Exhibit 1.1
USAA AUTO OWNER TRUST 20__-[ ]
Asset Backed Notes
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
USAA ACCEPTANCE, LLC
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
------------------------------
______________, 20__
[Underwriter[s]]
[Address]
[As Joint Global Coordinators,
Bookrunners and Representatives of the
Several Underwriters named
on Schedule I hereto]
Dear Ladies and Gentlemen:
USAA Acceptance, LLC, a Delaware limited liability company (the
"Depositor"), proposes to form a Delaware statutory trust, USAA Auto Owner
Trust 20__-[ ] (the "Issuer"), pursuant to an amended and restated trust
agreement to be dated as of [ ], 20__ (the "Trust Agreement"), between the
Depositor and [ ], as owner trustee (the "Owner Trustee"), which will issue
(i) $[ ] principal amount of its Class [ ] [ ]% Asset Backed Notes (the "Class
[ ] Notes"), (ii) $[ ] principal amount of its Class [ ] [ ]% Asset Backed
Notes (the "Class [ ] Notes"), (iii) [ ] principal amount of its Class [ ] [
]% Asset Backed Notes (the "Class [ ] Notes")[,] [and] (iv) $[ ] principal
amount of its Class [ ] [ ]% Asset Backed Notes (the "Class [ ] Notes" and,
together with the Class [ ] Notes, the Class [ ] Notes and the Class [ ]
Notes, the "Underwritten Notes") [and (v) $[ ] principal amount of its Class
[ ] [ ]% Asset Backed Notes (the "Class [ ] Notes" and, together with the
Underwritten Notes, the "Notes")] pursuant to an indenture to be dated as of
[ ], 20__ (the "Indenture"), between the Issuer and [ ], as indenture trustee
(the "Indenture Trustee"). The Issuer will also issue $___________ certificate
balance of its [Class [ ] [ ]% Asset Backed Certificates] [a certificate] (the
"Certificate[s]" and, together with the Notes, the "Securities"). The assets
of the Issuer will include, among other things, a pool of motor vehicle
installment loans made by USAA Federal Savings Bank, a federally chartered
savings association (the "Bank"), and secured by new and used cars and light
duty trucks (the "Receivables"), certain monies due or received thereunder on
or after [ ], 20__, security interests in the vehicles financed thereby,
certain accounts, and the proceeds
thereof, and the proceeds from claims on certain insurance policies. The
Receivables will be transferred to the Depositor by the Bank, as seller (in
such capacity, the "Seller"), pursuant to a receivables purchase agreement to
be dated as of [ ], 20__ (the "Receivables Purchase Agreement"), between the
Seller and the Depositor, as purchaser (the "Purchaser"), and the Depositor
will transfer the Receivables to the Issuer in exchange for the Securities,
pursuant to a sale and servicing agreement to be dated as of [ ], 20__ (the
"Sale and Servicing Agreement"), among the Depositor, the Bank, as Seller and
servicer (in such capacity, the "Servicer"), and the Issuer. The Servicer will
service the Receivables pursuant to the Sale and Servicing Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Sale and Servicing Agreement.
At or prior to the time when sales to purchasers of the Underwritten
Notes were first made to investors by the several Underwriters named in
Schedule I hereto (the "Underwriters"), which was approximately [ ] a.m. on [
], 20__ (the "Time of Sale"), the Depositor had prepared the following
information (collectively, the "Time of Sale Information"): the Preliminary
Prospectus Supplement dated [ ], 20__ to the Prospectus (as defined below)
(together, along with information referred to under the caption "Static Pool
Data" therein regardless of whether it is deemed a part of the Registration
Statement or Prospectus, the "Preliminary Prospectus"). If, subsequent to the
Time of Sale and prior to the Closing Date (as defined below), such
information included an untrue statement of material fact or omitted 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, and as
a result investors in the Underwritten Notes may terminate their old
"Contracts of Sale" (within the meaning of Rule 159 under the Securities Act
of 1933, as amended (the "Securities Act")) for any Underwritten Notes and the
Underwriters enter into new Contracts of Sale with investors in the
Underwritten Notes, then "Time of Sale Information" will refer to the
information conveyed to investors at the time of entry into the first such new
Contract of Sale, in an amended Preliminary Prospectus approved by the
Depositor and the Representatives that corrects such material misstatements or
omissions (a "Corrected Prospectus") and "Time of Sale" will refer to the time
and date on which such new Contracts of Sale were entered into.
