Exhibit 1.2
$[__________________]
[____________] TRUST 200[_]-[_]
[ ]% ASSET BACKED CERTIFICATES, CLASS [ ]
[ ]% ASSET BACKED CERTIFICATES, CLASS [ ]
CITIGROUP VEHICLE SECURITIES INC.
FORM OF UNDERWRITING AGREEMENT
[______________], 200[_]
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introduction. Citigroup Vehicle Securities Inc., a Delaware corporation
(the "Depositor") and a wholly owned subsidiary of Citigroup Financial Products
Inc., a Delaware corporation, proposes to cause [___________________] Trust
200[_]-[_] (the "Trust") to issue and sell $[_________] principal amount of its
[ ]% Asset Backed Certificates, Class [ ] (the "Class [ ] Certificates") and
$[____________] principal amount of its [ ]% Asset Backed Certificates, Class [
] (the "Class [ ] Certificates", and with the Class [ ] Certificates, the
"Certificates") to you (the "Underwriter"). The Certificates will represent
fractional undivided interests in the Trust.
The Trust Estate property will include, among other things, a pool of
retail installment sale contracts transferred to the Trust on the Closing Date
(the "Receivables"), the related security interests in the motor vehicles
financed thereby (the "Financed Vehicles"), certain monies received thereon on
and after ____________ (the "Cutoff Date"), all insurance proceeds and
liquidation proceeds with respect thereto, the related Receivables Files, the
Trust Accounts and proceeds of the foregoing. The Receivables and the other
Trust Estate property will be sold to the Trust by the Depositor. The
Receivables will be serviced for the Trust by [__________] (in such capacity,
the "Servicer"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement to be dated as of [________], 200[__] (as amended and
supplemented from time to time, the "Pooling and Servicing Agreement"), among
the Depositor, as depositor, the Servicer, as servicer, and
[__________________], as trustee (the "Trustee").
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, the Underwriter that:
(a) The Depositor meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
( ) on such Form, including a related preliminary base
prospectus and a preliminary prospectus supplement, for the registration under
the Act of the offering and sale of the Certificates. The Depositor may have
filed one or more amendments thereto, each of which amendments has previously
been furnished to you. The Depositor will next file with the Commission (i)
prior to the effectiveness of such registration statement, an amendment thereto
(including the form of final base prospectus and the form of final prospectus
supplement relating to the Certificates) or (ii) after the effectiveness of such
registration statement, either (A) a final base prospectus relating to the
Certificates in accordance with Rules 430A and 424(b)(1) or (4) under the Act or
(B) a final base prospectus and a final prospectus supplement relating to the
Certificates in accordance with Rules 415 and 424(b)(2) or (5).
In the case of clauses (ii) (A) and (B) above, the Depositor has included
in such registration statement, as amended at the Effective Date (as defined
herein), all information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Prospectus with respect to the
Certificates and the offering thereof. As filed, such amendment and form of
final prospectus supplement, or such final prospectus supplement, shall include
all Rule 430A Information, together with all other required information, with
respect to the Certificates and the offering thereof and, except to the extent
that the Underwriter shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary base prospectus and preliminary prospectus supplement, if
any, that have previously been furnished to you) as the Depositor has advised
you, prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-K Item
512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the date and time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
including all information deemed to be a part of such registration statement as
of the Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base Prospectus" shall
mean any prospectus referred to above contained in the Registration Statement at
the Effective Date, including any Preliminary Prospectus Supplement.
"Preliminary Prospectus Supplement" shall mean the preliminary prospectus
supplement, if any, to the Base Prospectus which describes the Certificates and
the offering thereof and is used prior to the filing of the Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the Certificates
that, together with the Base Prospectus, as amended at the time of such filing,
is first
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filed pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant
to Rule 424(b) is required, shall mean the prospectus supplement relating to the
Certificates, including the Base Prospectus, included in the Registration
Statement at the Effective Date. "Rule 430A Information" means information with
respect to the Certificates and the offering of the Certificates permitted to be
omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulations under the Act. Any reference herein to the
Registration Statement, the Base Prospectus, a Preliminary Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, such Preliminary Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act, and the respective
rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or 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; provided, however, that the Depositor makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Prospectus or any supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Depositor by the Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Prospectus or any supplement
thereto.
