EXHIBIT 1.1
FORM OF
UNDERWRITING AGREEMENT
FIRST SECURITY AUTO GRANTOR TRUST______
____% ASSET BACKED CERTIFICATES, CLASS A
____% ASSET BACKED CERTIFICATES, CLASS B
FIRST SECURITY BANK, N.A.
(Seller and Servicer)
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As Representative of the Several Underwriters
Listed in Schedule I (the "Representative")
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Ladies and Gentlemen:
First Security Bank, N.A. (the "BANK"), proposes to sell to the
several Underwriters listed on Schedule I hereto (the "UNDERWRITERS")
$__________ principal amount of ____% Asset Backed Certificates, Class A (the
"CLASS A CERTIFICATES") and $_________ principal amount of ____% Asset Backed
Certificates, Class B (the "CLASS B CERTIFICATES," and together with the Class A
Certificates, the "CERTIFICATES") to be issued by the First Security Auto
Grantor Trust _______. Each Certificate will represent an undivided interest in
the First Security Auto Grantor Trust _______ (the "TRUST"). The assets of the
Trust will include, among other things, a pool of retail motor vehicle
installment sale contracts and installment loans secured by new and used
automobiles and light trucks (collectively, the "RECEIVABLES") and certain
monies due thereunder after the close of business of the Bank on ___________
(the "CUTOFF DATE"), such Receivables and other property to be sold to the Trust
by the Bank and to be serviced for the Trust by the Servicer. The Class B
Certificates are, to the extent specified in the Pooling and Servicing
Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "POOLING AND SERVICING AGREEMENT"), by and among the
Bank, as seller (in such capacity, the "SELLER") and as servicer (in such
capacity, the "SERVICER"), and ____________, as trustee (in such capacity, the
"TRUSTEE"), and as collateral agent for the Yield Supplement Account and the
Reserve Account (in such capacity, the "COLLATERAL AGENT").
The Bank has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended (the "ACT"), and the rules and regulations of
the Commission thereunder (the "RULES AND REGULATIONS"), a registration
statement, including a prospectus, and a prospectus supplement relating to the
Certificates. The registration statement as amended at the time when it shall
become effective, or, if a post-effective amendment is filed with respect
thereto, as amended by such post-effective
amendment at the time of its effectiveness, including in each case information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is referred to in this
Agreement as the "REGISTRATION STATEMENT," and the prospectus supplement in the
form used to confirm sales of the Certificates is referred to in this Agreement
as the "PROSPECTUS SUPPLEMENT."
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "EXECUTION TIME" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "REGISTRATION
STATEMENT EFFECTIVE DATE" shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto became or become
effective. "RULE 424" and "RULE 430A" refer to such rules under the Act.
"SUPPLEMENT EFFECTIVE DATE" shall mean the date the Prospectus Supplement and
any post-effective amendment or amendment thereto became or become effective To
the extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
The Bank represents and warrants to, and agrees with, the Underwriters
as follows:
1. The Bank hereby agrees to sell and deliver the Certificates to
the several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Bank the respective principal amount of the Certificates set forth
opposite such Underwriter's name in Schedule I hereto. The Class A Certificates
and the Class B Certificates are to be purchased by the Underwriters at the
purchase price of __________ and ___________, respectively, of the aggregate
principal amount thereof plus accrued interest on the principal amount thereof
at the applicable Pass-Through Rate calculated from (and including) __________,
to (but excluding) the Closing Date.
2. The Bank understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Certificates as soon after
the Prospectus Supplement and this Agreement have become effective as in the
judgment of the Representative is advisable and (ii) initially to offer the
Certificates upon the terms set forth in the Prospectus and the Prospectus
Supplement.
3. Payment for the Certificates shall be made to the Bank or to its
order, by wire transfer of same day funds at the office of Xxxxxxxx & Xxxxx, 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m. (New York time) on
____________ (the "CLOSING DATE"), or at such other time on the same or such
other date, not later than the fifth Business Day thereafter, as the
Representative and the Bank may agree upon in writing. As used herein, the term
"BUSINESS DAY" means any day other than a day on which banks are permitted or
required to be closed in the City of New York.
