Exhibit No. 1.1
UNITED FIDELITY AUTO TRUST 200_-_
___% CLASS A-1 ASSET BACKED NOTES
___% CLASS A-2 ASSET BACKED NOTES
___% CLASS A-3 ASSET BACKED NOTES
___% CLASS A-4 ASSET BACKED NOTES
___% CLASS B ASSET BACKED NOTES
UNDERWRITING AGREEMENT
_________, 200_
City Securities Corporation
As Representative of the Underwriters
000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
P. O. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. United Fidelity Finance, LLC, a Delaware limited liability
company (the "Seller"), proposes to cause United Fidelity Auto Trust 200_ (the
"Trust") to issue and sell $________ principal amount of Class A-1 ___% Asset
Backed Notes (the "A-1 Notes"), $________ principal amount of Class A-2 ___%
Asset Backed Notes (the "A-2 Notes"), $________ principal amount of Class A-3
___% Asset Backed Notes (the "A-3 Notes"), $________ principal amount of Class
A-4 ___% Asset Backed Notes (the "A-4 Notes") and $________ principal amount of
Class B ___% Asset Backed Notes (the "B Notes"; together with the A-1 Notes, the
A-2 Notes, the A-3 Notes and the A-4 Notes, the "Notes"), to the several
underwriters named in Schedule I hereto (collectively, the "Underwriters"), for
whom you are acting as representative (the "Representative"). The assets of the
Trust include, among other things, a pool of automobile retail installment sale
contracts or other similar evidences of installment indebtedness (the
"Receivables") secured by new and used automobiles and light trucks and the
related security interests in the equipment financed thereby. The Receivables
were sold to the Trust by the Seller. The Receivables are serviced for the Trust
by United Fidelity Bank, FSB, a federally chartered savings association (the
"Bank"). The Notes will be issued pursuant to the Indenture to be dated as of
_________ ___, 200_ (as amended and supplemented from time to time, the
"Indenture"), between the Trust and __________ (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Notes as contemplated in
this Agreement, the Trust will issue ___% Asset Backed Certificates (the
"Certificates"), in a combined amount of $________ to the Seller. The
Certificates represent fractional undivided
ownership interests in the Trust. The Notes and the Certificates are sometimes
referred to herein as the "Securities."
[The Seller acknowledges that it will have furnished to the Underwriters,
for distribution to potential investors in the Notes prior to the date on which
the Prospectus (as defined in Section 2(a) below) is made available to such
potential investors, a term sheet in the form of Exhibit A hereto (the "Term
Sheets").]
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Trust and Servicing Agreement to be dated as of
_______ ___, 200_ (as amended and supplemented from time to time, the "Trust and
Servicing Agreement"), among ____________, as owner trustee (the "Owner
Trustee"), the Trust, the Seller and the Bank, as servicer, or, if not defined
therein, in the Indenture.
2. Representations and Warranties. The Seller and the Bank (each a
"Representing Party" and collectively the "Representing Parties"), jointly and
severally, represent and warrant to, and agrees with, each Underwriter as of the
date hereof and as of the Closing Date that:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. _________) on such Form, including a related preliminary base
prospectus and a preliminary prospectus supplement, for the registration under
the Act of the offering and sale of the Securities. The Seller may have filed
one or more amendments thereto, each of which amendments has previously been
furnished to you. The Seller will next file with the Commission one of the
following: (i) prior to the effectiveness of such registration statement, an
amendment thereto (including the form of final base prospectus and the form of
final prospectus supplement relating to the Securities), (ii) after
effectiveness of such registration statement, a final base prospectus and a
final prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4) under the Act, or (iii) after the effectiveness of
such registration statement, a final base prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 415 and 424(b)(2)
or (5). In the case of clauses (ii) and (iii), the Seller has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in the Prospectus with respect to the Securities and the offering
thereof. As filed, such amendment and form of final prospectus supplement, or
such final prospectus supplement, shall include all Rule 430A Information,
together with all other such required information with respect to the Securities
and the offering thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
base prospectus and preliminary prospectus supplement, if any, that have
previously been furnished to you) as the Seller has advised you, prior to the
Execution Time, will be included or made therein. If the
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Registration Statement contains the undertaking specified by Regulation S-K Item
512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time, means the date and time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
including all information deemed to be a part of such registration statement as
of the Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base Prospectus" shall
mean the prospectus referred to above contained in the Registration Statement at
the Effective Date including any Preliminary Prospectus Supplement, as most
recently revised or amended and filed with the Commission pursuant to Rule
424(b) or Rule 429. "Preliminary Prospectus Supplement" shall mean any
preliminary prospectus supplement to the Base Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Base Prospectus, as amended at the time of such filing, or, if
no filing pursuant to Rule 424(b) is required, shall mean the prospectus
supplement relating to the Securities, including the Base Prospectus, included
in the Registration Statement at the Effective Date. "Rule 430A Information"
means information with respect to the Securities and the offering of the
Securities permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulations under the Act. "Term Sheets"
shall mean those certain term sheets, if any, delivered by the Seller to each
Underwriter, all of which have been filed by the Seller on a Form 8-K in
accordance with all applicable no-action letters, as published by the
Commission. Any reference herein to the Registration Statement, the Base
Prospectus, a Preliminary Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the Effective Date of
the Registration Statement or the issue date of the Base Prospectus, such
Preliminary Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Base Prospectus, any
Preliminary Prospectus Supplement or the Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as defined
below), the Prospectus (and any supplements thereto)
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will, comply in all material respects with the applicable requirements of the
Act, the Securities Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Term Sheets
and the Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Term Sheets and the Prospectus (together with any supplement thereto) will
not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Representing Parties make no representation or warranty as to the
information contained in or omitted from the Registration Statement, the Term
Sheets or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by the
Underwriters through you specifically for use in connection with the preparation
of the Registration Statement, the Term Sheets or the Prospectus (or any
supplement thereto), it being agreed that the only such information consists of
the statements in the [third] and [fourth] paragraphs and the second sentence of
the [sixth] paragraph under the caption "Underwriting" in the Prospectus
Supplement (such information, the "Underwriter Information").
