EXHIBIT 1.1
EXECUTION COPY
HOUSEHOLD AUTOMOTIVE TRUST 2001-3
$200,000,000 2.3825% Class A-1 Notes
$147,000,000 2.78% Class A-2 Notes
$290,000,000 3.68% Class A-3 Notes
$183,000,000 4.37% Class A-4 Notes
UNDERWRITING AGREEMENT
Deutsche Banc Alex. Xxxxx Inc.,
As Representative of the Underwriters
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
October 18, 2001
Dear Sirs:
Household Finance Corporation, a corporation organized and
existing under the laws of Delaware, individually ("HFC") and as Master Servicer
(the "MASTER SERVICER"), Household Auto Receivables Corporation, a corporation
organized and existing under the laws of Nevada and a wholly owned subsidiary of
HFC, individually ("HARC") and as Seller (the "SELLER"), Household Automotive
Finance Corporation, a corporation organized and existing under the laws of
Delaware and a wholly owned subsidiary of HFC ("HAFC"), and Household Bank,
f.s.b., a federal savings bank ("HOUSEHOLD BANK"), agree with you as follows:
Section 1. ISSUANCE AND SALE OF NOTES. The Seller has
authorized the issuance and sale of $200,000,000 2.3825% Class A-1 Notes,
$147,000,000 2.78% Class A-2 Notes, $290,000,000 3.68% Class A-3 Notes and
$183,000,000 4.37% Class A-4 Notes (collectively, the "NOTES"). The Notes are to
be issued by Household Automotive Trust 2001-3 (the "TRUST") pursuant to an
Indenture, dated as of October 9, 2001, as supplemented by a Series Supplement
(the "INDENTURE") by and among HFC, the Master Servicer, the Trust and Xxxxx
Fargo Bank Minnesota, National Association, a national banking association, as
indenture trustee (the "INDENTURE TRUSTEE"). In addition to the Notes, the Trust
will also issue the Certificates (the "CERTIFICATES") pursuant to a Trust
Agreement, dated as of October 9, 2001, among the Seller, U.S. Bank Trust
National Association, a national banking association with its principal place of
business in Illinois, as Owner Trustee (the "OWNER TRUSTEE") and U.S. Bank Trust
National Association, a national banking association with its principal place of
business in Delaware, as Delaware Trustee (the "DELAWARE TRUSTEE"), as amended
and restated as of October 9, 2001 and as supplemented by a Series Supplement
(the "TRUST AGREEMENT"). The Notes and the Certificates are referred to herein
collectively as the "SECURITIES." The assets of the Trust will include a pool of
non-prime retail installment sales contracts secured by new or used
automobiles, light duty trucks and vans (the "RECEIVABLES") and certain monies
due thereunder on or after the close of business on September 30, 2001 (the
"CUT-OFF DATE").
As used herein, the term "SELLER AGREEMENTS" means the Master
Sale and Servicing Agreement dated as of October 9, 2001 among the Trust, the
Seller, the Master Servicer and Xxxxx Fargo Bank Minnesota, National
Association, as indenture trustee (the "MASTER SALE AND SERVICING AGREEMENT"),
the Master Receivables Purchase Agreement dated as of December 1, 1998 and
amended and restated as of March 29, 2001 between the Seller and HAFC, as such
agreement may be further amended or supplemented from time to time
(collectively, the "CSFB WAREHOUSE HAFC RECEIVABLES PURCHASE Agreement"), the
Master Receivable Purchase Agreement dated as of March 29, 2001 between the
Seller and Household Bank (the "CSFB WAREHOUSE HOUSEHOLD BANK RECEIVABLES
PURCHASE AGREEMENT", and together with the CSFB Warehouse HAFC Receivables
Purchase Agreement, the "CSFB WAREHOUSE RECEIVABLES PURCHASE AGREEMENTS"), the
Master Receivables Purchase Agreement dated as of December 12, 2000 between the
Seller and HAFC (the "CHASE WAREHOUSE RECEIVABLES PURCHASE AGREEMENT") and the
Master Receivables Purchase Agreement dated as of October 9, 2001 between the
Seller and HAFC (the "HAFC RECEIVABLES PURCHASE AGREEMENT", and together with
the CSFB Warehouse Receivables Purchase Agreements and the Chase Warehouse
Receivables Purchase Agreement, the "MASTER RECEIVABLES PURCHASE AGREEMENTS"),
the Trust Agreement and this Underwriting Agreement (this "AGREEMENT"); the term
"HAFC AGREEMENTS" means the Master Receivables Purchase Agreements, excluding
the CSFB Warehouse Household Bank Receivables Purchase Agreement and this
Agreement; the term "HFC AGREEMENTS" means the Master Sale and Servicing
Agreement, the Indenture and this Agreement.
HFC, the Seller, HAFC and Household Bank are direct or
indirect subsidiaries of Household International, Inc. ("HOUSEHOLD"). HFC, the
Seller, HAFC and Household Bank are collectively referred to herein as the
"HOUSEHOLD ENTITIES").
The Notes are being purchased by the Underwriters named in
Schedule 1 hereto, and the Underwriters are purchasing, severally, only the
Notes set forth opposite their names in Schedule 1, except that the amounts
purchased by the Underwriters may change in accordance with Section 10 of this
Agreement. Deutsche Banc Alex. Xxxxx Inc. is acting as representative of the
Underwriters and in such capacity, is hereinafter referred to as the
"REPRESENTATIVE."
The offering of the Notes will be made by the Underwriters,
and the Household Entities understand that the Underwriters propose to make a
public offering of the Notes for settlement on October 24, 2001.
None of the Certificates are being purchased by the
Underwriters hereby.
Defined terms used herein and not otherwise defined shall have
their respective meanings as set forth in Section 2.01 of the Series Supplement,
dated as of October 9, 2001, among the Master Servicer, the Trust, the Seller,
the Indenture Trustee, the Owner Trustee and the Delaware Trustee (the "SERIES
SUPPLEMENT").
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Section 2. REPRESENTATIONS AND WARRANTIES.
A. HAFC, Household Bank, where applicable, and the Seller,
individually, represent and warrant to, and agree with, the Underwriters as set
forth in this Section 2(A). Certain terms used in this Section 2(A) are defined
in the second paragraph of subsection 2(A)(i) below.
(i) A Registration Statement on Form S-3
(No. 333-58404) has (a) been prepared by the Seller on such
form in conformity with the requirements of the Securities Act
of 1933, as amended (the "SECURITIES ACT") and the rules and
regulations (the "RULES AND REGULATIONS") of the United States
Securities and Exchange Commission (the "COMMISSION")
thereunder, (b) been filed with the Commission and (c) been
declared effective by the Commission, and no stop order
suspending the effectiveness of the Registration Statement has
been issued, and no proceeding for that purpose has been
initiated or threatened, by the Commission. Copies of such
Registration Statement have been delivered by the Seller to
the Underwriters. There are no contracts or documents of the
Seller which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the
Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective
Date of the Registration Statement. The conditions for use of
Form S-3, as set forth in the General Instructions thereto,
have been satisfied.