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Payment for the Certificates shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Certificates registered in the name of Cede & Co. as nominee of The Depositary
Trust Company and in such denominations, as permitted by the Pooling and
Servicing Agreement, as the Representative shall request in writing not later
than two full Business Days prior to the Closing Date, with any transfer taxes
payable in connection with the transfer to the Underwriters of the Certificates
duly paid by the Bank. The certificates for the Certificates will be made
available for inspection and packaging by the Representative at the office of
Xxxxxxxx & Xxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than
1:00 p.m. (New York time) on the Business Day prior to the Closing Date.
4. The Bank hereby represents and warrants to, and agrees with, each
Underwriter that:
(a) The Registration Statement on Form S-1 (no. 333-35847),
including the Prospectus, Prospectus Supplement and such amendments thereto as
may have been required on or prior to the date hereof, relating to the
Certificates, has been filed with the Commission and such Registration Statement
as amended has become effective. With respect to the Registration Statement,
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 by the
Bank;
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the Commission,
and on the Registration Statement Effective Date of the Registration Statement,
the Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and, on the Closing Date, the Registration Statement, the Prospectus and the
Prospectus Supplement will conform in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished to the Bank in writing by any Underwriter through the
Representative expressly for use therein;
(c) The computer tape with respect to the Receivables to be sold
to the Trust created as of the Cutoff Date (the "COMPUTER TAPE"), and made
available to the Representative by the Bank, was complete and accurate in all
material respects as of the date thereof;
(d) The Bank has been duly organized and is validly existing as
a United States banking association, is in good standing under the laws of the
United States, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified for the transaction of business and is in good standing under
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the laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Bank;
(e) The Certificates have been duly authorized, and, when issued
and delivered pursuant to the Pooling and Servicing Agreement, duly
authenticated by the Trustee and paid for by the Underwriters in accordance with
the terms of this Agreement, will be duly and validly issued, authenticated and
delivered and entitled to the benefits provided by the Pooling and Servicing
Agreement; each of the Pooling and Servicing Agreement, the Yield Supplement
Agreement and this Agreement have been duly authorized by the Bank and, when
executed and delivered by the Bank and the other parties thereto (in the case of
the Pooling and Servicing Agreement and the Yield Supplement Agreement), each of
the Pooling and Servicing Agreement, the Yield Supplement Agreement and this
Agreement will constitute a valid and binding agreement of the Bank; the
Certificates, the Pooling and Servicing Agreement and the Yield Supplement
Agreement will conform to the descriptions thereof in the Prospectus Supplement
in all material respects;
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be obtained or
made by the Bank for the consummation of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement or the Yield Supplement Agreement
except such as have been obtained and made under the Act, such as may be
required under state securities laws and the filing of any financing statements
required to perfect the Trust's interest in the Receivables;
(g) The Bank is neither in violation of its articles of
association or by-laws nor is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties is bound
which would have a material adverse effect on the transactions contemplated
herein or in the Pooling and Servicing Agreement or the Yield Supplement
Agreement. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and the Yield Supplement Agreement, and the
issuance and sale of the Certificates and compliance with the terms and
provisions hereof and thereof, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any court having
jurisdiction over the Bank or any of its properties or any agreement or
instrument to which the Bank is a party or by which the Bank is bound or to
which any of the properties of the Bank is subject, or the articles of
association or by-laws of the Bank; and the Bank has full power and authority to
authorize and to sell, and to establish the Trust that will issue, the
Certificates as contemplated by this Agreement and to enter into this Agreement,
the Pooling and Servicing Agreement and the Yield Supplement Agreement;
(h) Other than as set forth or contemplated in the Prospectus
and the Prospectus Supplement, there are no legal or governmental proceedings
pending or, to the knowledge of the Bank, threatened, to which the Bank is or
may be a party or to which any property
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of the Bank is or may be the subject which, if determined adversely to the Bank,
could individually or in the aggregate reasonably be expected to have a material
adverse effect on the general affairs, business, prospects, management,
financial position, stockholders, equity or results of operations of the Bank or
that would reasonably be expected to materially adversely affect the interests
of the holders of the Certificates; and there are no contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement, the
Prospectus or the Prospectus Supplement which are not filed or described as
required; and
(i) By assignment and delivery of each of the Receivables to the
Trust as of the Closing Date, the Bank will transfer all of its right, title and
interest in, to and under the Receivables and certain related property to the