(c) The Bank is a federally chartered savings association organized under
the laws of the United States with the power and authority to own its properties
and conduct its business as described in the Registration Statement, and had at
all relevant times and has the power, authority and legal right to acquire, own,
sell and service the Receivables.
(d) The Seller has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware with
the power and authority to own its properties and conduct its business as
described in the Registration Statement, and had at all relevant times and has
the power, authority and legal right to acquire, own and sell the Receivables.
(e) Each of the Representing Parties and the Issuer (collectively, the "UFB
Entities") has full power, authority and legal right to execute and deliver, and
to perform and observe the provisions of, each of the Basic Documents (as
defined herein) to which it is a party and to carry out the transactions
contemplated in such Basic Documents.
(f) On the Closing Date, the Purchase Agreement, the Indenture, the
Administration Agreement, the Trust and Servicing Agreement, the Insurance
Agreement, the Policy and the other documents and certificates delivered in
connection therewith (such agreements, documents and certificates, excluding
this Agreement, being, collectively, the "Basic Documents") and all other
instruments to be delivered pursuant to this Agreement or the Basic Documents
will have been duly authorized, executed and delivered by each UFB Entity party
thereto and will be legal, valid and binding instruments of each UFB Entity
party thereto
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enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including the rights of creditors of banks the
accounts of which are insured by the FDIC) and subject, as to enforceability, to
general principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(g) This Agreement has been duly authorized, executed and delivered by each
of the Representing Parties.
(h) The execution and delivery of the Basic Documents by the UFB Entities
party thereto, compliance by the UFB Entities with the applicable provisions
thereof and the consummation by the UFB Entities of the transactions therein
contemplated will not result in (i) a breach, default or violation of (1) any
law or governmental rule or regulation applicable to any UFB Entity now in
effect, (2) any provision of the Charter, Limited Liability Company Agreement,
By-Laws, Certificate of Formation or Certificate of Trust applicable to any UFB
Entity, (3) any judgment, order or decree of any court, arbitrator,
administrative agency or other governmental authority applicable to any UFB
Entity, or (4) any agreement or instrument to which any UFB Entity is a party or
by which it is bound, (ii) the acceleration of any obligation of any UFB Entity,
or (iii) the creation of any lien, claim or encumbrance (other than the lien of
the Indenture) upon the Issuer.
(i) There are no actions, proceedings or investigations pending or, to the
best of their knowledge, threatened against or affecting any UFB Entity (or any
basis therefor known to either of the Representing Parties) (i) asserting the
invalidity of the Trust or any of the Basic Documents, (ii) seeking to prevent
the issuance of the Notes or the consummation by any UFB Entity of any of the
transactions contemplated by the Basic Documents, or (iii) which, individually
or in the aggregate, if adversely decided, would materially and adversely affect
the financial condition or operations of any UFB Entity or of any UFB Entity's
ability to carry out the transactions contemplated in the Basic Documents.
(j) When the Notes have been duly executed and delivered by the Owner
Trustee, authenticated by the Indenture Trustee in accordance with the Indenture
and delivered and paid for pursuant to this Agreement, the Notes will be duly
issued and entitled to the benefits and security afforded by the Indenture,
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(k) Immediately prior to the transfer of the Pledged Assets to the Issuer
as contemplated by the Transfer and Servicing Agreement, the Seller (i) had good
title to, and was the sole owner of, each Receivable purported to be transferred
by it to the Issuer pursuant to the Sale and Servicing Agreement free and clear
of any pledge, mortgage, lien, security interest or other encumbrance
(collectively, "Liens"), (ii) had not assigned to any person any of its right,
title or interest in such Pledged Assets or in the Purchase Agreement and (iii)
will have the power and authority to assign, transfer and convey such Pledged
Assets to the Issuer, and upon
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the execution and delivery of the Trust and Servicing Agreement by the Issuer,
the Issuer will have acquired all of the Seller's right, title and interest in
and to such Conveyed Property free and clear of any Lien (except for the Lien of
the Indenture).
(l) Immediately prior to the transfer of the Receivables to the Trust, the
Seller's interest in the Receivables, the security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of the foregoing
constituted a perfected first priority interest therein. If a court concludes
that the transfer of the Receivables from the Seller to the Trust is a sale, the
interest of the Trust in the Receivables, the security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of the foregoing will
be perfected upon the execution and delivery of the Basic Documents and the
filing of a UCC financing statement with the Secretary of State of the State of
Delaware and will constitute a first priority perfected interest therein. If a
court concludes that such transfer is not a sale, the Sale and Servicing
Agreement constitutes a grant by the Seller to the Trust of a valid security
interest in the Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the foregoing, which
security interest will be perfected upon the execution and delivery of the Basic
Documents and the filing of the UCC financing statement with the Secretary of
State of the State of Delaware referred to above and will constitute a first
priority perfected security interest therein. No filing or other action, other
than the execution and delivery of the Basic Documents and the filing of the UCC
financing statement with the Secretary of State of the State of Delaware
referred to above, is necessary to perfect and maintain the interest or the
security interest of the Trust in the Receivables, the security interests in the
Financed Vehicles securing the Receivables and the proceeds of each of the
foregoing against third parties.
(m) Upon the execution and delivery of the Purchase Agreement, the Trust
and Servicing Agreement and the Indenture by the respective parties thereto, and
the filing of a UCC financing statement with the Secretary of State of the State
of Delaware reflecting the security interest granted under the Indenture, the
Indenture Trustee will be vested for the benefit of the Noteholders, with a
first priority perfected security interest in the Pledged Assets, subject to no
prior Lien.
(n) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement or the Basic Documents, except such
as are required and have been or will be obtained and made on or prior to the
Closing Date under the Securities Act and such as may be required under state
securities laws.