As used herein, the term "EFFECTIVE DATE" means the date on
and time at which the Registration Statement became effective,
or the date on and the time at which the most recent
post-effective amendment to such Registration Statement, if
any, was declared effective by the Commission. The term
"REGISTRATION STATEMENT" means (i) the registration statement
referred to in the preceding paragraph, including the exhibits
thereto, (ii) all documents incorporated by reference therein
pursuant to Item 12 of Form S-3 and (iii) any post-effective
amendment filed and declared effective prior to the date of
issuance of the Notes. The term "BASE PROSPECTUS" means the
prospectus included in the Registration Statement. The term
"PROSPECTUS SUPPLEMENT" means the prospectus supplement dated
the date hereof, specifically relating to the Notes, as filed
with the Commission pursuant to Rule 424 of the Rules and
Regulations. The term "PROSPECTUS" means, together, the Base
Prospectus and the Prospectus Supplement.
All references in this Agreement to financial statements and
schedules and other information which is "contained,"
included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the Exchange Act
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
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(ii) On the Effective Date and on the
Closing Date, assuming compliance by each Underwriter with
Sections 3(a), 3(b) and 3(c) hereof on the Closing Date, the
Registration Statement, including documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, did or will comply in all material respects with
the applicable requirements of the Act and the Rules and
Regulations thereunder, and 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. Neither
the Prospectus or any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement is
filed pursuant to Rule 424(b) or on the Closing Date, will
include any untrue statement of material fact or omit to state
a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that HAFC, Household
Bank and the Seller make no representations or warranties as
to (a) the information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and
in conformity with information furnished in writing to HAFC,
Household Bank or the Seller by the Representative
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus or (b) information in
any Derived Information (as defined in Section 3(e)) provided
by the Underwriters except to the extent that the information
set forth therein is "Seller-Provided Information" (as defined
in Section 3(e)).
(iii) Each of HAFC and the Seller is a
corporation duly organized and validly existing and in good
standing under the laws of its jurisdiction of incorporation.
Household Bank is a federal savings bank duly organized and
existing under the federal laws of the United States of
America and is duly qualified to do business and is in good
standing as a federal savings bank. Each of HAFC, Household
Bank and the Seller has all requisite power and authority to
own its properties and conduct its business as presently
conducted and is duly qualified as a foreign corporation or
federal savings bank, as applicable, to transact business and
is in good standing in each jurisdiction which requires such
qualification, except where failure to have such requisite
power and authority or to be so qualified would not have a
material adverse effect on the business or consolidated
financial condition of HAFC, Household Bank or the Seller.
(iv) Neither HAFC, Household Bank nor the
Seller is in violation of its certificate of incorporation or
charter, as applicable, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it may be bound, or to which any of the
property or assets of the Seller, HAFC or Household Bank, as
the case may be, is subject, except where any such violation
or default would not have a material adverse effect on the
transactions contemplated by this Agreement.
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(v) The execution, delivery and performance
by the Seller of each Seller Agreement, the issuance of the
Securities and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all necessary action or proceedings and will not
conflict with or constitute a breach of, or default under, or,
other than as contemplated in the Registration Statement,
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Seller pursuant
to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Seller is a party or by
which it may be bound, or to which any of the property or
assets of the Seller is subject, nor will such action result
in any violation of the provisions of the certificate of
incorporation or by-laws of the Seller or any applicable law,
administrative regulation or administrative or court decree,
except where any such conflict, breach, default, encumbrance
or violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(vi) The execution, delivery and performance
by HAFC of each HAFC Agreement, the issuance of the Securities
and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all
necessary action or proceedings and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or, other than as contemplated by the
Registration Statement, assets of HAFC pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which HAFC is a party or by which it may
be bound, or to which any of the property or assets of HAFC is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of HAFC or any applicable
law, administrative regulation or administrative or court
decree, except where any such conflict, breach, default,
encumbrance or violation would not have a material adverse
effect on the transactions contemplated by this Agreement.
(vii) The execution, delivery and
performance by Household Bank of the CSFB Warehouse Household
Bank Receivables Purchase Agreement has been duly and validly
authorized by all necessary action or proceedings and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or, other than as contemplated
by the Registration Statement, assets of Household Bank
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which Household
Bank is a party or by which it may be bound, or to which any
of the property or assets of Household Bank is subject, nor
will such action result in any violation of the provisions of
the charter or by-laws of Household Bank or any applicable
law, administrative regulation or administrative or court
decree, except where any such conflict, breach, default,
encumbrance or violation would not have a material adverse
effect on the transactions contemplated by this Agreement.
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(viii) Each Seller Agreement has been, or
when executed and delivered, will have been, duly executed and
delivered by the Seller; and each Seller Agreement
constitutes, or, when executed and delivered, will constitute,
legal, valid and binding instruments enforceable against the
Seller in accordance with their respective terms, subject as
to enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (B) to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (C) with
respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities laws.
(ix) Each HAFC Agreement has been, or, when
executed and delivered, will have been duly executed and
delivered by HAFC; and each HAFC Agreement constitutes, or,
when executed and delivered, will constitute, legal, valid and
binding instruments enforceable against HAFC in accordance
with their respective terms, subject as to the enforceability
(A) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
generally, (B) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (C) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable
securities law.
(x) The CSFB Warehouse Household Bank
Receivables Purchase Agreement has been, or, when executed and
delivered, will have been duly executed and delivered by
Household Bank; and the CSFB Warehouse Household Bank
Receivables Purchase Agreement constitutes, or, when executed
and delivered, will constitute, a legal, valid and binding
instrument enforceable against Household Bank in accordance
with its terms, subject as to enforceability (A) to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and the
rights and remedies of creditors of thrifts, savings
institutions, or national banking associations from time to
time in effect, or as limited by the powers of the Federal
Deposit Insurance Company in its capacity as receiver or
conservator under the Federal Deposit Insurance Company Act of
1950, (B) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (C) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable
securities law.
(xi) HAFC and Household Bank have each
authorized the conveyance of the respective Receivables to be
conveyed by such Person to the Seller; the Seller has
authorized the conveyance of the Receivables to the Trust; and
the Seller has directed the Trust to issue and sell the
Securities.
(xii) Each of HAFC, Household Bank and the
Seller is solvent and will not become insolvent after giving
effect to the transactions contemplated by this Agreement and
the other Related Documents. The Seller has no indebtedness to
any Person other than pursuant to this Agreement and other
than
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pursuant to transactions in which the Seller transfers assets
to a trust which issues securities. Each of the Issuer, HAFC,
Household Bank and the Seller, after giving effect to the
transactions contemplated by this Agreement and the other
Related Documents, will have an adequate amount of capital to
conduct its business in the foreseeable future.
(xiii) Any taxes, fees and other
governmental charges in connection with the execution,
delivery and performance of any Seller Agreement, the
Indenture and the Securities shall have been paid or will be
paid by the Seller at or prior to the Closing Date.
(xiv) The Notes have been duly and validly
authorized, and, when validly executed, authenticated, issued
and delivered in accordance with the Indenture and as provided
herein will conform in all material respects to the
description thereof contained in the Prospectus and will be
validly issued and outstanding and entitled to the benefits of
the Indenture.
(xv) There are no legal or governmental
proceedings pending, or to the knowledge of HAFC, Household
Bank or the Seller threatened, to which HAFC, Household Bank
or the Seller is a party or of which any property of any of
them is the subject, other than proceedings which are not
reasonably expected, individually or in the aggregate, to have
a material adverse effect on the shareholder's equity or
consolidated financial position of such person and its
subsidiaries taken as a whole, or which would have a material
adverse effect upon the consummation of this Agreement.
(xvi) Xxxxxx Xxxxxxxx LLP is an independent
public accountant with respect to HAFC and Seller as required
by the Act and the Rules and Regulations.