Trust, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
5. The Bank covenants and agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the
Certificates, the Bank will not file or cause to be filed any amendment of the
Registration Statement or supplement to the Prospectus which shall be reasonably
disapproved of promptly by the Representative after reasonable notice thereof.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Bank will cause the Prospectus,
properly completed, and any supplement thereto, to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriters of such
timely filing. The Bank will promptly advise the Underwriters (i) when the
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the
offering of the Certificates, any amendment to the Registration Statement shall
have become effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the receipt by the Bank of notification with
respect to the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Bank of
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Bank will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof;
(b) The Bank will deliver or cause to be delivered, at its
expense, to the Representative, two signed copies of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the Registration
Statement and each amendment thereto, in each case without exhibits, and, during
the period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) as
the Representative may
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reasonably request. The Bank will furnish or cause to be furnished to the
Representative copies of all reports on Form SR required by Rule 463 under the
Act;
(c) The Bank will, if (i) during such period of time after the
first date of the public offering of the Certificates as in the opinion of
counsel for the Underwriters a Prospectus and Prospectus Supplement relating to
the Certificates is required by law to be delivered in connection with sales by
an underwriter or dealer, (ii) any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus and Prospectus
Supplement are delivered to a purchaser, not misleading, or (iii) it is
necessary to amend or supplement the Prospectus and Prospectus Supplement to
comply with the applicable law, forthwith prepare and furnish, at the expense of
the Bank, to the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Bank) to which the Certificates may have been
sold by the Representative on behalf of the Underwriters and upon request by the
Representative to any other dealers identified by the Representative, such
amendments or supplements to the Prospectus and Prospectus Supplement as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus and Prospectus Supplement
will comply with the law;
(d) The Bank will qualify the Certificates for offer and sale
under the securities or "BLUE SKY" laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Certificates and
will pay all fees and expenses (including fees and disbursements of counsel to
the Underwriters) reasonably incurred in connection with such qualification and
in connection with the determination of the eligibility of the Certificates for
investment under the laws of such jurisdictions as the Representative may
designate; PROVIDED, HOWEVER, that the Bank shall not be obligated to qualify to
do business in any jurisdiction in which it is not currently so qualified; and
PROVIDED FURTHER that the Bank shall not be required to file a general consent
to service of process in any jurisdiction;
(e) On or before ____________, the Bank will cause the Trust to
make generally available to the Certificateholders and to the Representative as
soon as practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Trust occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Commission promulgated
thereunder;
(f) For the period from the date of this Agreement until the
retirement of the Certificates the Servicer will furnish to the Representative
(x) copies of each certificate and the annual statements of compliance delivered
to the Trustee pursuant to the Pooling and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Trustee pursuant to the Pooling and Servicing Agreement, by first-class mail as
soon as practicable after such statements and reports are furnished to the
Trustee and (y) copies of each
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amendment to the Pooling and Servicing Agreement, and on each Determination Date
or as soon thereafter as practicable, the Servicer shall give notice
substantially in the form of Schedule II hereto by telex or telecopy to the
Representative of the Class A Pool Factor and the Class B Pool Factor as of the
related Record Date;
(g) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing Date, the
Bank will not offer, sell, contract to sell or otherwise dispose of any
securities of or guaranteed by the Bank which are substantially similar to the
Certificates without the prior written consent of the Representative;
(h) To the extent, if any, that the rating provided with respect
to the Certificates by the rating agency or rating agencies rating the
Certificates (the "RATING AGENCY") is conditional upon the furnishing of
documents or the taking of any other action by the Bank agreed upon on or prior
to the Closing Date, the Bank shall use its reasonable best efforts to furnish
such documents and take any such other action; and
(i) So long as any of the Certificates are outstanding, the Bank
will furnish to the Representative, by first class mail, (i) as soon as
practical after the end of the Bank's fiscal year, copies of all documents,
records and financial statements required to be distributed to
Certificateholders (including Certificate Owners) or filed with the Commission
pursuant to the Exchange Act, or any order of the Commission thereunder and
(ii) from time to time, any other information concerning the Bank filed with any
government or regulatory authority or national securities exchange which is
otherwise publicly available, as the Representative may reasonably request.