(c) This Agreement has been duly authorized, executed and delivered by the
Depositor.
(d) Immediately prior to the assignment of the Receivables to the Trust as
contemplated by the Pooling and Servicing Agreement, the Depositor (i) had good
title to, and was the sole owner of, each Receivable and the other property then
purported to be transferred by it to the Trust pursuant to the Pooling and
Servicing Agreement, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance (collectively, "Liens"), (ii) had not assigned to
any person any of its right, title or interest in the Receivables or property or
in the Receivables Purchase Agreement and (iii) will have the power and
authority to sell the
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Receivables and such property to the Trust, and upon the execution and delivery
of the Pooling and Servicing Agreement by the Trustee on behalf of the Trust,
the Trust will have acquired all of the Depositor's right, title and interest in
and to the Receivables and such property free and clear of any Lien (except for
the Lien of the Pooling and Servicing Agreement).
(e) Neither the Depositor nor anyone acting on behalf of the Depositor has
taken any action that would require qualification of the Pooling and Servicing
Agreement under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), or require registration of the Depositor or the Trust under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), nor
will the Depositor act, nor has the Depositor authorized any person to act, nor
will the Depositor authorize any person to act, in such manner.
(f) As of the Closing Date, the Depositor's representations and warranties
in the Basic Documents (as defined herein) will be true and correct.
3. Representations and Warranties of the Underwriter. The Underwriter
represents and warrants to, and agrees with, the Depositor that:
(a) It has not offered or sold, and will not offer or sell, any of the
Certificates to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances that have not resulted and will not result in an
offer to the public in the United Kingdom for the purposes of the Public Offers
of Securities Regulation 1995.
(b) It has complied and will comply with all applicable provisions of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ ("FSMA") with respect to anything done
by it in relation to the Certificates in, from or otherwise involving the United
Kingdom.
(c) It has only communicated and caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the FSMA) received
by it in connection with the issue or sale of any notes included in this
offering in circumstances in which section 21(1) of the FSMA does not apply to
it.
4. Purchase, Sale, and Delivery of the Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to the Underwriter, and the Underwriter agrees to purchase from the
Trust, Certificates in the principal amounts and at the purchase prices set
forth in Schedule I hereto. Delivery of and payment for the Certificates shall
be made at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on [________], 200[__] (the "Closing Date"). Delivery of
the Certificates shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Depositor. The
Certificates to be so delivered will be initially represented by one or more
Certificates registered in the name of Cede & Co., the nominee of the Depositor
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be
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represented by book entries on the records of DTC and participating members
thereof. Definitive Certificates will be available only under limited
circumstances.
5. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Certificates for sale to the public (which may include
selected dealers), as set forth in the Prospectus.
6. Covenants of the Depositor. The Depositor covenants and agrees with the
Underwriter that:
(a) The Depositor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, to
become effective. Prior to the termination of the offering of the Certificates,
the Depositor will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Depositor has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Depositor will file the Prospectus, properly completed, and any supplement
thereto, with the Commission pursuant to and in accordance with the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend or
supplement the Registration Statement, as filed, or the related Prospectus and
will not effect such amendment or supplement without your consent, which consent
will not unreasonably be delayed or withheld; the Depositor will also advise you
promptly of any request by the Commission for any amendment of or supplement to
the Registration Statement or the Prospectus or for any additional information;
and the Depositor will also advise you promptly of the effectiveness of the
Registration Statement (unless the Registration Statement has become effective
prior to Execution Time) and any amendment thereto, when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b) and of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threat of any
proceeding for that purpose, and the Depositor will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Depositor promptly will
notify you and will prepare and file, or cause to be prepared and filed, with
the Commission, subject to the second sentence of paragraph (a) of this Section
6, an amendment or supplement that will correct such statement or omission or
effect such compliance. Any such filing shall not operate as a waiver or
limitation of any right of the Underwriter hereunder.