(xvii) No consent, approval, authorization,
order, registration, filing, qualification, license or permit
of or with any court or governmental agency or body of the
United States is required for the issue and sale of the Notes,
or the consummation by HAFC, Household Bank or the Seller of
the other transactions contemplated by this Agreement, the
Master Receivables Purchase Agreements, the Master Sale and
Servicing Agreement, the Trust Agreement or the Indenture,
except for (A) the registration under the Act of the Notes,
(B) such consents, approvals, authorizations, orders,
registrations, qualifications, licenses or permits as have
been obtained or as may be required under state securities or
Blue Sky laws in connection with the purchase of the Notes and
the subsequent distribution of the Notes by the Underwriters
or (C) where the failure to obtain such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material
adverse effect on the business or consolidated financial
condition of HAFC and its subsidiaries taken as a whole or the
Seller or the transactions contemplated by such agreements.
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(xviii) (a) Seller has the power and
authority to sell the Receivables to the Trust, and (b)
following the conveyance of the Receivables to the Trust
pursuant to the Master Sale and Servicing Agreement, the Trust
will own the Receivables free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "LIENS") other than Liens created by
the Master Sale and Servicing Agreement.
(xix) As of the Cut-Off Date, each of the
Receivables will meet the eligibility criteria described in
the Prospectus.
(xx) None of HAFC, Household Bank or the
Seller will conduct their operations while any of the
Securities are outstanding in a manner that would require the
Seller or the Trust to be registered as an "investment
company" under the Investment Company Act of 1940, as amended
(the "1940 ACT") as in effect on the date hereof.
(xxi) Each of the Seller, HAFC and Household
Bank possesses all material licenses, certificates,
authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to
conduct the business now conducted by it and as described in
the Prospectus and none of the Seller, HAFC or Household Bank
has received notice of any proceedings relating to the
revocation or modification of such license, certificate,
authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, is
likely to materially and adversely affect the conduct of its
business, operations, financial condition or income.
(xxii) At the Closing Date, each of the
representations and warranties of HAFC set forth in the HAFC
Agreements, of Household Bank set forth in the CSFB Warehouse
Household Bank Receivables Purchase Agreement or of the Seller
set forth in the Seller Agreements will be true and correct in
all material respects.
(xxiii) Since the respective dates as of
which information is given in the Prospectus, (x) there has
not been any material adverse change in or affecting the
general affairs, business, management, financial condition,
stockholder's equity, results of operations, regulatory
situation or business prospects of HAFC and (y) HAFC has not
entered into any transaction or agreement (whether or not in
the ordinary course of business) material to HAFC that, in
either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Notes,
otherwise than as set forth or contemplated in the Prospectus.
B. HFC represents, warrants and agrees with the Underwriters,
that:
(i) HFC is a corporation duly organized and
validly existing and in good standing under the laws of its
jurisdiction of incorporation. HFC has all requisite power and
authority to own its properties and conduct its business as
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presently conducted and is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction which requires such qualification, except
where the failure to have such power and authority or to be so
qualified would not have a material adverse effect on the
business or consolidated financial condition of HFC and its
subsidiaries taken as a whole.
(ii) HFC is not in violation of its
certificate of incorporation or in default in the performance
or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which HFC
is a party or by which it may be bound, or to which any of the
property or assets of HFC is subject except where any such
violation or default would not have a material adverse effect
on the transactions contemplated by this Agreement.
(iii) The execution, delivery and
performance by HFC of the HFC Agreements, and the consummation
of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary action or
proceedings and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of HFC pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which HFC is a
party or by which it may be bound, or to which any of the
property or assets of HFC is subject, nor will such action
result in any violation of the provisions of the certificate
of incorporation or by-laws of HFC or any applicable law,
administrative regulation or administrative or court decree,
except where any such conflict, breach, default, encumbrance
or violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(iv) Each HFC Agreement has been, or, when
executed and delivered, will have been, duly executed and
delivered by HFC; and each HFC Agreement constitutes, or, when
executed and delivered, will constitute, legal, valid and
binding instruments enforceable against HFC in accordance with
their respective terms, subject as to enforceability (A) to
applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting creditors' rights generally,
(B) to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
(C) with respect to rights of indemnity under this Agreement
to limitations of public policy under applicable securities
laws.
(v) HFC will, upon request by any
Underwriter, provide to such Underwriter complete and correct
copies of all reports filed by it with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), during 1997, 1998, 1999 and 2000. Except as
set forth in or contemplated in such reports, there has been
no material adverse change in the consolidated financial
condition of HFC and its subsidiaries taken as a whole.
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(vi) There are no legal or governmental
proceedings pending, or to the knowledge of HFC threatened, to
which HFC is a party or of which any of its property is the
subject, other than proceedings which are not reasonably
expected, individually or in the aggregate, to have a material
adverse effect on the shareholder's equity or consolidated
financial position of HFC and its subsidiaries taken as a
whole or which would have a material adverse effect upon the
consummation of this Agreement.
(vii) No consent, approval, authorization,
order, registration, filing, qualification, license or permit
of or with any court or governmental agency or body of the
United States is required for the consummation by HFC of the
transactions contemplated by the HFC Agreements, except for
(A) the registration under the Act of the Notes, (B) such
consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses or permits as have been
obtained or as may be required under State securities or Blue
Sky laws in connection with the purchase of the Notes and the
subsequent distribution of the Notes by the Underwriters or
(C) where the failure to obtain such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material
adverse effect on the business or consolidated financial
condition of HFC and its subsidiaries taken as a whole or the
transactions contemplated by such agreements.
(viii) Xxxxxx Xxxxxxxx LLP is an independent
public accountant with respect to HFC as required by the Act
and the Rules and Regulations.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS.
Each Underwriter severally, and not jointly, represents and warrants to, and
agrees with the other Underwriters, HAFC, the Seller, HFC and Household Bank
that:
(a) As of the date hereof and as of the Closing Date that such
Underwriter has complied and will comply with all of its obligations arising
hereunder and in accordance with the Act, the Exchange Act, and the Rules and
Regulations and, with respect to the Derived Information provided by such
Underwriter, such Derived Information is accurate in all material respects
(taking into account the assumptions explicitly set forth in the Derived
Information, except for any errors therein attributable to errors or mistakes in
the Seller-Provided Information). The Derived Information provided by such
Underwriter to the Seller constitutes a complete set of all Derived Information
required to be filed with the Commission pursuant to the No-Action Letters.
(b) Such Underwriter shall provide the Seller no later than
one Business Day after any Collateral Term Sheet is delivered to a prospective
investor, or in the case of any Structural Term Sheets and Computational
Materials no later than one Business Day before the date on which the Prospectus
is required to be filed pursuant to Rule 424, all such Derived Information
delivered to a prospective investor by it during the period commencing on the
Effective Date and ending on the date the Prospectus is filed with the
Commission. Such Underwriter shall deliver to the Seller a hard copy and, in a
mutually agreed upon format, a disk or electronic transmission of such Derived
Information.
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(c) Assuming the accuracy of the Seller-Provider Information
used in the preparation of Derived Information, the Derived Information,
delivered by such Underwriter, as of the date thereof, is accurate in all
material respects, taking into account the assumptions set forth in such Derived
Information, but without making any representations as to the appropriateness of
such assumptions.
(d) Each Underwriter acknowledges that none of HAFC, the
Seller, HFC or Household Bank will be deemed to have breached any representation
and warranty or to have failed to satisfy any other agreement contained herein,
to the extent any such breach or failure on the part of such party resulted
solely from an Underwriter's breach of the representation and warranty set forth
in subsection (a), (b) or (c) above.