This is to confirm the agreement concerning the purchase of the
Underwritten Notes from the Depositor by the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND THE
BANK. Each of the Depositor and the Bank (each, a "Representing Party" and,
collectively, the "Representing Parties") makes the representations and
warranties set forth below. To the extent that a representation or warranty
specifically relates to the Depositor, the representation or warranty solely
with respect to the Depositor is only made by the Depositor and to the extent
a representation or warranty specifically relates to the Bank, the
representation or warranty solely with respect to the Bank is only made by the
Bank.
(a) A registration statement on Form S-3 (No. 333-131356) relating
to the [Securities] [Notes] has been filed by Depositor with the
Securities and Exchange Commission (the "Commission") and has become
effective and is still effective as of the date hereof under the
Securities Act. The Depositor proposes to file with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission
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under the Securities Act (the "Rules and Regulations") a prospectus
supplement dated [ ], 20__ (together with information referred to under
the caption "Static Pool Data" therein regardless of whether it is deemed
a part of the Registration Statement or Prospectus, the "Prospectus
Supplement") to the prospectus dated [ ], 20__, relating to the
[Securities] [Notes] and the method of distribution thereof. Copies of
such registration statement, any amendment or supplement thereto, such
prospectus, the Preliminary Prospectus and the Prospectus Supplement have
been delivered to you. Such registration statement, including exhibits
thereto, and such prospectus, as amended or supplemented to the date
hereof, and as further supplemented by the Prospectus Supplement, are
hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively. The conditions to the use of a registration
statement on Form S-3 under the Securities Act have been satisfied. The
Depositor has filed the Preliminary Prospectus and it has done so within
the applicable period of time required under the Securities Act and the
Rules and Regulations.
(b) The Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, complied and
on the Closing Date will comply in all material respects with the
applicable requirements of the Securities Act and the Rules and
Regulations and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder. The Registration Statement, as of the applicable effective
date as to each part of the Registration Statement pursuant to Rule
430B(f)(2) and any amendment thereto, did not include any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Preliminary Prospectus, as of its date and as of the
Time of Sale, did not contain an untrue statement of a material fact and
did not 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. The Prospectus, as of the date of the
Prospectus Supplement and as of the Closing Date, does not and will not
contain any untrue statement of a material fact and did not and will not
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in the three preceding
sentences do not apply to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T 1) of the Indenture Trustee under the Trust Indenture Act or (ii)
that information contained in or omitted from the Registration Statement
or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Underwriters' Information (as defined
herein). The Indenture has been qualified under the Trust Indenture Act.
(c) The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date will not, contain 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 that the Depositor makes no
representation and warranty with respect to any statements or
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omissions made in reliance upon and in conformity with the Underwriters'
Information.
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects
to the requirements of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as applicable, and the rules
and regulations thereunder; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and the Rules and Regulations.
(e) The Bank has been duly organized and is validly existing as a
federally chartered savings association and is a member of the Federal
Home Loan Bank System. The Bank is in good standing with the Office of
Thrift Supervision and has the power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
such properties are presently owned, leased and operated and as such
business is presently conducted, and had at all relevant times, and now
has, the power, authority and legal right to own and sell the
Receivables.
(f) The Depositor has been duly organized and is validly existing as
a limited liability company under the laws of the State of Delaware, and
all filings required at the date hereof under the Delaware Limited
Liability Company Act (6 Del. C. ss.18-101, et seq.) (the "LLC Act") with
respect to the due formation and valid existence of the Depositor as a
limited liability company have been made; and the Depositor is duly
qualified or registered as a foreign limited liability company to
transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of
ownership of property or the conduct of business, and the failure to so
qualify or register would have a materially adverse effect on the
Depositor and now has the power, authority and legal right to acquire,
own and sell the Receivables.
(g) The representations and warranties of the Bank in Section 3.02
of the Receivables Purchase Agreement will be true and correct as of the
Closing Date.
(h) The representations and warranties of the Depositor in Section
5.1 of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
(i) The representations and warranties of the Bank in Section 6.1 of
the Sale and Servicing Agreement will be true and correct as of the
Closing Date.
(j) Each Representing Party has the power and authority to execute
and deliver this Agreement and to carry out the terms of this Agreement
and the execution, delivery and performance by each Representing Party of
this Agreement has been duly authorized by such Representing Party.
