue sky laws of the various states) is necessary or
required by the Depositor in
15
connection with the authorization, execution, delivery and performance of
this Agreement or the Basic Documents to which it is a party or for the
issuance, offering, sale or delivery of the Offered Securities.
(xiii) The execution, delivery and performance by the Depositor of this
Agreement, the Basic Documents to which it is a party and the Offered
Securities and the consummation of the transactions contemplated in this
Agreement, the Basic Documents, the Registration Statement and in the
Prospectus and compliance with its obligations hereunder or thereunder do
not and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event under or result in the creation or imposition of any Lien
upon any property or assets of the Depositor pursuant to any Agreement or
Instrument to which the Depositor (except for Liens permitted by the Basic
Documents) is a party or by which it may be bound, or to which any of the
property or assets of the Depositor is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
Material Adverse Change or 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
the charter or by-laws of the Depositor, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to such counsel, of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Depositor or properties, assets or operations.
(xiv) To such counsel's knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Depositor is a party or to which any of their respective properties or
assets is subject, before or brought by any court or governmental agency or
body, (i) asserting the invalidity of this Agreement, any Basic Document or
any Offered Securities, (ii) seeking to prevent the issuance of the Offered
Securities or the consummation of any of the transactions contemplated by
this Agreement or any Basic Document or (iii) that would, if determined
adversely to the Depositor, result in a Material Adverse Change or would
materially and adversely affect the performance by the Depositor of its
respective obligations under any Basic Document to which it is a party or
the Offered Securities.
(xv) The statements in the Prospectus under the captions "Summary of
the Terms of the Securities", "Risk Factors", "Description of the Notes",
"Description of the Certificates", "Description of the Receivables Transfer
and Servicing Agreements", "Some Important Legal Issues Relating to the
Receivables" and "ERISA Considerations", to the extent that they constitute
matters of law, summaries of legal matters, documents or proceedings or
legal conclusions relating to U.S. federal law or the laws of the States of
Delaware or New York have been reviewed by such counsel and provide a fair
summary in all material respects.
16
(xvi) To the best of such counsel's knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xvii) The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by
Rule 424(b). To the best of such counsel's knowledge, 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
initiated or are pending or threatened by the Commission.
(xviii) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom and each Trustee's Statement
of Eligibility on Form T-1 (the "Form T-1s"), as to which such counsel
expresses no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Securities Act Regulations.
(xix) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which no opinion need be expressed), when they were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act and the Exchange Act ,
as applicable, and the rules and regulations of the Commission thereunder.
(xx) Nothing has come to such counsel's attention that would lead it to
believe that the Registration Statement or any amendment thereto, including
the Rule 430A Information (other than the financial statements and schedules
and other financial data included therein, as to which no opinion need be
expressed), at the time such Registration Statement or any such amendment
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 or that the Prospectus or any
amendment or supplement thereto (other than the financial statements and
schedules and other financial data included therein, as to which no opinion
need be expressed), at the time the Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes 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.
17
(xxi) All descriptions in the Registration Statement of the Basic
Documents or other contracts or documents filed as exhibits to the
Registration Statement to which the Depositor or any of its Affiliates is a
party are accurate in all material respects; to the best of such counsel's
knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xxii) The Sale and Servicing Agreement, together with the filing of
the UCC financing statements referred to in paragraph (xxiii), creates and
perfects the ownership interest of the Trust in the Loans which is a valid
first priority ownership interest; a financing statement with respect to the
Loans has been filed with the Secretary of State of the State of Delaware
pursuant to the Delaware Uniform Commercial Code, as amended, and with the
Secretary of State of the State of North Carolina, pursuant to the North
Carolina Uniform Commercial Code, as amended; and no other filings in any
jurisdiction or any other actions are necessary to perfect the ownership
interest of either Trustee in the Loans against any third parties.