6. The Bank will pay all costs and expenses incident to the
performance of its obligations under this Agreement, including, without limiting
the generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Certificates, (ii) incident to the preparation, printing and filing under the
Act of the Registration Statement, the Prospectus, any preliminary prospectus
and the Prospectus Supplement (including in each case all exhibits, amendments
and supplements thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Certificates under the laws of such jurisdictions as the Underwriters may
designate (including fees and disbursements of counsel for the Underwriters with
respect thereto), (iv) related to any filing with the National Association of
Securities Dealers, Inc., (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Pooling
and Servicing Agreement, the Yield Supplement Agreement and any Blue Sky
Memorandum and the furnishing to the Underwriters and dealers of copies of the
Registration Statement, the Prospectus and the Prospectus Supplement as herein
provided, (vi) the fees and disbursements of the Bank's counsel and accountants
and that portion of the Underwriters' counsel fees and disbursements that are
chargeable to the Bank, and (vii) any fees and expenses payable to the Rating
Agencies in connection with the rating of the Certificates.
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7. The obligations of the several Underwriters to purchase and pay
for the Certificates will be subject to the accuracy of the representations and
warranties on the part of the Bank herein, to the accuracy of the statements of
officers of the Bank made pursuant to the provisions hereof, to the performance
by the Bank of its obligations hereunder and to the following additional
conditions precedent:
(a) At the time this Agreement is executed and delivered by the
Bank and at the Closing Date, Deloitte and Touche, L.L.P. shall have furnished
to the Representative letters dated, respectively, as of the date of this
Agreement and as of the Closing Date substantially in the forms of the drafts to
which the Representative previously agreed.
(b) The Prospectus and Prospectus Supplement shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the Rules and Regulations and in accordance
with Section 5(a) of this Agreement; no stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or, to the knowledge of the Bank, threatened by
the Commission; and all requests for additional information from the Commission
with respect to the Registration Statement shall have been complied with to the
satisfaction of the Representative.
(c) The Representative shall have received an officer's
certificate, dated the Closing Date, signed by the Chairman of the Board, the
President, or any Vice President of the Bank representing and warranting that,
as of the Closing Date, except to the extent that they relate expressly to
another date (in which case they will be true and correct as of such date on the
Closing Date), the representations and warranties of the Bank in this Agreement
are true and correct, that the Bank has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, that 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 best of its knowledge, are contemplated by the
Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Bank or the Servicer which, in the judgment of the
Representative, materially impairs the investment quality of the Certificates or
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Certificates or (ii) any downgrading in the rating of any
debt securities of the Bank or any of its direct or indirect subsidiaries by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating).
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(e) Ray, Xxxxxxx & Xxxxxxx, special counsel to the Bank, shall
have furnished to the Representative its written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, to the effect
that:
(i) The Bank has been duly organized and is validly
existing as a United States banking association in good standing under the
laws of the United States with full corporate power and authority to own
its properties and conduct its business as described in the Prospectus, and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification except where the failure to be so
qualified or in good standing would not have a material adverse effect on
the Bank.
(ii) The Pooling and Servicing Agreement and the Yield
Supplement Agreement have been duly authorized, executed and delivered by
the Bank.
(iii) This Agreement has been duly authorized, executed and
delivered by the Bank.
(iv) The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement and the Yield Supplement
Agreement by the Bank 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 properties or assets of the Bank, pursuant to its articles of
association or by-laws, any statute, regulation or publicly issued rule or
order, or, to the best of such counsel's knowledge, after due inquiry, any
privately issued rule or order of any governmental agency or body or any
court having jurisdiction over the Bank, or its properties or any agreement
or instrument known to such counsel to which the Bank, is a party or by
which the Bank, or any of its respective properties is bound.
(v) To the best of such counsel's knowledge, after due
inquiry, no authorization, approval or consent of any court or governmental
agency or authority is necessary in connection with the execution, delivery
and performance by the Bank of this Agreement, the Pooling and Servicing
Agreement or the Yield Supplement Agreement, except such as may be required
under the Act or the Rules and Regulations and state securities laws, and
except for such authorizations, approvals or consents (specified in such
opinion) as are in full force and effect as of the Closing Date.
(vi) The Certificates have been duly authorized by the
Bank.
(vii) Nothing has come to such counsel's attention that
would cause it to believe that as of the latest Supplement Effective Date
and at the Closing Date (x) the Registration Statement, the Prospectus and
the Prospectus Supplement (other than the financial statements and the
other accounting, statistical and financial information contained
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therein or omitted therefrom) contained or contain any untrue statement of
a material fact or omitted or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (y) the
descriptions therein of statutes and governmental proceedings and contracts
and other documents are inaccurate in any material respect or do not fairly
present the information required to be shown therein.