(k) This Agreement has been duly executed and delivered by the
Representing Parties.
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(l) When authenticated by the Owner Trustee in accordance with the
Trust Agreement, the Certificate will be duly issued and entitled to the
benefits and security afforded by the Trust Agreement and the Sale and
Servicing Agreement.
(m) When 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 constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights in general or the rights of
creditors of federal savings associations and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(n) The execution, delivery and performance of this Agreement and
the consummation by each of the Representing Parties of the transactions
contemplated hereby shall not conflict with, result in any breach of any
of the terms and provisions of or constitute (with or without notice or
lapse of time) a default under, the organizational documents of such
Representing Party, or any indenture, agreement or other instrument to
which such Representing Party is a party or by which such Representing
Party is bound, or violate any law or any order, rule or regulation
applicable to such Representing Party of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over such Representing Party or any
of its properties; and, except for the registration of the [Securities]
[Notes] under the Securities Act, the qualification of the Indenture
under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Underwritten Notes by the
Underwriters, no permit, consent, approval of, or declaration to or
filing with, any governmental authority is required in connection with
the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(o) There are no proceedings or investigations pending or, to the
knowledge of each Representing Party, threatened before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over such Representing Party or its
properties (i) asserting the invalidity of this Agreement or any of the
Securities, (ii) seeking to prevent the issuance of any of the Securities
or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that, if determined
adversely to such Representing Party, is reasonably likely to materially
and adversely affect the performance by such Representing Party, as
applicable, of its obligations under, or the validity or enforceability
of, the Securities or this Agreement, or (iv) that may adversely affect
the federal or state income, excise, franchise or similar tax attributes
of the Securities.
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(p) Each Representing Party (i) is not in violation of its
organizational documents, (ii) is not in default and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, agreement, mortgage,
deed of trust or other instrument to which such Representing Party is a
party or by which such Representing Party is bound or to which any of
such Representing Party's property or assets is subject and (iii) is not
in violation in any respect of any law, order, rule or regulation
applicable to such Representing Party or any of such Representing Party's
property of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or any of its property, except, in the case of
clauses (ii) and (iii), for any defaults or violations that would not,
individually or in the aggregate, have a material adverse effect on (A)
the performance by such Representing Party's of its obligations under, or
the validity or enforceability of, the Securities, the Basic Documents or
this Agreement or (B) the condition (financial or otherwise), results of
operations, business or prospects of such Representing Party.
(q) None of the Issuer, the Depositor or the Bank is or upon
issuance of the [Securities] [Notes] and the application of the proceeds
therefrom will be an "investment company" or under the "control" of an
"investment company" within the meaning thereof as defined in the
Investment Company Act of 1940, as amended.
(r) None of the Depositor, the Bank or anyone acting on its behalf
has taken any action that would require qualification of the Trust
Agreement under the Trust Indenture Act.
(s) As of the Time of Sale, the Depositor was not and as of the
Closing Date is not, an "ineligible issuer," as defined in Rule 405 under
the Securities Act.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, the Depositor agrees to cause to be issued by the
Issuer and the Depositor agrees to sell to each of the Underwriters, severally
and not jointly, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Depositor, the respective principal amount of
Underwritten Notes set forth opposite the name of such Underwriter in Schedule
1 hereto at a purchase price equal to (i) with respect to the Class [ ] Notes,
[ ]% of the principal amount thereof, (ii) with respect to the Class [ ]
Notes, [ ]% of the principal amount thereof, (iii) with respect to the Class [
] Notes, [ ]% of the principal amount thereof and (iv) with respect to the
Class [ ] Notes, [ ]% of the principal amount thereof.
The Depositor shall not be obligated to deliver any of the Underwritten
Notes except upon payment in full for all the Underwritten Notes to be
purchased as provided herein.
Delivery of and payment for the Underwritten Notes shall be made at the
office of Sidley Austin LLP, New York, New York, or at such other place as
shall be agreed upon by [ ] and [ ], as Representatives of the Several
Underwriters named herein (the "Representatives"), and the Depositor, at [ ]
a.m., New York time, on [ ], 20__, or
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at such other date or time, not later than five full business days thereafter,
as shall be agreed upon by the Representatives and the Depositor (such date
and time being referred to herein as the "Closing Date"). On the Closing Date,
the Depositor shall deliver or cause to be delivered to the Representatives
for the account of each Underwriter the Underwritten Notes against payment to
or upon the order of the Depositor of the purchase price in immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, each class of
Underwritten Notes shall be represented by one or more global certificates
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"). The interest of the beneficial owners of the Underwritten
Notes will be represented by book-entries on the records of DTC and
participating members thereof. Definitive certificates representing the
Underwritten Notes will be available only under limited circumstances.