(o) Since _______ ___, 200_, there has not been any material adverse change
in the business, results of operations, condition (financial or otherwise),
prospects, or material properties or assets of the Seller or the Bank.
(p) The computer tape of the Receivables created as of _______ ___, 200_,
and made available to the Representative by the Servicer, was complete and
accurate in all material respects as of the date thereof and includes a
description of the Receivables that are described in [Schedule ___] to the
Transfer and Servicing Agreement.
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(q) None of the Representing Parties, any of their Affiliates or anyone
acting on behalf of either Representing Party or any of the Representing
Parties' Affiliates has taken any action that would require qualification of the
Trust Agreement under the Trust Indenture Act or registration of any of the UFB
Entities under the Investment Company Act, nor will either Representing Party or
any of their Affiliates act, nor have they authorized or will they authorize any
person to act, in such manner.
(r) As of the Closing Date, the representations and warranties of each UFB
Entity set forth in the Basic Documents will be true and correct.
3. Purchase, Sale, and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, the respective Classes of Notes in the
respective principal amounts and at the respective purchase prices set forth
opposite the name of such Underwriter in Schedule I hereto. Delivery of and
payment for the Notes shall be made at the office of at the office of
___________________, _______________________, _______________, _______________
(or such other place as the Seller and the Representative shall agree), at _____
a.m. _________ time, on _______ ___, 200_ (the "Closing Date"). Delivery of the
Notes shall be made against payment of the purchase price in immediately
available funds drawn to the order of the Seller. The Notes to be so delivered
will be initially represented by one or more Notes registered in the name of
Cede & Co., the nominee of The Depository Trust Company ("DTC"). The interests
of beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive Notes will be
available only under limited circumstances.
4. Offering by Underwriters. It is understood that the Underwriters propose
to offer the Notes for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
5. Covenants of the Representing Parties. The Representing Parties covenant
and agree with each of the Underwriters that:
(a) The Representing Parties will use their respective best efforts to
cause the Registration Statement, and any amendment thereto, if not effective at
the Execution Time, to become effective. Prior to the termination of the
offering of the Notes, the Seller will not file any amendment of the
Registration Statement or supplement to the Prospectus unless the Seller has
furnished you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Seller will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in
accordance with the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of such timely filing.
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(b) The Seller will advise you promptly of any proposal to amend or
supplement the Registration Statement as filed, or the related Prospectus and
will not effect such amendment or supplement without your consent, which consent
will not unreasonably be withheld; the Seller will also advise you promptly of
any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information; and
the Seller will also advise you promptly of the effectiveness of the
Registration Statement (unless the Registration Statement has become effective
prior to Execution Time) and any amendment thereto, when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b) and of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threat of any
proceeding for that purpose, and the Seller will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible the
lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Seller promptly will notify you and
will prepare and file, or cause to be prepared and filed, with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement that will correct such statement or omission, or effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen months after the
Closing Date, the Seller will cause the Trust to make generally available to
Noteholders an earnings statement of the Trust covering a period of at least
twelve months beginning after the Closing Date that will satisfy the provisions
of Section 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus (including the Preliminary Prospectus Supplement,
if any), the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Underwriters
request.
(f) The Seller will arrange for the qualification of the Notes for sale
under the laws of such jurisdictions in the United States as you may reasonably
designate and will continue such qualifications in effect so long as required
for the distribution.
(g) For a period from the date of this Agreement until the retirement of
the Notes, or until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, whichever occurs first, the Seller will deliver
to you the monthly servicing reports, the annual statements of compliance and
the annual independent certified public accountants' reports
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furnished to the Owner Trustee or the Indenture Trustee pursuant to the Trust
and Servicing Agreement, as soon as such statements and reports are furnished to
the Owner Trustee or the Indenture Trustee.
(h) So long as any of the Notes is outstanding, the Seller will furnish to
you (i) as soon as practicable after the end of the fiscal year all documents
required to be distributed to Noteholders 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 or the Seller filed with any
government or regulatory authority that is otherwise publicly available, as you
may reasonably request.
(i) On or before the Closing Date, the Representing Parties shall cause
their respective computer records relating to the Receivables to be marked to
show the Trust's absolute ownership of the Receivables, and from and after the
Closing Date neither Representing Party shall take any action inconsistent with
the Trust's ownership of such Receivables, other than as permitted by the Trust
and Servicing Agreement.
(j) To the extent, if any, that the ratings provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other actions
by the Seller, the Seller shall furnish such documents and take any such other
actions.
(k) For the period beginning on the date of this Agreement and ending seven
days after the Closing Date, unless waived by the Underwriters, none of the
Seller, the Bank or any trust originated, directly or indirectly, by the Seller
or the Bank will offer to sell or sell notes (other than the Notes)
collateralized by, or certificates (other than the Certificates) evidencing an
ownership interest in, automobile retail installment sale contracts or other
similar evidences of installment indebtedness secured by new or used automobiles
or light trucks.
(l) The Seller will cooperate with the Underwriters and use its best
efforts to permit the Notes to be eligible for clearance and settlement through
The Depository Trust Company.
(m) On or prior to [each date of transfer of subsequent Receivables to the
Trust], to deliver to the Representative [a copy of each officer's certificate,
legal opinion and other document required to be prepared in connection with such
transfer, pursuant to the Basic Documents].
(n) Each Representing Party will enter into, and will cause the Trust to
enter into, each Basic Document to which this Agreement or any Basic Document
contemplates such Representing Party or the Trust will be a party on or prior to
the Closing Date.