(viii) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement, the Prospectus or the Prospectus Supplement which is not filed
or described as required.
(ix) There are no legal or governmental proceedings
pending to which the Bank is a party, or of which any property, of the Bank
is the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened by
others, in each such case, (A) that are required to be disclosed in the
Registration Statement or (B) asserting the invalidity of all or part of
this Agreement, the Pooling and Servicing Agreement or the Yield Supplement
Agreement, (C) seeking to prevent the issuance of the Certificates,
(D) that could materially and adversely affect the Bank's obligations under
this Agreement, the Pooling and Servicing Agreement or the Yield Supplement
Agreement, as applicable, or (E) seeking to affect adversely the federal or
state income tax attributes of the Certificates.
(x) The Bank has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust pursuant to the Pooling and Servicing
Agreement and has duly authorized such sale and assignment to the Trustee
by all necessary corporate action.
(xi) To the best of such counsel's knowledge, immediately
prior to the transfer of Receivables by the Bank pursuant to the Pooling
and Servicing Agreement, the Bank was the sole owner of all right, title
and interest in its Receivables and the other property to be transferred by
it to the Trust.
(xii) To the best of such counsel's knowledge, Receivables
transferred to the Trust by the Bank are "chattel paper" as defined in the
Relevant UCC.
(xiii) Such counsel is familiar with the Bank's standard
operating procedures relating to the Bank's acquisition of a perfected
first priority security interest in the vehicles financed by the Bank
pursuant to retail installment sale contracts in the ordinary course of the
Bank's business. Assuming that the Bank's standard procedures have been
followed with respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe that the Bank
has not followed its standard procedures in connection with the perfection
of security interest in the Financed Vehicles), the Bank has
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acquired or will acquire a perfected first priority security interest in
each of the Financed Vehicles.
(xiv) To the extent that the Relevant UCC applies to the
perfection of the Trustee's security interests in the Receivables and other
property, rights and interests conveyed by the Bank to the Trust pursuant
to the Pooling and Servicing Agreement, when financing statements have been
duly executed and delivered and filed or recorded, as appropriate, in the
appropriate filing offices, such security interests will be perfected.
Under the Relevant UCC, no other security interest of any other creditor of
the Bank is equal or prior to the security interest of the Trustee in such
Receivables and other property conveyed to the Trust.
(xv) All filings necessary under applicable law to perfect
both the sale of, and grant of a security interest in, Receivables and the
proceeds thereof by the Bank to the Trustee as Trustee of the Trust
pursuant to the Pooling and Servicing Agreement have been made and,
provided that the Bank does not relocate its chief executive office in a
state other than Utah, and that the Trustee maintains the list of
Receivables for inspection by interested parties, and no administrative
errors are made by state or local agencies, no other filings (other than
the filing of continuation statements) need be made to maintain the
perfection of the transfer of the Receivables and the proceeds thereof to
the Trustee as Trustee of the Trust pursuant to the Pooling and Servicing
Agreement.
(xvi) The statements in the Registration Statement, the
Prospectus and the Prospectus Supplement under the headings "ERISA
Considerations" and "Certain Legal Aspects of the Receivables," to the
extent they constitute descriptions of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
are correct in all material respects.
(xvii) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as amended, and the
Trust is not required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
(xviii) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the best of such counsel's knowledge,
threatened by the Commission; the Registration Statement, the Prospectus
and the Prospectus Supplement (other than the accounting, financial and
statistical data contained in the Registration Statement, the Prospectus or
the Prospectus Supplement, or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
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(xix) The Certificates, this Agreement, the Pooling and
Servicing Agreement and the Yield Supplement Agreement each conform in all
material respects with the descriptions thereof contained in the
Registration Statement, the Prospectus and the Prospectus Supplement.
(f) Xxxxxxxx & Xxxxx shall have furnished to the Representative
its written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, to the effect that, (i) assuming the due authorization,
execution and delivery of the Pooling and Servicing Agreement and the Yield
Supplement Agreement by the Bank, each of the Pooling and Servicing Agreement
and the Yield Supplement Agreement constitutes the legal, valid and binding
obligation of the Bank, enforceable against the Bank in accordance with its
terms, and (ii) when executed and authenticated by the Trustee in accordance
with the Pooling and Servicing Agreement and delivered and paid for in
accordance with this Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and Servicing
Agreement. Such opinion may be made subject to the qualifications that the
enforceability of the terms of the Pooling and Servicing Agreement and the Yield
Supplement Agreement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, and 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.