3. FURTHER AGREEMENTS OF THE DEPOSITOR AND THE BANK. (a) The Depositor
agrees with each of the several Underwriters:
(i) To file the Prospectus Supplement with the Commission
pursuant to and in accordance with Rule 424(b) of the Rules and
Regulations within the time period prescribed by such rule and
provide evidence satisfactory to the Representatives of such timely
filing.
(ii) During any period in which a prospectus relating to the
[Securities] [Notes] is required to be delivered under the
Securities Act: to advise the Representatives promptly of any
proposal to amend the Registration Statement or amend or supplement
the Prospectus and not to effect any such amendment or
supplementation without the consent of the Representatives; to
advise the Representatives promptly of (A) the effectiveness of any
post-effective amendment to the Registration Statement, (B) any
request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (C)
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) the issuance by
the Commission of any order preventing or suspending the use of any
prospectus relating to the [Securities] [Notes] or the initiation or
threatening of any proceedings for that purpose and (E) the receipt
by the Depositor of any notification with respect to the suspension
of the qualification of the [Securities] [Notes] for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its reasonable best efforts to prevent the
issuance of any such stop order or of any order preventing or
suspending the use of any prospectus relating to the [Securities]
[Notes] or suspending any such qualification and, if any such stop
order or order of suspension is issued, to obtain the lifting
thereof at the earliest possible time.
(iii) If, during any period in which a prospectus relating to
the [Securities] [Notes] is required to be delivered under the
Securities Act, any event shall have occurred as a result of which
the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to
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state any material fact necessary in order to make the statements
therein, in the light of the circumstances, when such Prospectus is
delivered to a purchaser, not misleading, or if for any other reason
it shall be necessary at such time to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the
Representatives immediately thereof, and to promptly prepare and
file with the Commission, subject to paragraph (b) of this Section
4, an amendment or a supplement to the Prospectus such 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 such that the Prospectus
will comply with the Securities Act.
(iv) To furnish promptly to each of the Representatives and
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents
and exhibits filed therewith; and during the period described in
paragraph (a)(iii) of this Section 4, to deliver promptly without
charge to the Representatives such number of the following documents
as the Representatives may from time to time reasonably request: (A)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and each of the Basic
Documents) and (B) any preliminary prospectus supplement, including
the Preliminary Prospectus, the Prospectus and any amendment or
supplement thereto.
(v) During any period in which a prospectus relating to the
[Securities] [Notes] is required to be delivered under the
Securities Act, to file promptly with the Commission any amendment
to the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Depositor or the
Representatives, be required by the Securities Act or requested by
the Commission.
(vi) For so long as any of the Underwritten Notes are
outstanding or until such time as the Underwriters shall cease to
maintain a secondary market in the Underwritten Notes, to furnish to
the Underwriters (A) copies of all materials furnished by the Issuer
to the holders of the Underwritten Notes and all reports and
financial statements furnished by the Issuer to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder and (B) from time to time, such other
information concerning the Depositor filed with any government or
regulatory authority or national securities exchange which is
otherwise publicly available as the Representatives may reasonably
request and such other information concerning the Issuer as the
Representatives may reasonably request.
(vii) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Underwritten
Notes for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the
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continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Underwritten Notes; provided, that in connection therewith the
Depositor shall not be required to qualify to do business or to file
a general consent to service of process in any jurisdiction.
(viii) During the period from the date of the Prospectus to and
including the business day after the Closing Date, to not offer for
sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any
offering of, any securities collateralized by, or evidencing an
ownership interest in, a pool of installment loans for new and used
cars and light duty trucks without the prior written consent of the
Representatives.
(ix) For a period from the date of this Agreement until the
retirement of the Notes, to deliver to you the annual statement of
compliance and the annual independent certified public accountants'
report furnished to the Owner Trustee and the Indenture Trustee,
pursuant to the Sale and Servicing Agreement, as soon as such
statements and reports are furnished to the Owner Trustee and the
Indenture Trustee, respectively.
(x) To cause the Trust to make generally available to
Noteholders and to the Underwriters 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.