(xxiii) The Indenture constitutes a grant by the Trust to the Indenture
Trustee of a valid first priority security interest in the Loans, the
security interests in the Financed Vehicles securing the Loans and the
proceeds of each of the foregoing, which security interest has been
perfected by the filing of financing statements with the Secretary of State
of the State of Delaware and the Secretary of State of the State of North
Carolina, each as pursuant to the Uniform Commercial Code as in effect in
such state. No filing or other action, other than the filing of the
financing statements referred to above, is necessary to perfect and maintain
the interest or the security interest of the Indenture Trustee in the Loans,
the security interests in the Financed Vehicles securing the Loans and the
proceeds of each of the foregoing against third parties.
(e) OPINION OF COUNSEL FOR THE SPONSOR. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of the ________, counsel for the Sponsor, in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) The Sponsor is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
wherein it owns or leases material properties or conducts material business
and which requires such qualification;
(ii) The Sponsor has no subsidiaries in any form, whether wholly owned
or other than wholly owned, direct or indirect, other
than [__________________];
18
(iii) The Sponsor is not, and will not as a result of the offer and
sale of the Notes as contemplated in the Prospectus and this Agreement
become, an "investment company" or a company "controlled by" an "investment
company", as such terms are defined in the 1940 Act;
(iv) The Sponsor has obtained all material licenses, permits and other
governmental authorizations that are necessary to the conduct of its
business; such licenses, permits and other governmental authorizations are
in full force and effect, and the Sponsor is in all material respects
complying therewith; and the Sponsor is otherwise in compliance with all
laws, rules, regulations and statutes of any jurisdiction to which it is
subject, except where non-compliance would not have a material adverse
effect on the Sponsor;
(v) none of the execution and delivery of the Sale and Servicing
Agreement, [the Administration Agreement] or the Receivables Purchase
Agreement, the consummation of any of the transactions therein contemplated
or the fulfillment of the terms thereof will conflict with, result in a
breach or violation of, or constitute a default under, any law or the
charter or bylaws of the Sponsor or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Sponsor is a
party or by which it is bound or any judgment, order or decree known to such
counsel to be applicable to the Sponsor of any court, regulatory body,
administrative agency, governmental body, or arbitrator having jurisdiction
over the Sponsor;
(vi) such counsel has examined the Registration Statement and the
Prospectus and nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement (exclusive of any
financial, numerical and statistical information contained therein or
omitted therefrom, as to which such counsel may make no statement), at the
time the Registration Statement became effective, contained any 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, or that the Prospectus (exclusive of any financial, numerical
and statistical information contained therein or omitted therefrom, as to
which such counsel may make no statement), at the date thereof or at the
Closing Date, included or includes any 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;
(vii) the Sponsor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of [Sponsor],
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
19
(viii) the Sale and Servicing Agreement, [the Administration Agreement]
and the Receivables Purchase Agreement have been duly authorized, executed
and delivered by the Sponsor and constitute legal, valid and binding
obligations of the Sponsor, enforceable against the Sponsor in accordance
with their respective terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, or other laws
affecting creditors' rights generally from time to time in effect);
(ix) no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of
the transactions contemplated herein or in any Basic Document to which the
Sponsor is a party, except such as may be required under the blue sky or
securities laws of any jurisdiction in connection with the purchase and sale
of the Securities by the Underwriters, the filing of the UCC-3 partial
release statements relating to the release of the existing liens of the
Sponsor's secured lenders on the Loans and the other Trust property, the
filing of the UCC-1 financing statements relating to the conveyance of the
Loans and the other Trust property by the Sponsor to the Depositor pursuant
to the Receivables Purchase Agreement and of the Loans and the other Trust
property by the Depositor to the Trust and of the Loans and the other Trust
property by the Trust to the Indenture Trustee for the benefit of the
Noteholders pursuant to the Sale and Servicing Agreement, the Trust
Agreement and the Indenture, and such other approvals (which shall be
specified in such opinion) as have been obtained and such filings as have
been made or are in the process of being made;
(x) none of the execution and delivery of this Agreement, the Sale and
Servicing Agreement, [the Administration Agreement] or the Receivables
Purchase Agreement, the consummation of any of the transactions herein or
therein contemplated or the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or constitute a default