(g) Xxxxxxxx & Xxxxx shall have furnished to the Representative
its written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, to the effect that:
(i) The Trust created by the Pooling and Servicing
Agreement will not be classified as an association taxable as a corporation
for federal income tax purposes and, instead, under subpart E, part I of
subchapter J of the Internal Revenue Code of 1986, as amended, the Trust
will be treated as a grantor trust and, subject to possible
recharacterization of certain fees paid by the Trust to the Bank or the
Servicer, each Certificate Owner will be treated as the owner of an
undivided PRO RATA interest in the income and corpus attributable to the
Trust.
(ii) The statements in the Registration Statement,
Prospectus and Prospectus Supplement under the heading "Federal Income Tax
Consequences," to the extent that they constitute descriptions of matters
of law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects.
(iii) The Yield Supplement Account and the Reserve Account
will not be treated as an association taxable as a corporation or other
separate taxable entity for federal tax purposes; and neither the Trustee
nor the Certificate Owners will be treated as the owner of any portion of
the Yield Supplement Account or the Reserve Account and the funds therein
for such purposes.
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(h) Ray, Xxxxxxx & Xxxxxxx, special Utah tax counsel to the
Bank, shall have furnished to the Representative its written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to the
effect that:
(i) The Trust will not be classified as a separate entity
on which Utah franchise tax will be imposed, and will not be subject to
other Utah taxes measured by income, capital, profits or receipts (other
than sales, excise, or AD VALOREM taxes that might be imposed upon the
ownership or sale of a vehicle acquired upon default of a Receivable);
(ii) Certificate owners who would not otherwise be subject
to tax in Utah will not be subject to Utah income or franchise taxes with
respect to interest or other amounts (including payments under the Yield
Supplement Agreement and from the Yield Supplement Account and the Reserve
Account) attributable solely to the beneficial ownership of a Certificate
(other than such Certificate Owner's share of sales, excise, or AD VALOREM
taxes that might be imposed upon the ownership or sale of a vehicle
acquired upon default of a Receivable);
(iii) The Yield Supplement Account and the Reserve Account
will not be treated as an association taxable as a corporation or other
separate taxable entity for Utah state tax purposes;
(iv) and neither the Trustee nor the Certificate Owners
will be treated as the owner of any portion of the Yield Supplement Account
or the Reserve Account and the funds therein for Utah state tax purposes.
(i) Xxxxxxx, Xxxxxx, Xxxxxxx, Rock & Fields, special Idaho tax
counsel to the Bank, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Trust will not be classified as a separate entity
on which Idaho franchise tax will be imposed, and will not be subject to
other Idaho taxes measured by income, capital, profits or receipts (other
than sales, excise, or AD VALOREM taxes that might be imposed upon the
ownership or sale of a vehicle acquired upon default of a Receivable);
(ii) Certificate owners who would not otherwise be subject
to tax in Idaho will not be subject to Idaho income or franchise taxes with
respect to interest or other amounts (including payments under the Yield
Supplement Agreement and from the Yield Supplement Account and the Reserve
Account) attributable solely to the beneficial ownership of a Certificate
(other than such Certificate Owner's share of sales, excise, or AD VALOREM
taxes that might be imposed upon the ownership or sale of a vehicle
acquired upon default of a Receivable);
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(iii) The Yield Supplement Account and the Reserve
Account will not be treated as an association taxable as a corporation or
other separate taxable entity for Idaho state tax purposes;
(iv) and neither the Trustee nor the Certificate Owners will
be treated as the owner of any portion of the Yield Supplement Account or
the Reserve Account and the funds therein for Idaho state tax purposes.
(j) Xxxxxxxx & Xxxxx, special New York tax counsel to the Bank,
shall have furnished to the Representative its written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to the
effect that:
(i) The Trust will not be classified as a separate entity
on which New York franchise tax will be imposed; and the Trust will not be
subject to other New York taxes measured by income, capital, profits or
receipts (other than sales, excise, or AD VALOREM taxes that might be
imposed upon the sale of a vehicle acquired upon default of a Receivable).