(xi) To file with the Commission the final terms of the
[Securities] [Notes] pursuant to Rule 433(d)(5) of the Securities
Act.
(b) The Depositor and the Bank agree with each of the several
Underwriters that to the extent, if any, that the ratings provided with
respect to the Notes by [Xxxxx'x Investors Service, Inc. ("Moody's")] and
[Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. ("S&P")] are conditional upon the furnishing of documents or the taking
of any other actions by the Bank or the Depositor, to furnish such documents
and take any such other actions.
4. WRITTEN COMMUNICATIONS.
(a) It is understood that, subject to the terms and
conditions hereof, the Underwriters propose to offer the Underwritten
Notes for sale to the public as set forth in the Prospectus.
(b) The following terms have the specified meanings for
purposes of this Agreement:
(i) "Free Writing Prospectus" means and includes
any information relating to the Notes disseminated by the
Depositor or any Underwriter that
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constitutes a "free writing prospectus" within the meaning
of Rule 405 under the Securities Act.
(ii) "Issuer Information" means (1) the information
contained in any Underwriter Free Writing Prospectus which
information is also included in the Preliminary Prospectus
(other than Underwriter Information) and (2) information in
the Preliminary Prospectus that is used to calculate or
create any Derived Information.
(iii) "Derived Information" means such written
information regarding the Underwritten Notes as is
disseminated by any Underwriter to a potential investor,
which information is neither (A) Issuer Information nor (B)
contained in (1) the Registration Statement, the Preliminary
Prospectus, the Prospectus Supplement, the Prospectus or any
amendment or supplement to any of them, taking into account
information incorporated therein by reference (other than
information incorporated by reference from any information
regarding the Underwritten Notes that is disseminated by any
Underwriter to a potential investor) or (2) any computer
tape in respect of the [Securities] [Notes] or the related
receivables furnished by the Depositor to any Underwriter.
(c) The Depositor will not disseminate to any potential
investor any information relating to the Underwritten Notes that
constitutes a "written communication" within the meaning of Rule 405
under the Securities Act, other than the Time of Sale Information and
the Prospectus, unless the Depositor has obtained the prior consent
of the Representatives (which consent will not be unreasonably
withheld).
(d) Neither the Depositor nor any Underwriter shall
disseminate or file with the Commission any information relating to
the [Securities] [Notes] in reliance on Rule 167 or 426 under the
Securities Act, nor shall the Depositor or any Underwriter
disseminate any Underwriter Free Writing Prospectus (as defined
below) "in a manner reasonably designed to lead to its broad
unrestricted dissemination" within the meaning of Rule 433(d) under
the Securities Act.
(e) Each Underwriter Free Writing Prospectus shall bear the
following legend, or a substantially similar legend that complies
with Rule 433 under the Securities Act:
The Depositor has filed a registration statement (including
a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read
the prospectus in that registration statement and other
documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing trust,
and this offering. You may get these documents for free by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free
1-[_________].
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(f) In the event any Representing Party becomes aware that,
as of the Time of Sale, any Time of Sale Information contains or
contained any untrue statement of material fact or omits or omitted
to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with all Time of Sale
Information) in light of the circumstances under which they were
made, not misleading (a "Defective Prospectus"), such Representing
Party shall promptly notify the Representatives of such untrue
statement or omission no later than one business day after discovery
and the Depositor shall, if requested by the Representatives, prepare
and deliver to the Underwriters a Corrected Prospectus.
(g) Each Underwriter represents, warrants, covenants and
agrees with the Depositor that:
(i) Other than the Preliminary Prospectus and the
Prospectus, it has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use,
authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes
an offer to sell or solicitation of an offer to buy the Notes,
including but not limited to any "ABS informational and
computational materials" as defined in Item 1101(a) of
Regulation AB under the Securities Act; [provided, however,
that (i) each Underwriter may prepare and convey one or more
"written communications" (as defined in Rule 405 under the
Securities Act) containing no more than the following: (1)
information included in the Preliminary Prospectus with the
consent of the Depositor (except as provided in clauses (2)
through (4) below), (2) information relating to the class,
size, rating, price, CUSIPS, coupon, yield, spread, benchmark,
status and/or legal maturity date of the Notes, the weighted
average life, expected final payment date, the trade date and
payment window of one or more classes of Underwritten Notes,
(3) the eligibility of the Underwritten Notes to be purchased
by ERISA plans and (4) a column or other entry showing the
status of the subscriptions for the Underwritten Notes (both
for the issuance as a whole and for each Underwriter's
retention) and/or expected pricing parameters of the
Underwritten Notes (each such written communication, an
"Underwriter Free Writing Prospectus"); (ii) unless otherwise
consented to by the Depositor, no such Underwriter Free Writing
Prospectus shall be conveyed if, as a result of such
conveyance, the Depositor or the Issuer shall be required to
make any registration or other filing solely as a result of
such Underwriter Free Writing Prospectus pursuant to Rule
433(d) under the Securities Act other than the filing of the
final terms of the Notes pursuant to Rule 433(d)(5) of the
Securities Act; and (iii) each Underwriter will be permitted to
provide confirmations of sale.]