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(d) As soon as practicable, but not later than fourteen months after the
Closing Date, the Depositor will cause the Trust to make generally available to
holders of the Certificates an earning statement of the Trust covering a period
of at least twelve months beginning after the Closing Date that will satisfy the
provisions of Section 11(a) of the Act.
(e) The Depositor will furnish to the Underwriter copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus Supplement, if any), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Underwriter requests. The Depositor will pay the expenses of
printing or other production of all documents relating to the offering.
(f) The Depositor will arrange for the qualification of the Certificates
for sale under the laws of such jurisdictions in the United States as you may
reasonably designate and will continue such qualifications in effect so long as
required for the distribution.
(g) For a period from the date of this Agreement until the retirement of
the Certificates, or until such time as the Underwriter shall cease to maintain
a secondary market in the Certificates, whichever occurs first, the Depositor
will deliver to you the monthly servicing report, the annual statements of
compliance and the annual independent certified public accountants' reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(h) So long as any of the Certificates are outstanding, the Depositor will
furnish to you (i) as soon as practicable after the end of the fiscal year all
documents required to be distributed to holders of the Certificates or filed
with the Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Depositor filed with any government or regulatory authority that is otherwise
publicly available, as you may reasonably request.
(i) The Depositor will cooperate with the Underwriter and use its best
efforts to permit the Certificates to be eligible for clearance and settlement
through The Depository Trust Company ("DTC").
7. Payment of Expenses. The Depositor will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriter, (iv)
the fees and disbursements of the Depositor's counsel and accountants, (v) the
qualification of the Certificates under the securities laws in accordance with
the provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection with
the preparation of any blue sky or legal investment survey, (vi) the printing
and delivery to the Underwriter of copies of the Registration Statement as
originally filed and of each amendment thereto, (vii) the printing and delivery
to the Underwriter of copies of any blue sky or legal investment survey prepared
in connection with the Certificates, (viii) any fees charged by rating agencies
for the rating of the Certificates, (ix) the fees and expenses, if
6
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., and (x) the fees and expenses of the Trustee and its
Counsel.
8. Conditions to the Obligation of the Underwriter. The obligation of the
Underwriter to purchase and pay for the Certificates will be subject to the
accuracy of the representations and warranties on the part of the Depositor
herein, to the accuracy of the statements of officers of the Depositor made
pursuant to the provisions hereof, to the performance by the Depositor of its
obligations hereunder and to the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriter agrees in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00 P.M.
New York City time on the date of determination of the public offering price, if
such determination occurs at or prior to 3:00 P.M. New York City time on such
date or (ii) 12:00 noon New York City time on the business day following the day
on which the public offering price was determined, if such determination occurs
after 3:00 P.M. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Sections 2(a) and 2(b) hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor or you, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of
any supplement thereto), there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly the
business or properties of the Trust or the Depositor which, in the judgment of
the Underwriter, materially impairs the investment quality of the Certificates
or makes it impractical or inadvisable to market the Certificates; (ii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of the Depositor on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriter, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates.