6. Payment of Expenses. The Representing Parties, jointly and severally,
will pay all expenses incident to the performance of their obligations under
this Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment
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thereto, of the Prospectus and of the Preliminary Prospectus, if any, (ii) the
preparation of this Agreement, (iii) the preparation, issuance and delivery of
the Notes to the Underwriters, (iv) the fees and disbursements of the UFB
Entities' counsel and accountants, (v) the qualification of the Notes under
securities laws in accordance with the provisions of Section 5(f), including
filing fees and the fees and disbursements of counsel for you in connection
therewith and in connection with the preparation of any blue sky or legal
investment survey, (vi) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
(vii) the printing and delivery to the Underwriters of copies of any blue sky or
legal investment survey prepared in connection with the Notes, (viii) any fees
charged by rating agencies for the rating of the Notes, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (x) any fees charged by any insurance
provider in connection with the Notes, (xi) any fees charged by the Owner
Trustee in connection the Trust or the Notes, (xii) any fees charged by the
Indenture Trustee in connection with the Notes, and (xiii) the fees and
disbursements of counsel to the Underwriters incurred as a result of providing
of the legal opinions required under Section 7(g) hereof.
7. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of the Representing
Parties herein, to the accuracy of the statements of officers of the
Representing Parties made pursuant to the provisions hereof, to the performance
by the Representing Parties of their respective obligations hereunder and to the
following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) [6:00 p.m.
New York City time] on the date of determination of the public offering price,
if such determination occurred at or prior to [3:00 p.m. New York City time] on
such date or (ii) [12:00 noon New York City time] on the business day following
the day on which the public offering price was determined, if such determination
occurred after [3:00 p.m. New York City time] on such date.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or you, shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law.
(c) On or prior to the Closing Date, the Underwriters shall have received a
letter or letters, dated as of the date of the Closing Date, of ____________,
independent public accountants, substantially in the form of the drafts to which
the Underwriters have previously agreed and otherwise in form and substance
satisfactory to the Underwriters and counsel to the Underwriters.
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(d) The Seller shall have furnished to the Underwriters the opinion of
____________, counsel for the Representing Parties, dated the Closing Date and
satisfactory in form and substance to the Underwriters, to the effect that:
(i) the Bank is a federally chartered savings association organized
under the laws of the United States with the power and authority to own its
properties and conduct its business as described in the Prospectus, and had
at all relevant times and has the power, authority and legal right to
acquire, own, sell and service the Receivables;
(ii) the Seller has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware with the power and authority to own its properties and conduct its
business as described in the Registration Statement, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of the State of Indiana, and had at all relevant times and has the
power, authority and legal right to acquire, own and sell the Receivables;
(iii) each of the Basic Documents to which the Bank is a party has
been duly authorized, executed and delivered by the Bank and constitutes a
legal, valid and binding obligation of the Bank, enforceable against the
Bank in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally--including the rights
of creditors of banks the accounts of which are insured by the FDIC--from
time to time in effect);
(iv) each of the Basic Documents to which the Seller is a party has
been duly authorized, executed and delivered by the Seller and constitutes
a legal, valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect);
(v) this Agreement has been duly authorized, executed and delivered by
each of the Bank and the Seller;
(vi) the direction by the Seller to the Owner Trustee to execute the
Certificates has been duly authorized by the Seller and, when the
Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered and paid
for pursuant to this Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits of the Trust Agreement;
(vii) the direction by the Seller to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Seller and, when the
Notes have been duly executed and delivered by the Owner Trustee,
authenticated by the Indenture Trustee in accordance with the Indenture,
and delivered and paid for pursuant to this Agreement, the Notes will
constitute legal, valid and binding obligations of the Trust (subject, as
to
11
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditor's rights generally
from time to time in effect) and will be entitled to the benefits of the
Indenture;
(viii) no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any of the Basic
Documents, except such as may be required under the blue sky or securities
laws of any jurisdiction in connection with the purchase and sale of the
Notes by the Underwriters, the filing of the UCC-1 financing statements
relating to the conveyance of the Receivables and the other Pledged Assets
by the Bank to the Seller and of the Receivables and the other Pledged
Assets by the Seller to the Trust and by the Trust to the Indenture Trustee
for the benefit of the Noteholders;
(ix) none of the sale of the Receivables by the Bank to the Seller
pursuant to the Purchase Agreement, the sale of the Receivables and the
other Pledged Assets by the Seller to the Trust pursuant to the Trust and
Servicing Agreement, the pledge of the Receivables and the other Pledged
Assets by the Trust to the Indenture Trustee, the issue and sale of the
Notes, the execution and delivery of this Agreement or any of the Basic
Documents, the consummation of any other of the transactions herein or
therein contemplated or the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or constitute a default
under, any law binding on either the Bank or the Seller or the charter or
by-laws of the Bank or the certificate of formation, limited liability
company agreement or by-laws of the Seller or the terms of any indenture or
other agreement or instrument known to such counsel and to which either the
Bank or the Seller is a party or by which either the Bank or the Seller is
bound, or any judgment, order or decree known to such counsel to be
applicable to the Bank or the Seller of any court, regulatory body,
administrative agency, governmental body, or arbitrator having jurisdiction
over the Bank or the Seller;
(x) other than as disclosed in the Prospectus, there are no actions,
proceedings or investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court, administrative
agency or other tribunal (1) asserting the invalidity of any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents or the execution
and delivery thereof, or (3) that might materially and adversely affect the
performance by either the Bank or the Seller of its obligations under, or
the validity or enforceability of, this Agreement or any Basic Document;
(xi) to the best of such counsel's knowledge, after due inquiry, and
except as set forth in the Prospectus (and any supplement thereto), no
default exists and no event has occurred which, with notice, lapse of time