under, the charter or bylaws of the Sponsor;
(xi) the provisions of the Receivables Purchase Agreement are effective
to transfer to the Depositor all right, title and interest of the Sponsor in
and to the Loans, and upon filing of the UCC-3 partial release statements
with respect to the interests of the Sponsor's secured lenders in the Loans,
the Loans and, to the knowledge of such counsel, the other Trust property
will be owned by the Depositor free and clear of any Lien except for the
Lien of the Sale and Servicing Agreement and the Indenture;
(xii) the provisions of the Sale and Servicing Agreement are effective
to transfer to the Trust all right, title and interest of the Depositor in
and to the Trust property, and upon filing of the UCC-3 partial release
statements with respect to the interests of the Sponsor's secured lenders in
the Trust property, the Loans and,
20
to the knowledge of such counsel, the other Trust property will be owned by
the Trust free and clear of any Lien except for the Lien of the Indenture;
(xiii) the provisions of the Indenture are effective to create, in
favor of the Indenture Trustee for the benefit of the Noteholders as
security for the Trust's obligations under the Notes, a valid security
interest in the Loans and that portion of the other Trust property that is
subject to Article 9 of the [________] Uniform Commercial Code (the "UCC
Collateral"); and
(xiv) the UCC-1 financing statements naming (A) the Sponsor as seller
and the Depositor as purchaser, (B) the Depositor as seller and the Trust as
purchaser and (C) the Trust as debtor and the Indenture Trustee, as secured
party are in appropriate form for filing with the Secretary of State of the
State of [Sponsor] and the County [Sponsor], the interest of the Indenture
Trustee in the Loans and the proceeds thereof, and, to the extent that the
filing of a financing statement is effective to perfect an interest in the
other Trust property under Article 9 of the [Sponsor] Uniform Commercial
Code, the other Trust property, will be perfected upon the filing of such
financing statements in such filing offices; and upon the filing of the
UCC-3 partial release statements with respect to the interests of Sponsor's
secured lenders in such filing offices, no other interest of any other
purchaser from or creditor of the Sponsor or the Trust is of equal or prior
to the interest of the Trustee in the Loans and such other Trust property.
(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 __________, special Delaware 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 in good
standing as a limited liability company under the laws of the State of
Delaware.
(ii) Under the LLC Act and its related formation documents, the
Depositor has all necessary limited liability company power and authority to
execute and deliver, and to perform its obligations under, its formation
documents and the Basic Documents to which it is a party.
(iii) Under the LLC Act and its related formation documents, the
execution and delivery by the Depositor of its formation documents and the
Basic Documents to which it is a party, and the performance by it of its
obligations thereunder, have been duly authorized by all necessary limited
liability company action on the part of the Depositor.
(iv) 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. Sections 3801, et seq.
21
(v) The Trust Agreement authorizes the Trust to execute and deliver the
Indenture, the Sale and Servicing Agreement, [and] the Administration
Agreement [and the Spread Account Agreement], to issue the Certificates and
the Notes and to grant the trust estate to the Indenture Trustee as security
for the Notes.
(vi) 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.
(vii) 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.
Section 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 general intangibles,
accounts or 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 general intangibles, accounts or 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 general intangibles, accounts or chattel
paper, the security interest of the Indenture Trustee will be prior to the
security interest of all other creditors, and excluding purchase money
security interests under Section 9-312(4) of the Delaware UCC, and
temporarily perfected security interests pursuant to Section 9-306(3) of the
Delaware UCC (as to the priority of temporarily unrecorded security
interests in proceeds), subject to customary and usual exceptions.
(viii) 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.
(ix) 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.
(x) The Trust Agreement is a legal, valid and binding agreement of the
parties thereto, enforceable against such parties, in accordance with its
terms.
(xi) 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.
22
(g) OPINION OF SPECIAL COUNSEL TO THE DEPOSITOR. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of __________, special __________ counsel to the Depositor, in
form and substance satisfactory to counsel for the Underwriters, substantially
to the effect that (i) the blank forms of Loans reviewed by such counsel comply,
or complied when in use, in all respects with all applicable disclosure
requirements under the Federal Consumer Protection Act, 15 U.S.C. Section 1601
et. seq., and Regulation Z issued pursuant thereto, as interpreted in the
Official Staff Commentary, and applicable ___________ disclosure laws and (ii)
upon consummation of the transactions contemplated by the Basic Documents, the
Trust had a perfected security interest in the Financial Vehicles financed under
Loans originated in _________.