(d) The Depositor shall have furnished to the Underwriter the opinion of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Depositor, dated the
Closing Date and satisfactory in form and substance to the Underwriter and
counsel for the Underwriter, to the effect that:
7
(i) the Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
[__________];
(ii) each of the Receivables Purchase Agreement and the Pooling and
Servicing Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its 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);
(iii) the Master Spread Account Agreement dated as of [__], 200[_], as
amended among the Depositor, [__] (the "Security Insurer"), [__] and the
Trustee (the "Master Spread Account Agreement"), and the Series 200[_]-[_]
Supplement to Master Spread Account Agreement dated as of [__], 200[_] (the
"Supplement" and, together with the Master Spread Account Agreement, the
"Spread Account Agreement") among the parties to the Master Spread Account
Agreement have each been duly authorized, executed and delivered by the
Depositor, and the Spread Account Agreement constitutes a legal, valid and
binding obligation of the Depositor enforceable against the Depositor in
accordance with its 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);
(iv) the Insurance Agreement has been duly authorized, executed and
delivered by the Depositor and constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its 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);
(v) this Agreement has been duly authorized, executed and delivered by
the Depositor;
(vi) the direction by the Depositor to the Trustee to execute the
Certificates has been duly authorized by the Depositor and, when the
Certificates have been duly executed, authenticated and delivered by the
Trustee in accordance with the Pooling and Servicing Agreement and
delivered and paid for pursuant to this Agreement, the Certificates will be
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement;
(vii) the direction by the Depositor to the Trustee to authenticate
the Certificates has been duly authorized by the Depositor and, when the
Certificates have been duly executed and delivered by the Trustee,
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement, and delivered and paid for pursuant to this Agreement, the
Certificates will constitute legal, valid and binding
8
obligations of the Trust (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditor's rights generally from time to time in effect) and will
be entitled to the benefits of the Pooling and Servicing Agreement;
(viii) 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 the Receivables
Purchase Agreement, the Master Spread Account Agreement, the Supplement,
the Insurance Agreement and the Pooling and Servicing Agreement
(collectively, the "Basic Documents"), 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 Certificates by the Underwriter, the filing of the
UCC-1 financing statements relating to the security interests created
pursuant to the Spread Account Agreement, 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;
(ix) none of the execution and delivery of this Agreement, the Pooling
and Servicing Agreement, the Receivables Purchase Agreement, the Spread
Account Agreement or the Insurance Agreement and the consummation of any
other 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, any law binding on the
Depositor or the charter or bylaws of the Depositor or the terms of any
pooling and servicing agreement or other agreement or instrument known to
such counsel and to which the Depositor is a party or by which it is bound,
or any judgment, order or decree known to such counsel to be applicable to
the Depositor of any court, regulatory body, administrative agency,
governmental body, or arbitrator having jurisdiction over the Depositor;
(x) other than as disclosed in the Prospectus, there are no actions,
proceedings or investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court, administrative
agency or other tribunal (1) asserting the invalidity of any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents or the execution
and delivery thereof or (3) that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any Basic Document;
(xi) the Basic Documents conform in all material respects with the
descriptions thereof contained in the Prospectus;
(xii) the statements in the final Prospectus Supplement and in the
final Base Prospectus under the headings "Summary of Terms--Tax Status" and
"Material Federal Income Tax Consequences", to the extent they constitute
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
9
(xiii) assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, no qualification of the
Pooling and Servicing Agreement under the Trust Indenture Act is necessary;
(xiv) the Depositor is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus (and any
supplement thereto) and this Agreement become, an "investment company" as
defined in the Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act;
(xv) to the best of such counsel's knowledge and information, there
are no legal or governmental proceedings pending or threatened against the
Depositor that are required to be disclosed in the Registration Statement,
other than those disclosed therein;
(xvi) to the best of such counsel's knowledge and information, there
are no 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, the descriptions thereof or references thereto are
correct, and no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by reference;
(xvii) the Registration Statement has become effective under the Act
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Exchange Act and the Rules
and Regulations; and
(xviii) 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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of any jurisdiction other than the State
of New York, the Delaware
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General Corporation Law or the United States, to the extent such counsel deems
proper and specifies in such opinion, upon the opinion of other counsel of good
standing whom such counsel reasonably believes to be reliable and who are
satisfactory to counsel for the Underwriter and (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Depositor and public officials.