or both, would constitute a default in the due performance and observance
of any term, covenant or condition of any agreement to which either the
Bank or the Seller is a party or by which it is bound, which default is
12
or would have a material adverse effect on the financial condition,
earnings, prospects, business, or properties of the Bank and the Seller,
taken as a whole;
(xii) the provisions of the Purchase Agreement are effective to
transfer to the Seller all right, title and interest of the Bank in and to
the Receivables, and upon filing of the UCC-1 financing statements UCC-1
financing statements relating to the conveyance of the Receivables and the
other Pledged Assets by the Bank to the Seller, the Receivables and the
other Pledged Assets will be owned by the Seller free and clear of any Lien
except for the Lien of the Trust and Servicing Agreement and the Indenture;
(xiii) the provisions of the Trust and Servicing Agreement are
effective to transfer to the Trust all right, title and interest of the
Seller in and to the Receivables and the other Pledged Assets, and upon
filing of the UCC-1 financing statements UCC-1 financing statements
relating to the conveyance of the Receivables and the other Pledged Assets
by the Seller to the Trust, the Receivables and the other Trust Property
will be owned by the Trust free and clear of any Lien except for the Lien
of the Indenture;
(xiv) the provisions of the Indenture are effective to create, in
favor of the Indenture Trustee for the benefit of the Noteholders as
security for the Trust's obligations under the Notes, a valid security
interest in the Receivables and that portion of the other Trust Property
that is subject to Article 9 of the [Indiana] Uniform Commercial Code (the
"UCC Collateral");
(xv) the UCC-1 financing statement naming the Bank as seller and the
Seller as purchaser is in appropriate form for filing with the Secretary of
State of the State of Indiana; the UCC-1 financing statement naming the
Seller as seller and the Trust as purchaser is in appropriate form for
filing with the Secretary of State of the State of Delaware; the UCC-1
financing statement naming the Trust as debtor and the Indenture Trustee as
secured party is in appropriate form for filing with the Secretary of State
of the State of Delaware; the interest of the Indenture Trustee in the
Receivables and the proceeds thereof, and, to the extent that the filing of
a financing statement is effective to perfect an interest in the other
Pledged Assets under Article 9 of the Uniform Commercial Code as in effect
in the States of Indiana and Delaware, the other Pledged Assets, will be
perfected upon the filing of such financing statements in such filing
offices; and no other interest of any other purchaser from or creditor of
the Bank, the Seller or the Trust is equal or prior to the interest of the
Indenture Trustee in the Receivables and such other Pledged Assets;
(xvi) the Receivables are "tangible chattel paper" under Article 9 of
the Uniform Commercial Code as in effect in each of the States of Indiana
and Delaware;
(xvii) the Basic Documents conform in all material respects with the
descriptions thereof contained in the Prospectus;
13
(xviii) the statements in the final Prospectus Supplement under [the
heading "Summary--Certain Legal Aspects of the Receivables; Repurchase
Obligations", "Summary--ERISA Considerations" and "ERISA Considerations"],
and in the final Base Prospectus under [the headings "Summary of
Terms--Certain Legal Aspects of the Receivables; Repurchase Obligations",
"Summary of Terms--ERISA Considerations", "Risk Factors--Certain Legal
Aspects--Security Interests in Financed Vehicles", "--Consumer Protection
Laws", "--Insolvency Considerations", "Certain Legal Aspects of the
Receivables" and "ERISA Considerations"], to the extent they constitute
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
(xix) the statements contained in the final Prospectus Supplement and
the final Base Prospectus under [the headings "Summary--The Notes", "--The
Certificates", "--Transfer and Servicing Agreements", "Summary of
Terms--The Notes", "--The Certificates", "--Transfer and Servicing
Agreements", "Description of the Notes," "Description of the Certificates"
and "Description of the Transfer and Servicing Agreements"], to the extent
they constitute a summary of the Notes, the Certificates and the Basic
Documents, constitute a fair summary of such instruments and documents;
(xx) assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, no qualification of the
Trust Agreement under the Trust Indenture Act is necessary for the offer
and sale by the Underwriters of the Notes in the manner contemplated by
this Agreement;
(xxi) the Indenture, the Trust and Servicing Agreement and the
Administration Agreement have been duly authorized by the Trust and, when
duly executed and delivered by the Owner Trustee, will constitute the
legal, valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their respective terms, except that (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (y) 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;
(xxii) to the best of such counsel's knowledge, after due inquiry, the
Bank has obtained all material licenses, permits and other governmental
authorizations that are necessary to the conduct of its business; such
licenses, permits and other governmental authorizations are in full force
and effect, and the Bank is in all material respects complying therewith;
and the Bank is otherwise in compliance with all laws, rules, regulations
and statutes of any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on the Bank;
(xxiii) to the best of such counsel's knowledge, after due inquiry,
the Seller has obtained all material licenses, permits and other
governmental authorizations that are necessary to the conduct of its
business; such licenses, permits and other governmental
14
authorizations are in full force and effect, and the Seller is in all
material respects complying therewith; and the Seller is otherwise in
compliance with all laws, rules, regulations and statutes of any
jurisdiction to which it is subject, except where non-compliance would not
have a material adverse effect on the Seller;
(xxiv) all actions required to be taken, and all filings required to
be made, by the Seller or the Bank under the Act and the Exchange Act prior
to the sale of the Notes have been duly taken or made;
(xxv) the Trust is not required to be registered under the Investment
Company Act;
(xxvi) the Indenture has been duly qualified under the Trust Indenture
Act;
(xxvii) the Seller is not, and will not as a result of the offer and
sale of the Notes as contemplated in the Prospectus (and any supplement
thereto) and this Agreement become, an "investment company" as defined in
the Investment Company Act or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act;
(xxviii) to the best of such counsel's knowledge, after due inquiry,
there are no legal or governmental proceedings pending or threatened that
are required to be disclosed in the Registration Statement, other than
those disclosed therein;
(xxix) to the best of such counsel's knowledge, after due inquiry,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are
correct, and no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by reference;
and
(xxx) the Registration Statement has become effective under the Act,
any required filings of the Base Prospectus, the Preliminary Prospectus
Supplement (if any) and the Prospectus, and any supplements thereto, and
the Term Sheets pursuant to Rule 424(b) have been made in the manner and
within the time period required by Rule 424(b), and, to the best of such
counsel's knowledge, after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, and the Term Sheets,
as of their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Exchange Act, the
Trust Indenture Act and the Rules and Regulations.