(e) For purposes of this Agreement, "DERIVED INFORMATION"
means the type of information defined as Collateral Term Sheets, Structural Term
Sheets or Computational Materials (as such terms are interpreted in the
No-Action Letters). The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM
SHEET" shall have the respective meanings assigned to them in the February 13,
1995 letter (the "PSA LETTER") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf
of the Public Securities Association (which letter, and the Commission staff's
response thereto, were publicly available February 17, 1995), and with respect
to "Collateral Term Sheet" includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. The term
"COMPUTATIONAL MATERIALS" has the meaning assigned to it in the May 17, 1994
letter (the "Xxxxxx Letter" and together with the PSA Letter, the "NO-ACTION
LETTERS") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the Commission staff's response thereto, were publicly available May
20, 1994). "SELLER-PROVIDED INFORMATION" means the information contained on any
computer tape furnished to the Underwriters by the Seller concerning the assets
comprising the Issuer.
Section 4. PURCHASE AND SALE. The Underwriters' commitment to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Household Entities
herein contained and shall be subject to the terms and conditions herein set
forth. The Seller agrees to instruct the Trust to issue the Notes to the
Underwriters, and the Underwriters agree to purchase the Notes on the date of
issuance thereof. The purchase prices for the Notes shall be as set forth on
Schedule 1 hereto.
Section 5. DELIVERY AND PAYMENT. Payment of the purchase price
for, and delivery of, any Notes to be purchased by the Underwriters shall be
made at the office of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Americas, New
York, New York, or at such other place as shall be agreed upon by the
Representative and the Household Entities, at 10:00 a.m. New York City time on
October 24, 2001 (the "CLOSING DATE"), or at such other time or date as shall be
agreed upon in writing by the Representative and the Household Entities. Payment
shall be made by wire transfer of same day funds payable to the account
designated by HARC. Each of the Notes so to be delivered shall be represented by
one or more global Notes registered in the name of Cede & Co., as nominee for
The Depository Trust Company.
The Household Entities agree to have the Notes available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 12:00 P.M. New York City time on the business day prior to the
Closing Date.
11
Section 6. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer
the Notes for sale to the public as set forth in the Prospectus.
(b) Each Underwriter represents and agrees that (i) it has not
offered or sold and, prior to the expiry of six months from the Closing Date,
will not offer or sell any Notes 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 purpose of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom any document received by it in
connection with the issue of the Notes, to a person who is of a kind described
in the Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1995 or to a person to whom such document may
otherwise lawfully be issued, distributed or passed on.
Section 7. COVENANTS OF THE HOUSEHOLD ENTITIES. Each of HFC,
the Seller and HAFC, covenants with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by
the Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the Underwriters of such timely
filing; to cause to be made no further amendment or any supplement to the
Registration Statement or to the Prospectus during the period in which the
Underwriters are required to deliver any such amendment or supplement to those
persons to whom the Underwriters have offered the Notes pursuant to Section 4(3)
of the Securities Act (the "DELIVERY PERIOD") except as permitted herein; to
give prior notice to the Underwriters of the filing of any amendment to the
Registration Statement which is filed or becomes effective during the Delivery
Period or any supplement to the Prospectus or any amended Prospectus which is
filed during the Delivery Period and to furnish the Underwriters with copies
thereof; to file promptly all reports and any global proxy or information
statements required to be filed by the Seller with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus; and to promptly advise the Underwriters of its receipt of notice
of the issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Notes for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose; (iv) any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the event of the
issuance of any stop order or of any order preventing or suspending the use of
the Prospectus or suspending any such qualification, the Seller promptly shall
use its best efforts to obtain the withdrawal of such order by the Commission.
B. If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then
12
supplemented would include any 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 shall be
necessary to supplement such Prospectus to comply with the Act or the rules
thereunder, the Seller shall be required to notify the Underwriters and upon the
Underwriters' request to prepare and furnish without charge to the Underwriters
as many copies as the Underwriters may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which shall correct such
statement or omission or effect such compliance.
C. As soon as practicable, but in any event within 120 days of
the close of the period covered thereby, the Seller will make generally
available to Noteholders and to the Underwriters an earnings statement or
statements of the Trust which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
D. The Seller will furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by the
Underwriters or dealer may be required by the Act, as many copies of the
Prospectus and any supplement thereto as the Underwriters may reasonably
request.
E. The Household Entities, jointly and severally, agree to pay
all expenses incidental to the performance of their obligations under this
Agreement, including without limitation (i) expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus, and any document
incorporated by reference in the Prospectus (including exhibits thereto), (ii)
any fees charged by any rating agency for the rating of the Notes, (iii) any
expenses (including reasonable fees and disbursements of counsel not to exceed
$10,000) incurred by the Underwriters in connection with qualification of the
Notes for sale under the laws of such jurisdictions as the Underwriters
designate, (iv) the fees and expenses of (A) Xxxxx Xxxxxxxxxx LLP as special
counsel for the Household Entities and (B) Xxxxxx Xxxxxxxx LLP, (v) the fees and
expenses of the Indenture Trustee and any agent of the Indenture Trustee and the
fees and disbursements of counsel for the Indenture Trustee in connection with
the Indenture, the Trust Agreement and the Notes, and (vi) the fees and expenses
of the Owner Trustee and any agent of the Owner Trustee and the fees and
disbursements of counsel for the Owner Trustee in connection with the Indenture,
the Trust Agreement and the Notes (it being understood that, except as provided
in this paragraph (E) and in Sections 9 and 10 hereof, each Underwriter will pay
its own expenses, including the expense of preparing and reproducing this
Agreement, the fees and expenses of counsel for the Underwriters, any transfer
taxes on resale of any of the Notes by it and advertising expenses connected
with any offers that the Underwriters may make).
F. The Seller will take all reasonable actions requested by
the Underwriters to arrange for the qualification of the Notes for sale under
the laws of such jurisdictions within the United States or as necessary to
qualify for the Euroclear System or Clearstream Banking, societe anonyme and as
the Underwriters may designate, will maintain such qualifications in effect so
long as required for the distribution of the Notes and will arrange for the
determination of the legality of the Notes for purchase by institutional
investors.
13
G. For so long as the Notes are outstanding, HFC, the Seller
and HAFC will furnish to the Underwriters (i) as soon as practicable after the
end of each fiscal year of the Trust, all documents required to be distributed
to Noteholders under the Master Sale and Servicing Agreement or the Indenture
and (ii) as soon as practicable after filing, any other information concerning
the Household Entities filed with any government or regulatory authority which
is otherwise publicly available, as the Underwriters may reasonably request.
H. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
I. If, between the date hereof or, if earlier, the dates as of
which information is given in the Prospectus and the Closing Date, to the
knowledge of the Seller, there shall have been any material change, or any
development involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of any of the Household Entities, the Seller will give prompt written
notice thereof to the Underwriters.
J. The Seller, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Act and the Rules
and Regulations thereunder.
K. To the extent, if any, that the ratings provided with
respect to the Notes by the Rating Agency that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other actions
by the Seller or HAFC, the Seller shall use its best efforts to furnish or cause
to be furnished such documents and take any such other actions.
L. Other than any warehouse financings, neither HAFC nor the
Seller will, without the prior written consent of the Representative, contract
to sell any automobile receivable-backed certificates or notes or other similar
securities either directly or indirectly for a period of five (5) business days
after the later of the termination of the underwriting syndicate or the Closing
Date.