(ii) Certificate Owners who would not otherwise be subject
to tax in New York will not be subject to New York income or franchise
taxes with respect to interest or other amounts (including payments under
the Yield Supplement Agreement and from the Yield Supplement Account and
the Reserve Account) attributable solely to the beneficial ownership of a
Certificate (other than such Certificate Owner's share of sales, excise, or
AD VALOREM taxes that might be imposed upon the sale of a vehicle acquired
upon default of a Receivable).
(iii) The Yield Supplement Account and the Reserve Account
will not be treated as an association taxable as a corporation or other
separate taxable entity for New York state tax purposes; and neither the
Trustee nor the Certificate Owners will be treated as the owner of any
portion of the Yield Supplement Account or the Reserve Account and the
funds therein for such purposes.
(k) The Representative shall have received an opinion of
Xxxxxxxx & Xxxxx, dated the Closing Date, with respect to such matters as the
Representative shall require and the Bank shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(l) The Representative shall have received an opinion of counsel
to Bankers Trust, addressed to the Underwriters and the Bank, dated the Closing
Date and satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) Bankers Trust is a New York banking corporation duly
organized and validly existing under the laws of the United States.
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(ii) Bankers Trust has the power and authority to enter
into and perform the Pooling and Servicing Agreement. The execution,
delivery and performance of the Pooling and Servicing Agreement have been
duly authorized by all requisite action, and the Pooling and Servicing
Agreement has been duly executed and delivered by Bankers Trust.
(iii) No consent, approval, authorization, order of or
filing with any court, governmental agency or body (including without
limitation, any banking regulatory agency or body or arbitrator having
jurisdiction over Bankers Trust) is required in connection with the
execution and delivery by Bankers Trust of the Pooling and Servicing
Agreement and the performance by Bankers Trust of the transactions
thereunder.
(iv) The Pooling and Servicing Agreement, assuming due
authorization, execution and delivery thereof by the Bank and the Servicer,
constitutes a valid and legally binding agreement of Bankers Trust and is
enforceable against Bankers Trust in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and the rights of creditors of banks in particular and by general
principles of equity.
(v) The Certificates have been duly executed,
authenticated and delivered by Bankers Trust.
(vi) If Bankers Trust were acting as Servicer under the
Pooling and Servicing Agreement as of the date of this Agreement, Bankers
Trust would have the corporate power and authority to perform the
obligations of the Servicer as provided in the Pooling and Servicing
Agreement.
(m) The Representative shall have received a letter or letters
from each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Underwriters to rely on such opinion as
if it were addressed to the Underwriters.
(n) The Representative shall have received an officer's
certificate dated the Closing Date of the Chairman of the Board, the President
or any Vice President and by a principal financial or accounting officer of the
Bank and the Servicer in which each such officer shall state that, the
representations and warranties of the Bank or the Servicer, as applicable,
contained in the Pooling and Servicing Agreement are true and correct in all
material respects and that the Bank or the Servicer, as applicable, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date in all material
respects.
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(o) The Class A Certificates shall have been rated "Aaa" by
Xxxxx'x and "AAA" by S&P and the Class B Certificates shall have been rated "A3"
by Xxxxx'x and "A" by S&P.
(p) On the Closing Date, the representations and warranties of
the Bank in the Pooling and Servicing Agreement will be true and correct.
(q) Any taxes, fees and other governmental charges which are due
and payable in connection with the execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Yield Supplement Agreement
and the Certificates shall have been paid by the Bank at or prior to the Closing
Date.