15
Such counsel shall also state that such counsel has examined the
Registration Statement and the Prospectus and nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement (exclusive of any financial, numerical and statistical information
contained therein or omitted therefrom, as to which such counsel may make no
statement), at the time the Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (exclusive of any financial, numerical and
statistical information contained therein or omitted therefrom, as to which such
counsel may make no statement), at the date thereof or at the Closing Date,
included or includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of any jurisdiction other than the State
of Indiana, the Delaware General Corporation Law, the Delaware Uniform
Commercial Code or the United States, to the extent such counsel deems proper
and specifies in such opinion, upon the opinion of other counsel of good
standing whom such counsel reasonably believes to be reliable and who are
satisfactory to the Underwriters and (B) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the Seller
and public officials.
All references in this Section 7(d) to the Prospectus shall be deemed to
include any amendment or supplement to the Prospectus at the Closing Date.
(e) You shall have received an opinion of ______________, in its capacity
as Indiana state tax counsel, addressed to you and the Indenture Trustee, dated
the Closing Date and satisfactory in form and substance to you, to the effect
that the statements in the final Prospectus Supplement under [the headings
"Summary--Tax Status" and "Certain Federal and State Income Tax Consequences"]
and in the Base Prospectus under [the headings "Summary of Terms--Tax Status"
and "Certain Federal Tax Consequences--Certain State Tax Consequences with
respect to Owner Trusts"], in each case to the extent relating to Indiana tax
consequences, accurately describe the material Indiana tax consequences to
holders of the Notes.
(f) You shall have received an opinion addressed to you of ______________,
in its capacity as special federal tax counsel to the Trust, to the effect that
the statements in the final Prospectus Supplement under the headings
["Summary--Tax Status", "--ERISA Considerations" and "Certain Federal and State
Income Tax Consequences"] and in the Base Prospectus under the headings "Summary
of Terms--Tax Status", "--ERISA Considerations", "Certain Federal Income Tax
Consequences" and "ERISA Considerations"] (to the extent that such sections
(other than such "ERISA Considerations" sections) relate to federal income tax
consequences), to the extent that they constitute statements of matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by
such counsel and accurately describe the material federal income tax
consequences to holders of the Notes.
16
(g) The Underwriters shall have received from _____________, in its
capacity as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Notes, the Prospectus
(as amended or supplemented at the Closing Date) and other related matters as
the Underwriters may reasonably require, and the Seller shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(h) You shall have received an opinion addressed to you of _____________,
counsel to the Indenture Trustee, dated the Closing Date and satisfactory in
form and substance to you, to the effect that:
(i) The Indenture Trustee is a [national] banking [association]
[corporation] duly organized and validly existing under the laws of the
[United States] [State of ________].
(ii) The Indenture Trustee has the full corporate trust power to
accept the offices of indenture trustee under the Indenture and to enter
into and perform its obligations under the Indenture, the Trust and
Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Indenture and the
Administration Agreement and the acceptance of the Trust and Servicing
Agreement and the performance by the Indenture Trustee of its obligations
under the Indenture, the Trust and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
corporate action of the Indenture Trustee and each has been duly executed
and delivered by the Indenture Trustee.
(iv) The Indenture, the Trust and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of the
Indenture Trustee enforceable against the Indenture Trustee in accordance
with their terms under the laws of the State of [Indiana] and the federal
law of the United States.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and the Administration Agreement and the acceptance of the Trust
and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any [State] or United
States federal governmental authority, other than the qualification of the
Indenture Trustee under the Trust Indenture Act.
(vi) Each of the Notes has been duly authenticated by the Indenture
Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Trust and Servicing Agreement, the
Indenture or the Administration Agreement nor the fulfillment of the terms
thereof by the Indenture Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter, bylaws
or other organizational documents of the Indenture Trustee or the terms
17
of any indenture or other agreement or instrument known to such counsel to
which the Indenture Trustee or any of its subsidiaries is a party or is
bound or any judgment, order or decree known to such counsel to be
applicable to the Indenture Trustee or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or any of its
subsidiaries.
(viii) To the best of such counsel's knowledge, after due inquiry,
there is no action, suit or proceeding pending or threatened against the
Indenture Trustee (as trustee under the Indenture or in its individual
capacity) before or by any governmental authority that, if adversely
decided, would materially adversely affect the ability of the Indenture
Trustee to perform its obligations under the Indenture, the Trust and
Servicing Agreement or the Administration Agreement. (ix) The execution,
delivery and performance by the Indenture Trustee of the Trust and
Servicing Agreement, the Indenture and the Administration Agreement will
not subject any of the property or assets of the Trust or any portion
thereof to any lien created by or arising under the Indenture Trustee that
is unrelated to the transactions contemplated in such Agreements.
(i) You shall have received an opinion addressed to you of _____________,
counsel to the Owner Trustee, dated the Closing Date and satisfactory in form
and substance to you, to the effect that:
(i) The Owner Trustee is a [banking corporation duly incorporated] and
validly existing under the laws of the State of Delaware.
(ii) The Owner Trustee has the full corporate trust power to accept
the office of owner trustee under the Trust Agreement and to enter into and
perform its obligations under the Trust Agreement and, on behalf of the
Trust, under the Indenture, the Trust and Servicing Agreement and the
Administration Agreement.
(iii) The execution and delivery of the Trust and Servicing Agreement
and, on behalf of the Trust, of the Indenture, [the Trust and Servicing
Agreement,] the Administration Agreement and the Notes and the performance
by the Owner Trustee of its obligations under the Trust and Servicing
Agreement, the Indenture and the Administration Agreement have been duly
authorized by all necessary corporate action of the Owner Trustee and each
has been duly executed and delivered by the Owner Trustee.