M. So long as any of the Notes are outstanding, if so
requested, HFC, the Seller and HAFC, as applicable, shall furnish to the
Underwriters as soon as such statements are furnished to the Trustee: (i) the
annual statement as to compliance of the Master Servicer delivered to the
Trustee pursuant to Section 4.10(a) of the Master Sale and Servicing Agreement,
and (ii) the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 4.11(a) of the Master Sale and
Servicing Agreement with respect to the Master Servicer.
N. The Seller will, at the expense of the Underwriters, file
the Derived Information provided to it by the Underwriters under Section 3 with
the Commission pursuant to a Current Report on Form 8-K not later than 5:00 p.m.
on the day the Prospectus is delivered to the Underwriters; PROVIDED, HOWEVER,
that as a condition to the filing of the Derived Information by the Seller, the
Seller must receive a letter from a firm of independent certified public
accountants reasonably acceptable to the Seller, which letter shall be
satisfactory in form and
14
substance to the Seller, HFC and their counsel, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Seller, as a result of which they have determined the accuracy
in all material respects of the numerical and financial information included in
the Derived Information provided by the Underwriters to the Seller for filing
with the Commission.
The Seller shall not be obligated to file any Derived
Information that has been determined to contain any material errors or omission;
PROVIDED, HOWEVER, that, at the request of an Underwriter the Seller shall file
Derived Information containing material errors or omissions if clearly marked
"superseded by materials dated ________" and accompanied by corrected Derived
Information that is marked "these materials supersede and correct the materials
dated ____________.
Section 8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Notes on the Closing Date
pursuant to this Agreement are subject to (i) the material accuracy of the
representations and warranties on the part of the Household Entities herein
contained as of the date and time that this Agreement is executed and delivered
by the parties hereto (the "EXECUTION TIME"), (ii) the material accuracy of the
statements of officers of the Household Entities made pursuant hereto, (iii) the
performance by the Household Entities of all of their respective obligations
hereunder, and the performance by the Household Entities of all of their
respective obligations under the Seller Agreements, HAFC Agreements, HFC
Agreements and the CSFB Warehouse Household Bank Receivables Purchase Agreement
and (iv) the following conditions as of the Closing Date:
A. 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 threatened by the Commission.
B. Each of the Household Entities shall have delivered a
certificate, dated the Closing Date signed by its President or any Vice
President and its principal financial or principal accounting officer or its
Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary
to the effect that the signers of such certificate, on behalf of the named
Household Entity, have carefully examined the Related Documents, the Prospectus
and the Registration Statement, stating that:
(i) the representations and warranties of
such Household Entity in this Agreement are true and correct
in all material respects at and as of the date of such
certificate as if made on and as of such date (except to the
extent they expressly relate to an earlier date);
(ii) such Household Entity has complied, in
all material respects, with all the agreements and satisfied,
in all material respects, all the conditions on its part to be
performed or satisfied at or prior to the date of such
certificate;
(iii) nothing has come to the attention of
such Household Entity that would lead it to believe that the
Registration Statement contains any untrue
15
statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and
(iv) the Registration Statement is effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, or, to the
knowledge of the xxxxxx, threatened.
C. Xxxx Xxxxxx, Vice President - Corporate Law and Assistant
Secretary of Household International, Inc., shall have delivered a favorable
opinion with respect to clauses (i) through (xi) of this paragraph (c), and
Xxxxx Xxxxxxxxxx LLP, special counsel to the Household Entities, shall have
delivered a favorable opinion with respect to clauses (xii) through (xiii) of
this paragraph (c) each opinion shall be dated the Closing Date and shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) each of HFC, HAFC and the Seller is duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with corporate power and authority to own its properties, to
conduct its business and to enter into and perform its
obligations under the HFC Agreements, HAFC Agreements or
Seller Agreements, as applicable, except where failure to have
such power and authority or to be so qualified will not have a
material adverse effect, as applicable, on the business or
consolidated financial condition of HFC and its subsidiaries,
taken as a whole;
(ii) Household Bank has been duly organized
as a federal savings bank and is in good standing under the
federal laws of the United States of America, with full power
and authority to own its properties, to conduct its business
and to enter into and perform its obligations under the CSFB
Warehouse Household Bank Receivables Purchase Agreement,
except where failure to have such power and authority or to be
so qualified will not have a material adverse effect on the
business or consolidated financial condition of Household Bank
and its subsidiaries, taken as a whole;
(iii) each of the HFC Agreements, HAFC Agreements, Seller
Agreements and the CSFB Warehouse Household Bank Receivables
Purchase Agreement has been duly authorized, executed and
delivered by HFC, HAFC, the Seller or Household Bank, as
applicable, and each such agreement constitutes the valid and
binding obligation of HFC, HAFC, the Seller or Household Bank,
as applicable, enforceable against HFC, HAFC, the Seller or
Household Bank, as applicable, in accordance with its
respective terms, except, in each case, that as to
enforceability (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and the rights and remedies of creditors of
thrifts, savings institutions, or national banking
associations from time to time in effect, or as limited by the
powers of the Federal Deposit Insurance Company in its
capacity as receiver or conservator under the Federal Deposit
Insurance
16
Company Act of 1950, (B) the remedy of specific performance
and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought, and
(C) the enforceability as to rights to indemnification under
each of the HFC Agreements, HAFC Agreements, Seller
Agreements, the CSFB Warehouse Household Bank Receivables
Purchase Agreement and any other agreements calling for
indemnification may be subject to limitations of public policy
under applicable securities laws;
(iv) the issuance and sale of the Notes have
been duly authorized and, when executed and authenticated in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement,
will be validly issued and outstanding, entitled to the
benefits of the Indenture, enforceable in accordance with
their terms subject, as to enforceability (A) to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and the
rights and remedies of creditors of thrifts, savings
institutions or national banking associations and (B) to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(v) neither the execution nor the delivery
of the Underwriting Agreement, the Master Receivables Purchase
Agreements, the Trust Agreement, the Indenture, the Master
Sale and Servicing Agreement or the Series Supplement nor the
issuance or delivery of the Notes, nor the consummation of any
of the transactions contemplated herein or therein, nor the
fulfillment of the terms of the Notes, the Underwriting
Agreement, the Master Receivables Purchase Agreements, the
Trust Agreement, the Indenture, the Master Sale and Servicing
Agreement or the Series Supplement will conflict with or
violate any term or provision of the charter or by-laws of the
Household Entities, or result in a breach or violation of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of any
of the Household Entities (except the lien of the Indenture)
pursuant to, any material statute currently applicable to any
of them or any order or regulation known to such counsel to be
currently applicable to any of them of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Household Entities, or the terms of any
indenture or other agreement or instrument known to such
counsel to which the Household Entities is a party or by which
any of them or any of their properties are bound, except where
any such conflict, breach, violation, default or encumbrance
would not have a material adverse effect on the transactions
contemplated by this Agreement.