8. (a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses reasonably incurred in
connection with investigating, preparing or defending any suit, action or
proceeding or any claim asserted, except as otherwise provided below regarding
the limitation on use of counsel) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus or the Prospectus Supplement (as amended or supplemented if the Bank
shall have furnished such amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished to the Bank in writing by any Underwriter through the Representative
expressly for use therein; PROVIDED that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any losses, claims or damages purchased Certificates if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus or the
Prospectus Supplement (as amended or supplemented if the Bank shall have
furnished any amendments or supplements thereto) and, if the furnishing of a
copy of the Prospectus (as so amended or supplemented) to such person was
required by law or was requested in writing by the Bank, a copy of the
Prospectus and the Prospectus Supplement (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Certificates to such person.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Bank, each director and officer of the Bank who
signed the Registration Statement, and each person who controls the Bank within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Bank to each Underwriter,
but only with reference to information furnished to the Bank in writing by such
Underwriter through the Representative expressly for use in the Registration
Statement, the
-16-
Prospectus, the Prospectus Supplement any amendment or supplement thereto, or
any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of Sections 8(a) or (b), such person (the "INDEMNIFIED PERSON") shall
promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, in
which case such counsel for the Indemnified Person shall be reasonably
satisfactory to the Indemnifying Person. It is understood that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to one local counsel in each applicable jurisdiction) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and such control
persons of the Underwriters shall be designated in writing by the Representative
and any such separate firm for the Bank or either of its directors or officers
who sign the Registration Statement or control persons shall be designated in
writing by the Bank. The Indemnifying Person shall not be liable for any
settlement of any claim or proceeding effected without its written consent.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
Section 8(c), the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in Sections 8(a) and (b)
is unavailable other than in accordance with its terms to an Indemnified Person
in respect of any losses,
-17-
claims, damages or liabilities referred to therein, then each Indemnifying
Person under either of Sections 8(a) or (b), in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Bank on the one hand and the Underwriters on the other
hand from the offering of the Certificates 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 Bank on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Bank
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Bank and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Certificates. The relative fault of the Bank on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Bank or by any of the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Bank and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Section 8 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of Section 8, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of the Certificates set forth opposite their names
in Schedule I hereto, and not joint.
(f) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
-18-
(g) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Bank set forth in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Bank, or any of its officers or directors or any other person
controlling the Bank and (iii) acceptance of and payment for any of the
Certificates.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Bank, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
American Stock Exchange; (ii) trading of any securities of or guaranteed by the
Bank shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representative is material and adverse and which, in the judgment of the
Representative, makes it impracticable to market the Certificates on the terms
and in the manner contemplated in the Prospectus and the Prospectus Supplement.
10. (a) This Agreement shall become effective upon the later of
(x) execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Prospectus Supplement (or, if
applicable, any post-effective amendment) by the Commission.
(b) If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Certificates which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Certificates which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Certificates to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Certificates set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of Certificates set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Certificates which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount of Certificates that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 10(b) by an amount in excess of one-ninth of such
principal amount of Certificates without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Certificates with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Certificates to be purchased on such date, and arrangements
satisfactory to the Representative and the Bank for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the
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Bank. In any such case either the Representative or the Bank shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement, the
Prospectus and the Prospectus Supplement or in any other documents or
arrangements may be effected. Any action taken under this Section 10(b) shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Bank to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Bank shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters cannot be fulfilled, the Bank
agrees to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed, delivered by hand or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/o _______________________ (Facsimile No.: ___________),
Attention: _________. Notices to the Bank shall be given to it at First
Security Bank, N.A., 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (Facsimile
No.: 801-359-6928), Attention: Executive Vice President and Chief Financial
Officer.
13. This Agreement shall inure to the benefit of and be binding upon
the Bank, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of the
Certificates from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
14. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
* * * * *
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Bank and the Underwriters in
accordance with its terms.
Very truly yours,
FIRST SECURITY BANK, N.A.
BY:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
------------------------------
As Representative of
the Underwriters
By:
--------------------------
By:
----------------------------
Name:
Title:
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SCHEDULE I
UNDERWRITERS
Principal Amount
----------------
-------------------------
Class A Certificates $
Class B Certificates $
-------------------------
Class A Certificates $
Class B Certificates $
A-1
SCHEDULE II
FORM OF SERVICER'S CERTIFICATE
-----------------
-----------------
-----------------
Attention:
Re: Pooling and Servicing Agreement dated as of ______________
(as amended, supplemented or otherwise modified and in
effect, the "Pooling and Servicing Agreement") between First
Security Bank, N.A., as seller and servicer and Bankers
Trust Company, as trustee and collateral agent ____________
____________________________________________________________
Determination Date to which this Certificate relates:
___________________, ____
For Monthly Period ending on ____________, ____
1. The undersigned Servicing Officer does hereby certify that the
Class A Pool Factor is ______________.
2. The undersigned Servicing Officer does hereby certify that the
Class B Pool Factor is ___________________________.
3. Capitalized terms used in this Certificate shall have the same
meanings as in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the above-
referenced Determination Date.
, as Servicer
-----------------
By:
---------------------------------
Servicing Officer
A-2