All references in this Section 8(d) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(e) You shall have received the opinion of [____________________], special
counsel for the [Seller], dated the Closing Date and satisfactory in form and
substance to the Underwriter and to counsel for the Underwriter, to the effect
that:
(i) The [Seller] 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 [Seller] has no subsidiaries in any form, whether wholly
owned or other than wholly owned, direct or indirect, other than
[__________________];
(iii) The [Seller] is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus (and any
supplement thereto) and this Agreement become, an "investment company" as
defined in the Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act;
(iv) The [Seller] 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 [Seller] is in all material respects
complying therewith; and the [Seller] 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 [Seller]; and
(v) none of the execution and delivery of the Pooling and Servicing
Agreement, the Receivables Purchase Agreement or the Insurance 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 [Seller] or the terms of any indenture or other agreement or
instrument known to such counsel and to which the [Seller] is a party or by
which it is bound or any judgment, order or decree known to such counsel to
be applicable to the [Seller] of any court, regulatory body, administrative
agency, governmental body, or arbitrator having jurisdiction over the
[Seller].
Such counsel shall also state that 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
11
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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
[__________________] or the United States, to the extent such counsel deems
proper and specifies in such opinion, upon the opinion of other counsel of good
standing whom such counsel reasonably believes to be reliable and who are
satisfactory to counsel for the Underwriter and (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the [Seller] and certificates of public officials.
All references in this Section 8(e) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(vi) the [Seller] has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of the
[Seller], with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(vii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the [Seller] and constitutes a legal, valid and
binding obligation of the [Seller], enforceable against the [Seller] in
accordance with its 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);
(viii) the Insurance Agreement has been duly authorized, executed and
delivered by the [Seller] and constitutes a legal, valid and binding
obligation of the [Seller], enforceable against the [Seller] in accordance
with its 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) the Receivables Purchase Agreement has been duly authorized,
executed and delivered by the [Seller] and constitutes a legal, valid and
binding obligation of the [Seller], enforceable against the [Seller] in
accordance with its 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);
(x) 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
12
contemplated herein or in any Basic Document to which the [Seller] 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
Certificates by the Underwriter, the filing of the UCC-3 partial release
statements relating to the release of the existing liens of the [Seller]'s
secured lenders on the Receivables and the other Trust Estate property, the
filing of the UCC-1 financing statements relating to the conveyance of the
Receivables and the other Trust Estate property by the [Seller] to the
Depositor pursuant to the Receivables Purchase Agreement and of the
Receivables and the other Trust Estate property by the Depositor to the
Trust and of the Receivables and the other Trust Estate property by the
Trust to the Trustee for the benefit of the Certificateholders pursuant to
the Pooling and Servicing Agreement, the filing of the UCC-1 financing
statements relating to the security interests created pursuant to the
Spread Account Agreement, 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; and
(xi) none of the execution and delivery of this Agreement, the Pooling
and Servicing Agreement, the Receivables Purchase Agreement or the
Insurance 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 [Seller].
(xii) the provisions of the Receivables Purchase Agreement are
effective to transfer to the Depositor all right, title and interest of the
[Seller] in and to the Receivables, and upon filing of the UCC-3 partial
release statements with respect to the interests of the [Seller]'s secured
lenders in the Receivables, the Receivables and, to the knowledge of such
counsel, the other Trust Estate property will be owned by the Depositor
free and clear of any Lien except for the Lien of the Pooling and Servicing
Agreement;
(xiii) the provisions of the Pooling and Servicing Agreement are
effective to transfer to the Trust all right, title and interest of the
Depositor in and to the Trust Estate property, and upon filing of the UCC-3
partial release statements with respect to the interests of the [Seller]'s
secured lenders in the Trust Estate property, the Receivables and, to the
knowledge of such counsel, the other Trust Estate property will be owned by
the Trust free and clear of any Lien except for the Lien of the Pooling and
Servicing Agreement;
(xiv) the provisions of the Pooling and Servicing Agreement are
effective to create, in favor of the Trustee for the benefit of the
Certificateholders as security for the Trust's obligations under the
Certificates, a valid security interest in the Receivables and that portion
of the other Trust Estate property that is subject to Article 9 of the
[________] Uniform Commercial Code (the "UCC Collateral");
(xv) the UCC-1 financing statements naming (A) the [Seller] 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 Trustee, as secured party
are in appropriate form for filing with the Secretary of State of the State
of the [Seller] and the County the [Seller], the interest
13
of the Trustee in the Receivables 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 Estate property under Article 9 of the [Seller]
Uniform Commercial Code, the other Trust Estate 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 [Seller]'s secured lenders in such filing offices, no other
interest of any other purchaser from or creditor of the [Seller] or the
Trust is of equal or prior to the interest of the Trustee in the
Receivables and such other Trust Estate property.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
[__________], the State of [____________], the State of [_____________] or the
United States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such counsel
reasonably believes to be reliable and who are satisfactory to counsel for the
Underwriter and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the [Seller] and certificates
of public officials.