(vi) to the best knowledge of such counsel,
there is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or
any arbitrator with respect to the Underwriting Agreement, the
Trust, the Notes, the Master Receivables Purchase Agreements,
the Trust Agreement, the Indenture, the Master Sale and
Servicing Agreement or the Series Supplement or any of the
transactions contemplated herein or therein or with
17
respect to the Household Entities which, in the case of any
such action, suit or proceeding with respect to any of them,
would have a material adverse effect on the Noteholders or the
Trust or upon the ability of any of the Household Entities to
perform their obligations under any of such agreements, and
there is no material contract, franchise or document relating
to the Trust or property conveyed to the Trust which is not
disclosed in the Registration Statement or Prospectus; and the
statements included in the Registration Statement and
Prospectus describing statutes (other than those relating to
tax and ERISA matters), legal proceedings, contracts and other
documents fairly summarize the matters therein described;
(vii) the Registration Statement has become
effective under the Act; any required filing of the Prospectus
or any supplement thereto pursuant to Rule 424 has been made
in the manner and within the time period required by Rule 424;
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened; the Registration Statement and the
Prospectus (other than information included in Derived
Information and the financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules thereunder;
(viii) such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as of its date, includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading
(other than financial and statistical information contained
therein as to which such counsel need express no opinion);
(ix) to the best knowledge of such counsel,
no consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court
or governmental agency or regulatory body under the federal
law of the United States or the laws of the State of New York
is required in connection with the consummation of the
transactions contemplated in the Underwriting Agreement, the
Trust Agreement, the Indenture, the Master Receivables
Purchase Agreements, the Master Sale and Servicing Agreement
or the Series Supplement, except (A) such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits as have been made or
obtained or as may be required under the State securities or
blue sky laws of any jurisdiction in connection with the
purchase of the Notes by the Underwriters and the subsequent
distribution of the Notes by the Underwriters or (B) where the
failure to have such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses or
permits would not have a material adverse effect on the
Trust's interests in the Receivables or the transactions
contemplated by such agreements;
18
(x) the Notes, the Underwriting Agreement,
the Master Receivables Purchase Agreements, the Trust
Agreement, the Master Sale and Servicing Agreement and the
Indenture conform in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus;
(xi) the Indenture has been duly qualified
under the Trust Indenture Act of 1939 and the Issuer is not
required to be registered under the Investment Company Act of
1940;
(xii) the statements (a) in the Base
Prospectus under the captions "Summary of Terms -- Material
Federal Income Tax Consequences," "Summary of Terms -- ERISA
Considerations," "Material Federal Income Tax Consequences,"
"ERISA Considerations" and "Material Legal Aspects of the Auto
Loans" and (b) in the Prospectus Supplement under the captions
"Summary -- Federal Income Tax Consequences," "Summary --
ERISA Considerations," "Material Federal Income Tax
Consequences" and "ERISA Considerations" to the extent that
they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by counsel and represent a
fair and accurate summary of the matters addressed therein,
under existing law and the assumptions stated therein.
(xiii) no other filings or other actions,
with respect to the Indenture Trustee's interest in the
Receivables, are necessary to perfect the interest of the
Indenture Trustee in the Receivables, and proceeds thereof,
against third parties, except that appropriate continuation
statements must be filed in accordance with the applicable
state's requirements, which is presently at least every five
years; and
(xiv) the conditions to the use of a
registration statement on Form S-3 under the Act, as set forth
in the General Instructions to Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus.
There are no contracts or documents which are required to be
filed as exhibits to the Registration Statement pursuant to
the Act or the Rules and Regulations thereunder which have not
been filed.
In rendering such opinion, counsel may rely (A) as to matters
involving the application of the law of any jurisdiction other than, in the case
of Xxxx X. Xxxxxx, the laws of the State of Illinois and United States Federal
laws, and in the case of Xxxxx Xxxxxxxxxx LLP, the laws of the State of New
York, the laws of the State of California, the corporate law of the State of
Delaware and the United States Federal laws, to the extent deemed proper and
stated in such opinion, upon the opinion of other counsel of good standing
believed by such counsel to be reliable and acceptable to you and your counsel,
and (B) as to matters of fact, to the extent deemed proper and as stated
therein, on the certificates of responsible officers of the Trust, Household
Entities and public officials. References to the Prospectus in this paragraph C
include any supplements thereto.
D. Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, shall
have delivered a favorable opinion dated the Closing Date with respect to the
validity of the Notes, the
19
Underwriting Agreement, the Series Supplement, the Registration Statement, the
Prospectus and such other related matters as the Underwriters may reasonably
require and the Household Entities shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass on
such matters. In giving their opinion, Xxxxx Xxxxxxxxxx LLP may rely (i) as to
matters of Illinois and Delaware law (other than Delaware corporation law) upon
the opinions of counsel delivered pursuant to subsection (c) above, (ii) as to
matters involving the application of laws of any jurisdiction other than the
State of New York and the State of California, the United States Federal laws or
the corporation law of the State of Delaware, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good standing
believed to be reliable, and (iii) as to matters of fact, to the extent deemed
proper and as stated therein on certificates of responsible officers of the
Trust, Household Entities and public officials.
E. Counsel to the Indenture Trustee shall have delivered a
favorable opinion, dated the Closing Date, and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, the Household
Entities and their counsel, to the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a national banking association in good standing
under the laws of the United States of America.
(ii) The Indenture Trustee has full corporate trust power and
authority to enter into and perform its obligations under the
Indenture, including, but not limited to, its obligation to serve in
the capacity of the Indenture Trustee and to execute, issue,
countersign and deliver the Notes.
(iii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee and constitutes a legal, valid and
binding obligation of the Indenture Trustee enforceable against the
Indenture Trustee, in accordance with its terms, except that as to
enforceability such enforcement may (A) be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and (B) be limited by
general principles of equity (whether considered in a proceeding at law
or in equity).
(iv) The Notes have been duly authorized, executed and
authenticated by the Indenture Trustee on the date hereof on behalf of
the Trust in accordance with the Indenture.
(v) The execution, delivery and performance of the Indenture
and the Notes by the Indenture Trustee will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Indenture Trustee pursuant to the terms of the articles of association
or the by-laws of the Indenture Trustee or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over the Indenture Trustee or its property or
assets or any agreement or instrument known to such counsel, to which
the Indenture Trustee is a party or by which the Indenture Trustee or
any of its respective property or assets is bound.
20
(vi) No authorization, approval, consent or order of, or
filing with, any state or federal court or governmental agency or
authority is necessary in connection with the execution, delivery and
performance by the Indenture Trustee of the Indenture and the Notes.
F. Counsel to the Owner Trustee and the Delaware Trustee shall
have delivered a favorable opinion, dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, the
Household Entities and their counsel, to the effect that:
(i) Each of the Owner Trustee and the Delaware Trustee have
been duly incorporated and is validly existing as national banking
association in good standing under the laws of the United States of
America.
(ii) The Owner Trustee and the Delaware Trustee each have full
corporate trust power and authority to enter into and perform their
respective obligations under the Trust Agreement, including, but not
limited to, in the case of the Owner Trustee, its obligation to serve
in the capacity of Owner Trustee and to execute, issue, countersign and
deliver the Note on behalf of the Trust and, in the case of the
Delaware Trustee, its obligation to serve in the capacity of Delaware
Trustee.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by each of the Owner Trustee and the Delaware Trustee and
constitutes a legal, valid and binding obligation each of the Owner
Trustee and the Delaware Trustee, enforceable against each of the Owner
Trustee and the Delaware Trustee in accordance with its terms, except
that as to enforceability such enforcement may (A) be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally; (B) be
limited by general principles of equity, including applicable law
relating to fiduciary duties (whether considered in a proceeding at law
or in equity); and (C) public policy limitations on the enforceability
of provisions relating to indemnification and contribution.