(h) 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 ________________, special bankruptcy counsel to the
Depositor, in form and substance satisfactory to counsel for the Underwriters,
with respect to certain bankruptcy matters.
(i) 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 ___________, 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.
(j) 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 __________, 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 corporation under the laws of the State of
___________.
(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
23
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.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
United States of America or any state thereof was or is required for the
execution, delivery or performance by the Indenture Trustee of the
Indenture.
(vi) Each of the Basic Documents to which Indenture Trustee is a party
has been duly executed and delivered by Indenture Trustee and constitutes a
legal, valid and binding obligation of Indenture Trustee enforceable against
the Indenture Trustee in accordance with its respective terms, except that
certain of such obligations may be enforceable solely against the [assets of
the Trust] and except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(vii) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the terms of the Indenture.
(k) 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 ___________________, 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 banking corporation 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
24
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
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 Trustee, of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement do not require any
consent, approval or authorization of, or any registration or filing with,
any Delaware or United States Federal governmental authority having
jurisdiction over the trust power of the Owner Trustee, other than those
consents, approvals or authorizations as have been obtained and the filing
of the Certificate of Trust with the Secretary of State of the State of
Delaware.
(vi) 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 of
Association or By-laws of the Owner Trustee.
(l) 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 ▇▇▇▇▇ & ▇▇▇▇ 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.
(m) RELIANCE LETTERS. Counsel to each of the Depositor and the Sponsor
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.
(n) MAINTENANCE OF RATING. At the Closing Time, the Class __ Notes
shall be rated "____" by ▇▇▇▇▇'▇, "____" by Fitch and "____" by
25
Standard and Poor's and the Class __ Certificates shall be rated "____" by
▇▇▇▇▇'▇, "____" by Fitch and "____" by Standard and Poor's, 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 and the Certificates have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Notes, the Certificates or any other securities of the
Depositor, the Sponsor or any of their respective Affiliates 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, the Sponsor or any of their respective Affiliates.
(o) 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 or the Sponsor, furnish such documents and take
all such other actions.
(p) 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.
Section 6. INVESTOR INFORMATION. Each Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets in connection with an offering of the Offered
Securities, subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I and certain affiliates, as made applicable to other
issuers and underwriters by the Commission in response to the request of the
Public Securities Association dated May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by any Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term
26
Sheets or Collateral Term Sheets that have been prepared or delivered to
prospective investors by any Underwriter.
(c) Each Underwriter shall provide to the Depositor any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided to
investors no later than the Business Day preceding the date such Computational
Materials, ABS Term Sheets or Collateral Term Sheets are required to be filed
pursuant to the applicable No-Action Letters. Each Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed.
(d) In the event that the Depositor or any Underwriter discovers an
error in the Computational Materials, ABS Term Sheets or Collateral Term Sheets,
the Underwriter that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets and deliver
it to the Depositor for filing pursuant to Section 3(l).
Section 7. 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
(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 any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), 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 Computational Materials, ABS Term Sheets or
Collateral Term Sheets 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
7(d)) any such settlement is effected with the written consent of the
Depositor and the Sponsor; and
27
(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 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 (a) written information furnished to
the Depositor by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or (b) in the case of
Computational Materials, ABS Term Sheets or Collateral Term Sheets
distributed by any Underwriter, Derived Information (as defined below)
provided by any Underwriter expressly for use in the Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets and the untrue
statement or alleged untrue statement did not derive from an inaccuracy in
the Depositor-Provided Information (as defined below) used in the
preparation of such Computational Materials, ABS Term Sheets or Collateral
Term Sheets.