All references in this Section 8(f) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(f) You shall have received an opinion addressed to you of
[__________________________], in its capacity as special federal tax counsel to
the Trust, to the effect that the statements in the final Prospectus Supplement
under the headings "Summary--Tax Status", "--ERISA Considerations" and the first
sentence of "Material Federal and State Income Tax Consequences" and in the
final Base Prospectus under the headings "Summary of Terms--Tax Status",
"--ERISA Considerations", "Material Federal Income Tax Consequences" and "ERISA
Considerations" (to the extent that such sections (other than such "ERISA
Considerations" sections) relate to federal income tax consequences), to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material federal income tax consequences to holders of
the Certificates.
(g) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, in its capacity as special counsel for the Underwriter, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of the
Certificates, the Prospectus (as amended or supplemented at the Closing Date)
and other related matters as the Underwriter may reasonably require, and the
Depositor shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(h) You shall have received an opinion addressed to you of
[_______________________], special counsel to the Trustee, dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) The Trustee is a banking corporation duly incorporated and validly
existing under the laws of the State of [______________].
14
(i) The Trustee has the full corporate trust power to accept the
offices of trustee and backup servicer under the Pooling and Servicing
Agreement and of collateral agent under the Spread Account Agreement and to
enter into and perform its obligations under the Pooling and Servicing
Agreement and the Spread Account Agreement.
(ii) The execution and delivery of the Pooling and Servicing Agreement
and the performance by the Trustee of its obligations under the Pooling and
Servicing Agreement and the Spread Account Agreement have been duly
authorized by all necessary corporate action of the Trustee and each has
been duly executed and delivered by the Trustee.
(iii) The Pooling and Servicing Agreement constitutes a valid and
binding obligations of the Trustee enforceable against the Trustee in
accordance with their terms under the laws of the State of
[_________________] and the federal law of the United States.
(iv) The execution and delivery by the Trustee of the Pooling and
Servicing Agreement does not require any consent, approval or authorization
of, or any registration or filing with, any [________________] or United
States federal governmental authority, other than the qualification of the
Trustee under the Trust Indenture Act.
(v) Each of the Certificates has been duly authenticated by the
Trustee.
(vi) Neither the consummation by the Trustee of the transactions
contemplated in the Pooling and Servicing Agreement nor the fulfillment of
the terms thereof by the Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter, bylaws
or other organizational documents of the Trustee or the terms of any
indenture or other agreement or instrument known to such counsel to which
the Trustee or any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be applicable to the
Trustee or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Trustee or any of its subsidiaries.
(vii) To the knowledge of such counsel there is no action, suit or
proceeding pending or threatened against the Trustee (as trustee under the
Pooling and Servicing Agreement or in its individual capacity) before or by
any governmental authority that, if adversely decided, would materially and
adversely affect the ability of the Trustee to perform its obligations
under the Pooling and Servicing Agreement.
(viii) The execution, delivery and performance by the Trustee of the
Pooling and Servicing Agreement will not subject any of the property or
assets of the Trust or any portion thereof to any lien created by or
arising under the Trustee that is unrelated to the transactions
contemplated in the Pooling and Servicing Agreement.
(ix) The Underwriter shall have received such opinions, addressed to
the Underwriter and dated the Closing Date, as are delivered to the Rating
Agencies.