(iv) The Trust and Servicing Agreement, the Indenture and the
Administration Agreement constitute valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee in accordance with
their terms under the laws of the State of [Indiana], the State of Delaware
and the federal law of the United States.
(v) The execution and delivery by the Owner Trustee of the Trust and
Servicing Agreement and, on behalf of the Trust, of the Indenture, [the
Sale and
18
Servicing Agreement,] the Administration Agreement and the Notes do not
require any consent, approval or authorization of, or any registration or
filing with, any Delaware or United States federal governmental authority.
(vi) Each of the Certificates has been duly executed and delivered by
the Owner Trustee as owner trustee and authenticating agent. Each of the
Notes has been duly executed and delivered by the Owner Trustee, on behalf
of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust and Servicing Agreement, the
Indenture or the Administration Agreement nor the fulfillment of the terms
thereof by the Owner Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter, bylaws
or other organizational documents of the Owner Trustee or the terms of any
indenture or other agreement or instrument known to such counsel to which
the Owner Trustee or any of its subsidiaries is a party or is bound, or any
judgment, order or decree known to such counsel to be applicable to the
Owner Trustee or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Owner Trustee or any of its subsidiaries.
(viii) To the best of such counsel's knowledge, after due inquiry,
there is no action, suit or proceeding pending or threatened against the
Owner Trustee (as owner trustee under the Trust Agreement or in its
individual capacity) before or by any governmental authority that, if
adversely decided, would materially adversely affect the ability of the
Owner Trustee to perform its obligations under the Trust Agreement.
(ix) The execution, delivery and performance by the Owner Trustee (as
trustee under the Trust Agreement or in its individual capacity, as the
case may be) of the Trust and Servicing Agreement, the Indenture and the
Administration Agreement will not subject any of the property or assets of
the Trust or any portion thereof to any lien created by or arising under
the Owner Trustee that is unrelated to the transactions contemplated in
such Agreements.
(j) The Underwriters shall have received such opinions, addressed to the
Underwriters and dated the Closing Date, as are delivered to the Rating
Agencies.
(k) The Underwriters shall have received an opinion from _____________,
counsel for the Representing Parties, dated the Closing Date and satisfactory in
form and substance to the Underwriters, regarding the true-sale of the
Receivables by the Bank to the Seller and by the Seller to the Trust and the
conveyance by the Trust of the Receivables and the other Pledged Assets to the
Indenture Trustee for the benefit of the Noteholders.
(l) The Underwriters shall have received an opinion from _____________,
counsel for the Representing Parties, dated the Closing Date and satisfactory in
form and substance to the Underwriters, regarding substantive consolidation.
19
(m) The Underwriters shall have received an opinion from ____________,
[General Counsel] of the Insurer, dated the Closing Date and satisfactory in
form and substance to the Underwriters, addressed to the Underwriters.
(n) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the Seller in
which such officer shall state that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of the Seller contained in this
Agreement and the Basic Documents to which the Seller is a party are true
and correct; the Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements
at or prior to the Closing Date;
(ii) since the date of the most recent financial information included
in the Prospectus, no material adverse change, or any development involving
a prospective material adverse change, in or affecting particularly the
business or properties of the Seller or the Trust has occurred; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(o) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the Bank in
which such officer shall state that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of the Bank contained in this
Agreement and the Basic Documents to which the Bank is a party are true and
correct; the Bank has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements
at or prior to the Closing Date;
(ii) since the date of the most recent financial information included
in the Prospectus, no material adverse change, or any development involving
a prospective material adverse change, in or affecting particularly the
business or properties of the Bank or the Trust has occurred; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
20
(p) The Underwriters shall have received a fully executed Insurance
Agreement by and among the Seller, the Bank and the Insurer, dated as of _______
___, 200_ (the "Insurance Agreement"), and all representations and warranties
thereunder or made pursuant thereto shall be true and correct, and each of the
Bank and the Seller shall have performed its obligations thereunder.
(q) The Policy relating to the Notes shall have been duly executed and
issued at or prior to the Closing Date and shall conform in all material
respects to the description thereof in the Prospectus.
(r) The Underwriters shall have received evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the State of Indiana
reflecting the sale of the Receivables and the other Pledged Assets by the Bank
to the Seller.
(s) The Underwriters shall have received evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the State of Delaware
reflecting the sale of the Receivables and the other Pledged Assets by the
Seller to the Trust and the pledge of the Receivables and the other Pledged
Assets by the Trust to the Indenture Trustee for the benefit of the Noteholders.
(t) The Class A-1 Notes shall have been rated [A-1+] and [P-1], and the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have been
rated [AAA] and [Aaa] by [Standard & Poor's Ratings Services] and [Xxxxx'x
Investors Service, Inc.], respectively. [The Class B Notes shall have been rated
[BBB] and [Baa3] by [Standard & Poor's Ratings Services] and [Xxxxx'x Investors
Service, Inc.], respectively.]
(u) On the Closing Date, the Certificates shall have been issued to the
Seller.
(v) The issuance of the Notes and the Certificates shall not have resulted
in a reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Seller.
(w) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Prospectus, there shall not have been any change or
any development involving a prospective change in or affecting the business or
properties of any UFB Entity the effect of which is, in the judgment of the
Representative, so material and adverse as to make it impractical or inadvisable
to market the Notes as contemplated by the Prospectus.
(x) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Bank's or the Seller's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
21
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Issuer in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 7 will be delivered
at the office of counsel for the Representing Parties, at ___________________,
_______________________, _______________, _______________, on the Closing Date.
8. Reimbursement of Expenses. If, for any reason, the sale of the Notes
provided for herein is not consummated (other than because of an exercise of the
Representative's rights under Section 10(b), (d), (e) or (f)), the Representing
Parties will reimburse the Underwriters upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Notes.