(ii) In disseminating information to prospective
investors, it has complied and will continue to comply fully
with the Rules and Regulations, including but not limited to
Rules 164 and 433 under the Securities Act and the requirements
thereunder for filing and retention of Free Writing
Prospectuses, including retaining any Underwriter Free Writing
Prospectuses they have used but which are not required to be
filed for the required period.
11
(iii) Prior to entering into any Contract of Sale, it
shall convey the Time of Sale Information to the prospective
investor. The Underwriter shall maintain sufficient records to
document its conveyance of the Time of Sale Information to the
potential investor prior to the formation of the related
Contract of Sale and shall maintain such records as required by
the Rules and Regulations.
(iv) If a Defective Prospectus has been corrected with a
Corrected Prospectus, it shall (A) deliver the Corrected
Prospectus to each investor with whom it entered into a
Contract of Sale and that received the Defective Prospectus
from it prior to entering into a new Contract of Sale with such
investor and (B) provide to such investor (w) adequate
disclosure of the contractual arrangement, (x) adequate
disclosure of such investor's rights under its existing
Contract of Sale, (y) adequate disclosure of the new
information in the Corrected Prospectus and (z) a meaningful
ability to elect to terminate or not terminate the existing
Contract of Sale and to elect to enter into or not enter into a
new agreement to purchase the Underwritten Notes.
(v) Immediately following the use of any Underwriter Free
Writing Prospectus containing any "issuer information" as
defined in Rule 433(h)(1) and footnote 271 of the Commission's
Securities Offering Reform Release No. 83-8591 of the
Securities Act it has provided the Depositor a copy of such
Underwriter Free Writing Prospectus, unless such "issuer
information" consists of the terms of the [Securities] [Notes],
and such information is not the final information to be
included in the Prospectus Supplement.
(h) In the event that any Underwriter shall incur any costs
to any investor in connection with the reformation of the Contract of
Sale with such investor that received a Defective Prospectus, the
Representing Parties jointly and severally agree to reimburse such
Underwriter for such costs.
(i) In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a
"Relevant Member State"), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant
Member State (the "Relevant Implementation Date"), each Underwriter
has not made and will not make an offer of Notes to the public in
that Relevant Member State prior to the publication of a prospectus
in relation to Notes which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of
Underwritten Notes to the public in that Relevant Member State at
any time:
(i) to legal entities which are authorized or regulated to
operate in financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
12
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than (euro)43,000,000
and (3) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to Article 3
of the Prospectus Directive.
For purposes of this Section 4(i), the expression an "offer of Underwritten
Notes to the public" in relation to any notes in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Underwritten Notes to be offered so as to
enable an investor to decide to purchase or subscribe the Underwritten Notes,
as the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State, and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(j) Each Underwriter is a person whose ordinary activities
involve it in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of its business
and (ii) it has not offered or sold and will not offer or sell the
Underwritten Notes other than to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or as agent) for the purposes of their
businesses or who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the
purposes of their businesses where the issue of the Underwritten
Notes would otherwise constitute a contravention of Section 19 of
the Financial Services and Markets Act (the "FSMA") by the issuing
entity;
(k) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated
an invitation or inducement to engage in investment activity (within
the meaning of Section 21 of the FSMA) received by it in connection
with the issue or sale of the Underwritten Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Issuer; and
(l) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by
it in relation to the Underwritten Notes in, from or otherwise
involving the United Kingdom.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties of
the Representing Parties contained herein, to the accuracy of the statements
of the Representing Parties made in any certificates pursuant to the
provisions hereof, to the performance by the Representing Parties of their
respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the
13
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the
reasonable satisfaction of the Representatives; and the Depositor
shall have filed the Prospectus Supplement and the Preliminary
Prospectus and the final terms of the Notes with the Commission
pursuant to Rule 424(b) and Rule 433 of the Securities Act, as
applicable, within the time period prescribed by such rules.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Securities, each of the Basic Documents, the Registration Statement
and the Prospectus, and all other legal matters relating to such
agreements and the transactions contemplated hereby and thereby
shall be satisfactory in all material respects to counsel for the
Underwriters, and the Representing Parties shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(c) The Trust Agreement shall have been duly executed and
delivered by the Depositor and the Owner Trustee and the
Certificates shall have been duly executed and delivered by the
Owner Trustee on behalf of the Issuer and duly authenticated by the
Owner Trustee.