15
(j) The Underwriter shall have received an opinion from
[_________________________], special counsel for the Depositor, dated the
Closing Date and satisfactory in form and substance to the Underwriter and
counsel for the Underwriter regarding the true-sale of the Receivables by
[________________] to the Depositor and by the Depositor to the Trust and the
conveyance by the Trust of the Receivables and the other Trust Estate property
to the Trustee for the benefit of the Certificateholders.
(k) The Underwriter shall have received an opinion from
[____________________], special counsel for the Depositor, dated the Closing
Date and satisfactory in form and substance to the Underwriter and counsel for
the Underwriter regarding substantive consolidation.
(l) The Underwriter shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the Depositor
in which such officer shall state that, to the best of his or her knowledge
after reasonable investigation:
(i) the representations and warranties of the Depositor contained in
this Agreement and the Basic Documents are true and correct; the Depositor
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied under such agreements at or prior to the
Closing Date;
(ii) since the date of the most recent financial information included
in the Prospectus, no material adverse change, or any development involving
a prospective material adverse change, in or affecting particularly the
business or properties of the Depositor or the Trust has occurred; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(m) The Underwriter shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the [Seller]
in which such officer shall state that, to the best of his or her knowledge
after reasonable investigation:
(i) the representations and warranties of the [Seller] contained in
the Basic Documents are true and correct; the [Seller] has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date;
(ii) since the date of the most recent financial information included
in the Prospectus, no material adverse change, or any development involving
a prospective material adverse change, in or affecting particularly the
business or properties of the [Seller] or the Trust has occurred; and
16
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(n) The Underwriter shall have received a fully executed Insurance
Agreement by and among the Depositor, the [Seller] and the Security Insurer,
dated as of [__], 200[_] (the "Insurance Agreement"), and all representations
and warranties thereunder or made pursuant thereto shall be true and correct,
and the Depositor shall have performed its obligations thereunder.
(o) The Underwriter shall have received evidence satisfactory to them that,
on or before the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the State of [_______________]
and the County of [____________], reflecting the sale of the Receivables and the
other Trust Estate property by the [Seller] to the Depositor and of the
Receivables and the other Trust Estate property by the Depositor to the Trust
and the pledge of the Receivables and the other Trust Estate property by the
Trust to the Trustee for the benefit of the Certificateholders.
(p) The Certificates shall have been rated "[ ]" by Standard & Poor's
Ratings Services and "[___]" by ▇▇▇▇▇'▇ Investors Service, Inc., respectively.
(q) At the Execution Time and at the Closing Date, [__________________]
shall have furnished to the Underwriter letters, dated respectively as of the
Execution Time and as of the Closing Date, substantially in the forms of the
drafts to which the Underwriter have previously agreed and otherwise in form and
substance satisfactory to the Underwriter and to counsel for the Underwriter.
(r) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Prospectus, there shall not have been any change or
any development involving a prospective change in or affecting the business or
properties of [______________] or the Depositor the effect of which is, in the
judgment of the Underwriter, so material and adverse as to make it impractical
or inadvisable to market the Certificates as contemplated by the Prospectus.
(s) Subsequent to the Execution Time, there shall not have been any
reduction or withdrawal by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act)
of the current rating of any securities issued or originated by the Depositor or
[____________________] or any notice given of any intended or potential
reduction in or withdrawal of any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
Prior to the Closing Date, the Depositor shall have furnished to the
Underwriter such further information, certificates and documents as the
Underwriter may reasonably request.
If any of the conditions specified in this Section 8 have not been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement are not reasonably satisfactory in all material respects in form and
substance to the Underwriter and counsel for the Underwriter, this
17
Agreement and all obligations of the Underwriter hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Depositor in writing or by telephone or
telegraph confirmed in writing.