(iv) The execution, delivery and performance of the Trust
Agreement by the Owner Trustee and the Delaware Trustee will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property
or assets of the Owner Trustee or the Delaware Trustee, as the case may
be, pursuant to the terms of the certificate of incorporation or the
by-laws of the Owner Trustee or the Delaware Trustee or any statute,
rule, regulation or order of any governmental agency or body, or any
court having jurisdiction over the Owner Trustee or the Delaware
Trustee or their respective property or assets or any agreement or
instrument known to such counsel, to which the Owner Trustee or the
Delaware Trustee is a party or by which the Owner Trustee or the
Delaware Trustee or any of their respective property or assets is
bound.
(v) No authorization, approval, consent or order of, or filing
with, any state or federal court or governmental agency or authority is
necessary in connection with the execution, delivery and performance by
the Owner Trustee or the Delaware Trustee of
21
the Trust Agreement or the execution and delivery by the Owner Trustee
of the Note on behalf of the Trust, other than the filing of the
certificate of trust with the Delaware Secretary of State.
G. The Owner Trustee shall have furnished to the Underwriters
and the Household Entities a certificate of the Owner Trustee, signed by one or
more duly authorized officers of the Owner Trustee, dated the Closing Date, as
to the due authorization, execution and delivery of the Trust Agreement by the
Owner Trustee and the acceptance by the Owner Trustee of the trusts created
thereby and such other matters as the Underwriters and the Household Entities
shall reasonably request.
H. The Delaware Trustee shall have furnished to the
Underwriters and the Household Entities a certificate of the Delaware Trustee,
signed by one or more duly authorized officers of the Delaware Trustee, dated
the Closing Date, as to the due authorization, execution and delivery of the
Trust Agreement by the Delaware Trustee and the acceptance by the Delaware
Trustee of the trusts created thereby and such other matters as the Underwriters
and the Household Entities shall reasonably request.
X. Xxxxx Fargo Bank Minnesota, National Association ("XXXXX
FARGO") shall have furnished to the Underwriters and the Household Entities a
certificate of Xxxxx Fargo, signed by one or more duly authorized officers of
Xxxxx Fargo, dated the Closing Date, as to the due authorization, execution and
delivery of the Indenture and the Master Sale and Servicing Agreement by Xxxxx
Fargo and the acceptance by the Indenture Trustee of the trusts created thereby
and the due execution and delivery of the Notes by the Indenture Trustee under
the Indenture and such other matters as the Underwriters shall reasonably
request.
J. The Class A-1 Notes shall have been rated "A-1" or its
equivalent, and the Class A-2 Notes, Class A-3 Notes and the Class A-4 Notes
shall have been rated "AAA" or its equivalent, in each case, by at least two
nationally recognized Ratings Agencies.
K. The Underwriters shall have received copies of letters
dated as of the Closing Date, from the Ratings Agencies stating the current
ratings of the Notes as set forth in Section I above.
L. The Underwriters shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel to the Household Entities, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Notes.
M. All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto, shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the Underwriters
shall have received such other information, opinions, certificates and documents
as they may reasonably request in writing.
N. The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the rules and
regulations under the Act and Section 2
22
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 shall be contemplated
by the Commission or by any authority administering any state securities or Blue
Sky law.
O. At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Underwriters a letter, dated as of the Closing Date, in form
and substance satisfactory to the Underwriters and counsel for the Underwriters.
If any condition specified in this Section 8 shall not have
been fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to each of the Household Entities at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 9 and
(ii) the provisions of Section 9, the indemnity set forth in Section 10, the
contribution provisions set forth in Section 10 and the provisions of Sections
13 and 16 shall remain in effect.
Section 9. REIMBURSEMENT OF EXPENSES. If the sale of the Notes
provided for herein is not consummated because any condition to the
Underwriter's obligations set forth in Section 8 hereof is not satisfied,
because of any termination pursuant to Section 12 hereof or because of any
refusal, inability or failure on the part of the Indenture Trustee or the
Household Entities to perform any agreement herein or comply with any provision
hereof other than by reason of a default by the Underwriters, the Household
Entities, jointly and severally, will reimburse the Underwriters upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Notes.
Section 10. INDEMNIFICATION.
A. The Household Entities jointly and severally agree to
indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of the Act or the Exchange Act,
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Notes), to which the Underwriters or any such controlling person may become
subject, under the Act or the Exchange Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) the omission or alleged
omission to state therein a material fact required to be stated or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, unless (a) such untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in conformity
with written information furnished to the Household Entities, or information, if
any, electronically transmitted to the Household Entities by the Underwriters
expressly for use in the Registration Statement (or any amendment thereof) or
(b) such untrue statement or omission or alleged untrue statement or omission
relates to information in any Derived Information provided by the Underwriters
to a
23
prospective investor (except to the extent that such untrue statements contained
therein are Seller-Provided Information); and shall reimburse the Underwriters
and each such controlling person promptly upon demand for any documented legal
or documented other expenses reasonably incurred by the Underwriters or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the foregoing indemnity with
respect to any untrue statement contained in or omission from the Prospectus
shall not inure to the benefit of the Underwriters if a Household Entity shall
sustain the burden of proving that the person asserting against the Underwriters
the loss, liability, claim, damage or expense purchased any of the Notes which
are the subject thereof and was not sent or given a copy of the appropriate
Prospectus (or the appropriate Prospectus as amended or supplemented) (the term
Prospectus as used in this clause shall not include documents incorporated by
reference thereto), if required by law, at or prior to the written confirmation
of the sale of such Notes (unless such Prospectus is amended or supplemented
after the Prospectus has been delivered pursuant to Rule 424(b)) to such person
and the untrue statement contained in or omission from such Prospectus was
corrected in the appropriate Prospectus (or the appropriate Prospectus as
amended or supplemented).
The foregoing indemnity agreement is in addition to any
liability which a Household Entity may otherwise have to the Underwriters or any
controlling person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not
jointly indemnify and hold harmless the Household Entities, the directors and
the officers of the Household Entities who signed the Registration Statement,
and each person, if any, who controls any Household Entity within the meaning of
the Act or the Exchange Act against any and all loss, claim, damage or
liability, or any action in respect thereof, to which a Household Entity or any
such director, officer or controlling person thereof may become subject, under
the Act or the Exchange Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Underwriter
Information (as defined below) or (ii) information in any Derived Information
provided by such Underwriter (except to the extent that such untrue statements
or errors contained therein are Seller-Provided Information), and shall
reimburse the applicable Household Entity, promptly on demand, and any such
director, officer or controlling person for any documented legal or other
documented expenses reasonably incurred by such Household Entity, or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. Underwriter Information means the
information set forth under the caption "Underwriting" in the Prospectus.
The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to any Household Entity or
any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this
Section 10 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 10, promptly
24
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify an indemnifying party
shall not relieve it from any liability which it may have under this Section 10
except to the extent it has been materially prejudiced by such failure; and
PROVIDED, FURTHER, that the failure to notify any indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 10.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party, unless such indemnified party reasonably objects to such
assumption on the ground that there may be legal defenses available to it which
are different from or in addition to those available to such indemnifying party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any fees and expenses
of counsel subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Representative, if the indemnified
parties under this Section 10 consist of the Underwriters or any of their
controlling persons, or by the Household Entities, if the indemnified parties
under this Section 9 consist of any of the Household Entities or any of the
Household Entities' directors, officers or controlling persons, but in either
case reasonably satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity
agreements contained in Sections 10A and B, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in
25
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which such indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
D. If the indemnification provided for in this Section 10
shall for any reason be unavailable to hold harmless an indemnified party under
Section 10A or B in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Household
Entities on the one hand and the Underwriters on the other from the offering of
the Notes or (ii) if the allocation provided by clause (i) above 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 Household Entities on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative benefits of the Underwriters and the Household
Entities shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Household
Entities shall be determined by reference to whether the 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 Household Entities or by
one of the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission and other equitable considerations.