(d) The Sale and Servicing Agreement shall have been duly
executed and delivered by the Depositor, the Bank, as Seller and
Servicer and the Issuer and agreed and accepted by the Indenture
Trustee and the Owner Trustee.
(e) The Indenture shall have been duly executed and delivered
by the Issuer and the Indenture Trustee and the Notes shall have
been duly executed and delivered by the Issuer and duly
authenticated by the Indenture Trustee.
(f) The Receivables Purchase Agreement shall have been duly
executed and delivered by the Seller and the Depositor.
(g) The Representatives shall have received evidence
satisfactory to them and their counsel that within ten days of the
Closing Date, UCC-1 financing statements required to be filed on or
prior to the Closing Date pursuant to the Basic Documents have been
filed.
(h) Xxxxxxx X. Broker, Esq., Vice President and Banking Counsel
of the Bank, shall have furnished to the Representatives his written
opinion, addressed to the Underwriters and dated the Closing Date,
regarding the due organization and power and authority of the Bank,
the due authorization, execution and delivery by the Bank of the
Basic Documents to which it is a party, no conflicts or violations
of its charter or by-laws, contracts or law and other related
matters, in form and substance reasonably satisfactory to the
Representatives and their counsel.
(i) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to the Depositor, shall have furnished to the Representatives their
written opinion, as
14
counsel to the Depositor, addressed to the Underwriters and dated
the Closing Date, regarding (i) the due organization of the
Depositor and (ii) other general Delaware law matters with respect
to the Depositor, including, without limitation, the due
authorization, execution and delivery of the Basic Documents by the
Depositor, in each case, in form and substance reasonably
satisfactory to the Representatives and their counsel.
(j) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to the Issuer, shall have furnished to the Representatives their
written opinion, as counsel to the Issuer, addressed to the
Underwriters and dated the Closing Date, regarding (i) the due
organization of the Issuer, (ii) the enforceability of the Trust
Agreement, (iii) other general Delaware law matters with respect to
the Issuer, including, without limitation, the due authorization,
execution and delivery of the Basic Documents by the Issuer and the
due authorization and issuance of the Certificates, (iv) the
perfection and priority of the security interest created by the Sale
and Servicing Agreement and (v) the perfection and priority of the
security interest created by the Indenture, in each case, in form
and substance reasonably satisfactory to the Representatives and
their counsel.
(k) Sidley Austin LLP shall have furnished to the
Representatives their written opinion, addressed to the Underwriters
and dated the Closing Date, regarding (i) the enforceability of the
Basic Documents (other than the Trust Agreement and the Note
Depository Agreement), (ii) the validity of the security interests
created thereby, (iii) the due issuance and enforceability of the
Notes, (iv) the qualification of the Indenture under the Trust
Indenture Act, (v) no violations of law, (vi) compliance with
applicable federal securities laws, (vii) exemption of the Bank, the
Depositor and the Issuer from registration as an investment company
under the Investment Company Act of 1940, as amended, (viii) the
conformity in all material respects of each of the Basic Documents
to the description thereof contained in the Registration Statement,
the Prospectus and the Time of Sale Information, (ix) the
Registration Statement, the Preliminary Prospectus and the
Prospectus appear on their face to be responsive in all material
respects to the applicable Rules and Regulations and (x) negative
assurances concerning the Prospectus and the Time of Sale
Information, in each case in form and substance reasonably
satisfactory to the Representatives and their counsel.