9. Indemnification and Contribution. (a) The Representing Parties, jointly
and severally, agree to indemnify and hold harmless each Underwriter, the
respective directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the preliminary Base Prospectus,
the Term Sheets, the Preliminary Prospectus Supplement (if any), the Base
Prospectus or the Prospectus or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agree to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Representing Parties will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement in, or
omission or alleged omission from, any of such documents, in reliance upon and
in conformity with the Underwriter Information. This indemnity agreement will be
in addition to any liability that the Representing Parties may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless each Representing Party, its directors, its officers and each
person who controls such Representing Party within the meaning of either the
Securities Act or the Exchange Act, against
22
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
preliminary Base Prospectus, the Preliminary Prospectus Supplement (if any), the
Base Prospectus or the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement in, or omission or alleged
omission from, any of such documents, was made in reliance upon and in
conformity with the Underwriter Information, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, but only with reference to the Underwriter
Information. This indemnity agreement will be in addition to any liability that
the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
23
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Representing Parties and each Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Representing Parties and
the several Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Representing Parties on the one
hand and by the Several Underwriters on the other from the offering of the
Notes; provided, however, that in no case shall any Underwriter be responsible
for any amount in excess of the purchase discount or commission applicable to
the Notes purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Representing Parties and each Underwriter shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Representing Parties on the one hand and of the several
Underwriters on the other in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Representing Parties shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses), and benefits
received by any Underwriter shall be deemed to be equal to the total purchase
discounts and commissions received by such Underwriter from the Issuer in
connection with its purchase of Notes hereunder. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Representing Parties on the one hand or
the several Underwriters on the other. The Representing Parties and the several
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation that does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of such Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls a Representing Party within the
meaning of either the Securities Act or the Exchange Act and each officer and
director of a Representing Party shall have the same rights to contribution as
such Representing Party, subject in each case to the applicable terms and
conditions of this paragraph (d).
24
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Issuer prior
to delivery of and payment for the Notes, if, prior to such time, there has
occurred (a) any change, or any development involving a prospective change, in
or affecting particularly the business or properties of the Trust, the Seller or
the Bank that, in the judgment of the Underwriters, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to market
the Notes; (b) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; [(c) any suspension of trading of any securities of the Bank on
any exchange or in the over-the-counter market which, in the judgment of the
Underwriters, makes it impractical or inadvisable to market the Notes;] (d) any
banking moratorium declared by Federal or New York authorities; (e) any outbreak
or escalation of major hostilities in which the United States is involved, any
declaration of war by Congress, or any other substantial national or
international calamity or emergency or any material change in the financial
markets if, in the judgment of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity, emergency or change makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Notes; or (f) a material disruption in securities settlement or
clearance services in the United States.
11. Defaults of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Notes hereunder on the Closing Date and
arrangements satisfactory to the Representative and the Seller for the purchase
of such Notes by other persons are not made within 24 hours after such default,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 13. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
12. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of the
Notes, it will not institute against, or join any other Person in instituting
against, the Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
13. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller and the Bank or any of their officers and each of the Underwriters set
forth in or made pursuant to this Agreement or contained in certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect, regardless of (i) any termination of this Agreement, (ii)
any investigation or statement as to the results thereof made by or on behalf of
any Underwriter or of the Seller or any of their respective representatives,
officers or directors or any controlling person, and (iii) delivery of and
payment for the Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed by the Seller pursuant to Section 6 and the
respective obligations of the Seller and the Underwriters pursuant to Section 9
shall remain in effect. Nothing contained in this Section 13 shall limit the
recourse of the Seller against the Underwriters.
25
14. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at City Securities Corporation, 000 Xxxxx Xxxxxxxxxxxx
Xxxxxx, Xxxxx 0000, P. O. Xxx 00000, Xxxxxxxxxxxx, Xxxxxxx 00000-0000,
Attention: _________ (Fax No. _________); if sent to the Seller, will be mailed,
delivered or telegraphed, and confirmed to it at [name] [address], Attention:
_________; or, if sent to the Bank, will be mailed, delivered or telegraphed and
confirmed to it at [name] [address], Attention: _________; provided, however,
that any notice to an Underwriter pursuant to Section 9 will be mailed,
delivered or telegraphed and confirmed to such Underwriter. Any such notice will
take effect at the time of receipt.
15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 9, and no other person
will have any right or obligations hereunder. No purchaser of Notes from any
Underwriter shall be deemed to be a successor of such Underwriter merely because
of such purchase.
16. Representation. You will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this
Agreement taken by you will be binding upon all the Underwriters.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
18. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of [Indiana].
26
Underwriting Agreement
----------------------
Signature Page
--------------
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 Seller, the Bank and the several
Underwriters in accordance with its terms.
Very truly yours,
UNITED FIDELITY FINANCE, LLC,
By:
---------------------------------
Name:
Title:
UNITED FIDELITY BANK, FSB,
By:
---------------------------------
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
CITY SECURITIES CORPORATION
on behalf of itself and as Representative
of the several Underwriters,
By:
-------------------------------------
Name:
Title:
27
SCHEDULE I
UNITED FIDELITY AUTO TRUST 200_-_
OFFERED SECURITY__ PRINCIPAL AMOUNT PRICE
Class A-1 Notes
---------------
City Securities Corporation $__________ _______%
[Underwriter]_____ $__________ _______%
[Underwriter]_____ $__________ _______%
Class A-2 Notes
---------------
City Securities Corporation $__________ _______%
[Underwriter]_____ $__________ _______%
[Underwriter]_____ $__________ _______%
Class A-3 Notes
---------------
City Securities Corporation $__________ _______%
[Underwriter]_____ $__________ _______%
[Underwriter]_____ $__________ _______%
Class A-4 Notes
---------------
City Securities Corporation $__________ _______%
[Underwriter]_____ $__________ _______%
[Underwriter]_____ $__________ _______%
Class B Notes
-------------
City Securities Corporation $__________ _______%
[Underwriter]_____ $__________ _______%
[Underwriter]_____ $__________ _______%
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