9. Indemnification and Contribution. (a) The Depositor agrees to indemnify
and hold harmless the Underwriter, the directors, officers, employees and agents
of the Underwriter and each person who controls the Underwriter within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
preliminary Base Prospectus, the Preliminary Prospectus Supplement (if any), the
Base Prospectus or the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Depositor will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement in, or omission or alleged omission from, any of such documents, in
reliance upon and in conformity with written information furnished to the
Depositor by the Underwriter specifically for inclusion therein. This indemnity
agreement will be in addition to any liability that the Depositor may otherwise
have.
(b) The Underwriter agrees to indemnify and hold harmless the Depositor,
its directors, its officers and each person who controls the Depositor within
the meaning of either the Securities Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Depositor to the Underwriter, but only with
reference to written information relating to the Underwriter furnished to the
Depositor by the Underwriter specifically for inclusion in the Registration
Statement, the preliminary Base Prospectus, the Preliminary Prospectus
Supplement (if any), the Base Prospectus or the Prospectus or any amendment or
supplement thereto. This indemnity agreement will be in addition to any
liability that the Underwriter may otherwise have. The Depositor acknowledges
that the statements set forth in the first sentence of the last paragraph of the
cover page and the first two sentences of the second paragraph, the entire
fourth paragraph, that portion of each sentence of the seventh paragraph that
relates to the Underwriter and the entire eighth paragraph under the heading
"Underwriting" in the Prospectus Supplement constitute the only information
furnished in writing by the Underwriter for inclusion in the Prospectus (or in
any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party
18
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Depositor and the Underwriter agrees to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Depositor and the Underwriter may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on the one hand and by the Underwriter on the other
from the offering of the Certificates; provided, however, that in no case shall
any Underwriter be responsible for any amount in excess of the purchase discount
or commission applicable to the Certificates purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Depositor and the Underwriter shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Depositor on the one hand and of the
Underwriter on the other in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Depositor shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits received by
the Underwriter shall be deemed to be equal to the total purchase discounts and
commissions received by the Underwriter from the Depositor in connection with
the purchase of the Certificates hereunder. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Depositor on the one
19
hand or the Underwriter on the other. The Depositor and the Underwriter agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), 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 9, each person who controls the
Underwriter within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee and agent of the Underwriter shall have the
same rights to contribution as the Underwriter, and each person who controls the
Depositor within the meaning of either the Securities Act or the Exchange Act
and each officer and director of the Depositor shall have the same rights to
contribution as the Depositor, subject in each case to the applicable terms and
conditions of this paragraph (d).
10. Defaults of the Underwriter. If the Underwriter defaults in its
obligation to purchase the Certificates hereunder on the Closing Date and
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of the Depositor, except as
provided in Section 13. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
11. No Bankruptcy Petition. The Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of
all securities issued by the Depositor or by a trust for which the Depositor
was the depositor, which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Depositor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
12. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or any of its officers, and the Underwriter set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Depositor submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof
made by the Underwriter or the Depositor or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriter is not consummated, the
Depositor shall remain responsible for the expenses to be paid or reimbursed by
the Depositor pursuant to Section 7 and the respective obligations of the
Depositor and the Underwriter pursuant to Section 9 shall remain in effect. If
for any reason the purchase of the Certificates by the Underwriter is not
consummated (other than because of a failure to satisfy the conditions set forth
in items (ii), (iv) and (v) of Section 8(c)), the Depositor will reimburse the
Underwriter, upon demand, for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Certificates. Nothing contained in this Section 12 shall limit
the recourse of the Depositor against the Underwriter.
13. Notices. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered or telegraphed and confirmed to it
at Citigroup Global
20
Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and if sent to the
Depositor, will be mailed, delivered or telecopied to it at Citigroup Vehicle
Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Any such notice
will take effect at the time of receipt.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 9, and no other person
will have any right or obligations hereunder.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Depositor and the Underwriter in
accordance with its terms.
Very truly yours,
CITIGROUP VEHICLE
SECURITIES INC.
By:
--------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------------
Name:
Title:
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SCHEDULE I
Certificates Principal Amount Price (%)
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