(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 7(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), or any 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 such Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or (ii) in
the Computational Materials, ABS Term Sheets or Collateral Term Sheets
distributed by any Underwriter to the extent that such untrue statement or
alleged untrue statement of a material fact was made in reliance upon and in
conformity with Derived Information provided by such Underwriter expressly for
use in the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statement or alleged untrue statement did not derive from
an inaccuracy in the Depositor-Provided Information used in the preparation of
such Computational Materials, ABS Term Sheets or Collateral Term Sheets. 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 Schedule A and not joint.
28
For purposes of this Agreement, as to each Underwriter, "Derived
Information" means such portion, if any, of the information delivered to the
Depositor by such Underwriter pursuant to Section 6 for filing with the
Commission on an Additional Materials 8-K and:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and
(ii) does not constitute Depositor-Provided Information.
"Depositor-Provided Information" means any computer tape (or other
information) furnished to any Underwriter by or on behalf of the Depositor
concerning the assets of the Depositor and used in preparing Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
(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 7(a), counsel
to the indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 7(b), counsel to the indemnified
parties shall be selected by the Depositor or the Sponsor, 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 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 8 (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 7(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
29
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 8. CONTRIBUTION. If the indemnification provided for in Section
7 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 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
30
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 Schedule A and not joint. The obligations of the
Depositor are in addition to any other liability it may otherwise have.
Section 9. 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 10. 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 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, North Carolina or New York authorities.
31
(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, 7,
8 and 9 shall survive such termination and remain in full force and effect.
Section 11. 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 Schedule A 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 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 12. 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, One First ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention
____________; notices to the Depositor shall be directed to _________,
attention _____________________.
Section 13. 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 7 and 8 and their heirs
and legal
32
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 7 and 8
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 14. 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 15. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not effect the construction hereof.
33
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.
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
FIRST UNION SECURITIES, INC.
By:
----------------------------------
Name:
Title:
34
SCHEDULE A
Principal Amount of Principal Amount of
Name of Underwriter Notes Certificates
------------------- ------------------- -------------------
First Union Securities, Inc... $ $
----------------------........
---------- -----------
Total................
$ $
---------- -----------
---------- -----------
SA-1
EXHIBIT A
POOLED AUTO SECURITES SHELF LLC
(Depositor)
Auto Receivable Asset-Back Notes
---------
Auto Receivable Asset Backed Certificates
--------
Series
--------
TERMS AGREEMENT
------- --, ----
To: Pooled Auto Securities Shelf LLC, 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: _______________ Auto Receivable Asset-Backed Notes,
Series _______.
PRINCIPAL AMOUNT: $___________________________ (approximate; subject
to a variance of plus
or minus 5%)
TERMS OF THE NOTES:
Original Interest Rate
Class Principal Amount or Formula
----- ---------------- -------------
A $
(approximate; subject to a
variance of plus or minus 5%)
TERMS OF THE CERTIFICATES:
Original Interest Rate
Class Principal Amount or Formula
----- ---------------- -------------
B $
(approximate; subject to a
variance of plus or minus 5%)
A-1
RATINGS:
Class ▇▇▇▇▇'▇ Fitch Standard & Poor's
----- ------- ----- -----------------
A
B
SERVICER: ________________________ (the "Servicer").
TRUSTEE: _________________________ (the "Trustee").
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
------------- --------------
First Union Securities Inc. ............................. $ $
------------ ------------
_____________________________............................ $ $
------------ ------------
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: __________%
LOANS: The simple interest motor vehicle installment loans (the
"Loans") sold by the Sponsor to the Depositor pursuant to the Receivables
Purchase Agreement, dated as of _______ __, ____, between the Depositor, as
purchaser, and the Sponsor, as seller, and conveyed by the
A-2
Depositor to the Trust pursuant to the Sale and Servicing Agreement, are more
fully described in Exhibit A to the Sale and Servicing Agreement.
DISTRIBUTION DATES: The ___ day (or, if such day is not a business day,
the next succeeding business day) of each month, commencing
with _______ __,_______.
DELIVERY DATE AND LOCATION: 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 ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
FIRST UNION SECURITIES, INC.,
as Representative of the several Underwriters
By:
-----------------------------------
Name:
Title:
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
By:
-------------------------------
Name:
Title:
A-4