The Household Entities and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 10D
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10D shall be deemed to include, for purposes
of this Section 10D, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
Each person, if any, who controls each Underwriter within the
meaning of the Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of a Household
Entity, each officer of a Household Entity who signed the Registration
Statement, and each person, if any, who controls a Household Entity within the
26
meaning of the Act or the Exchange Act shall have the same rights to
contribution as the applicable Household Entity.
Except in the case of any loss, claim, damage, liability or
expense resulting solely from a breach of the Underwriter's representation and
warranty set forth in Section 3(a), (b) or (c) hereof, in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
applicable to the Notes purchased by such Underwriter hereunder. 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.
E. The Underwriters severally confirm that the information set
forth (i) in the Prospectus relating to market making and (ii) under the caption
"Underwriting" in the Prospectus Supplement is correct and constitutes the only
information furnished in writing to a Household Entity by or on behalf of the
Underwriters specifically for inclusion in the Prospectus.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters participating in the public offering of the Notes
shall fail at the Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "DEFAULTED SECURITIES"), then the non-defaulting
Underwriter(s) shall have the right, within 24 hours thereafter, to make
arrangements 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 Underwriter(s) have not completed such arrangements within such
24-hour period, then:
(i) if the aggregate principal amount of
Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Notes to be purchased pursuant to this
Agreement, the non-defaulting Underwriter(s) shall be
obligated to purchase the full amount thereof, severally in
the same proportions as the principal amount of Notes set
forth opposite their respective names in Schedule 1 hereto, or
(ii) if the aggregate principal amount of
Defaulted Securities exceeds 10% of the aggregate principal
amount of the Notes to be purchased pursuant to this
Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter(s).
No action taken pursuant to this Section shall relieve the
defaulting Underwriter(s) from the liability with respect to any default of such
Underwriter(s) under this Agreement.
In the event of a default by an Underwriter as set forth in
this Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 12. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Seller and HAFC prior to delivery of and payment for the Notes if prior to
such time (i) trading in securities generally on
27
the New York Stock Exchange or the National Association of Securities Dealers
National Market System shall have been suspended or limited, or minimum prices
shall have been established on such exchange or market system; (ii) a banking
moratorium shall have been declared by either Federal, New York State
authorities or the State of California; (iii) there shall have occurred any
outbreak or material escalation of hostilities involving the United States of
America where armed conflict or the declaration of war appears imminent, if, the
effect of such event makes it, in the reasonable judgment of the Representative,
impractical or inadvisable to proceed with the completion of the sale and
payment for the Notes; or (iv) any other calamity or crisis having an effect on
the U.S. financial markets that, in the reasonable judgment of the
Representative, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities as contemplated by the Registration
Statement. Upon such notice being given, the parties to this Agreement shall
(except for any liability arising before or in relation to such termination) be
released and discharged from their respective obligations under this Agreement.
Section 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement or contained in certificates of officers of the Household
Entities submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the
Representative or controlling person of the Representative, or by or on behalf
of the Household Entities or any officers, directors or controlling persons and
shall survive delivery of any certificates to the Representative or any
controlling person.
Section 14. 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 to the
Underwriters at Deutsche Banc Alex. Xxxxx Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Asset Securitization Group, Fax: (000) 000-0000; if
sent to any Household Entity to 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000, Attention: General Counsel, Fax: (000) 000-0000.
Section 15. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Representative and the Household Entities, and their
respective successors or assigns. Nothing expressed or mentioned in this
Agreement is intended nor shall it be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 9 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or with respect to 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 parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and except as provided above for the benefit of no
other person, firm or corporation. No purchaser of Notes from the Representative
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT
28
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
Section 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 18. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
29
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Seller, HAFC and HFC in
accordance with its terms.
Very truly yours,
HOUSEHOLD FINANCE CORPORATION
By: /s/ X. X. Xxxx, Xx.
-------------------------------------------------------
Name: X. X. Xxxx, Xx.
Title: Vice President and Treasurer
HOUSEHOLD AUTO RECEIVABLES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Assistant Treasurer
HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President and Chief Financial
Officer
[Underwriting Agreement]
30
HOUSEHOLD BANK, F.S.B.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Assistant Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
DEUTSCHE BANC ALEX. XXXXX INC.
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: /s/ Xxxxxxx x'Xxxxxx
---------------------------------
Name: Xxxxxxx x'Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Authorized Signatory
[Underwriting Agreement]
31
Schedule 1
Purchase Price (excluding accrued interest)
Class A-1 Class A-2 Class A-3 Class A-4
Deutsche Banc Alex. Xxxxx Inc. 99.885000% 99.809219% 99.773750% 99.727813%
Banc One Capital Markets, Inc. 99.885000% 99.809219% 99.773750% 99.727813%
Credit Suisse First Boston Corporation 99.885000% 99.809219% 99.773750% 99.727813%
X.X. Xxxxxx Securities Inc. 99.885000% 99.809219% 99.773750% 99.727813%
Xxxxxxx Xxxxx Xxxxxx Inc. 99.885000% 99.809219% 99.773750% 99.727813%
Notional Principal Amount
Class A-1 Class A-2 Class A-3 Class A-4
Deutsche Banc Alex. Xxxxx Inc. $ 40,000,000 $ 29,400,000 $ 58,000,000 $ 36,600,000
Banc One Capital Markets, Inc. $ 40,000,000 $ 29,400,000 $ 58,000,000 $ 36,600,000
Credit Suisse First Boston Corporation $ 40,000,000 $ 29,400,000 $ 58,000,000 $ 36,600,000
X.X. Xxxxxx Securities Inc. $ 40,000,000 $ 29,400,000 $ 58,000,000 $ 36,600,000
Xxxxxxx Xxxxx Xxxxxx Inc. $ 40,000,000 $ 29,400,000 $ 58,000,000 $ 36,600,000
---------------------- --------------------- ----------------------- --------------------
Total $ 200,000,000 $ 147,000,000 $ 290,000,000 $ 183,000,000
Proceeds (excluding accrued interest)
Class A-1 Class A-2 Class A-3 Class A-4
Deutsche Banc Alex. Xxxxx Inc. $ 39,954,000.00 $ 29,343,910.39 $ 57,868,775.00 $ 36,500,379.56
Banc One Capital Markets, Inc. $ 39,954,000.00 $ 29,343,910.39 $ 57,868,775.00 $ 36,500,379.56
Credit Suisse First Boston Corporation $ 39,954,000.00 $ 29,343,910.39 $ 57,868,775.00 $ 36,500,379.56
X.X. Xxxxxx Securities Inc. $ 39,954,000.00 $ 29,343,910.39 $ 57,868,775.00 $ 36,500,379.56
Xxxxxxx Xxxxx Xxxxxx Inc. $ 39,954,000.00 $ 29,343,910.39 $ 57,868,775.00 $ 36,500,379.56
---------------------- --------------------- ----------------------- ---------------------
Total $ 199,770,000.00 $146,719,551.93 $289,343,875.00 $182,501,897.79
32