(l) Gardere Xxxxx Xxxxxx LLP, special Texas counsel to the
Depositor, shall have furnished to the Representatives their written
opinion, addressed to the Underwriters and dated the Closing Date,
regarding the perfection and priority of the security interest
created by the Receivables Purchase Agreement, in form and substance
reasonably satisfactory to the Representatives and their counsel.
(m) Sidley Austin LLP shall have furnished to the
Representatives their written opinion, addressed to the Underwriters
and dated the Closing Date, with respect to certain matters relating
to the transfer of the Receivables by the Seller to the Depositor,
in form and substance reasonably satisfactory to the Representatives
and their counsel.
15
(n) Sidley Austin LLP shall have furnished to the
Representatives their written opinion, addressed to the Underwriters
and dated the Closing Date, to the effect that (i) the Issuer will
not be an association (or a publicly traded partnership) taxable as
a corporation for federal income tax purposes, (ii) the Underwritten
Notes will be characterized as indebtedness for federal income tax
purposes and (iii) the statements set forth in the Preliminary
Prospectus and in the Prospectus under the heading "Certain Federal
Income Tax Consequences", to the extent that they are statements of
law are true and correct in all material respects, in form and
substance reasonably satisfactory to the Representatives and their
counsel.
(o) The Representatives shall have received from [ ], counsel
for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may
require, and the Bank and the Depositor shall have furnished to such
counsel such documents as they reasonably request for enabling them
to pass upon such matters.
(p) [ ], counsel to the Owner Trustee, shall have furnished to
the Representatives their written opinion, as counsel to the Owner
Trustee, addressed to the Underwriters and dated the Closing Date,
regarding the due organization of the Owner Trustee, the due
authorization, execution and delivery by the Owner Trustee of the
Trust Agreement, no conflicts or violations of organizational
documents, contracts or law and other related matters, in form and
substance reasonably satisfactory to the Representatives and their
counsel.
(q) [ ], counsel to the Indenture Trustee, shall have furnished
to the Representatives their written opinion, as counsel to the
Indenture Trustee, addressed to the Underwriters and dated the
Closing Date, regarding the due organization of the Indenture
Trustee, the due authorization, execution and delivery by the
Indenture Trustee of the Basic Documents to which it is a party, no
conflicts or violations of organizational documents, contracts or
law and other related matters, in form and substance reasonably
satisfactory to the Representatives and their counsel.
(r) The Representatives shall have received a letter dated the
date hereof (the "Procedures Letter") from a firm of independent
nationally recognized certified public accountants acceptable to the
Representatives verifying the accuracy of such financial and
statistical data contained in the Prospectus (including any static
pool data included therein pursuant to Item 1105 of Regulation AB
under the Securities Act) as the Representatives shall deem
advisable. In addition, if any amendment or supplement to the
Prospectus made after the date hereof contains financial or
statistical data, the Representatives shall have received a letter
dated the Closing Date confirming the Procedures Letter and
providing additional comfort on such new data.
(s) The Representatives shall have received a certificate,
dated the Closing Date, of any of the Chairman of the Board, the
President, any Senior Vice President, any Vice President or the
chief financial officer of each of the Bank and the
16
Depositor stating that (i) the representations and warranties of the
Bank or the Depositor, as applicable, contained in this Agreement
and the Basic Documents to which it is a party are true and correct
on and as of the Closing Date, (ii) the Bank or the Depositor, as
applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and
under such agreements at or prior to the Closing Date, (iii) 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 his or her knowledge, are contemplated by the
Commission, and (iv) since [ ], 20__, there has been no material
adverse change in the financial position or results of operations of
the Bank or the Depositor, as applicable, or the Issuer or any
change, or any development including a prospective change, in or
affecting the condition (financial or otherwise), results of
operations, business or prospects of the Bank or the Depositor, as
applicable, or the Issuer except as set forth in or contemplated by
the Registration Statement and the Prospectus.
(t) The Representatives shall have received a letter from
[Xxxxx'x] stating that (i) the Class [ ] Notes have received a
rating of ["Prime-1]" and (ii) the Class [ ] Notes, the Class [ ]
Notes and the Class [ ] Notes have received a rating of ["Aaa"].
(u) The Representatives shall have received a letter from S&P
stating that (i) the Class [ ] Notes have received a rating of
["A-1+"] and (ii) the Class [ ] Notes, the Class [ ] Notes and the
Class [ ] Notes have received a rating of ["AAA"].
(v) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American
Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction or (ii) a general moratorium on
commercial banking activities shall have been declared by Federal or
New York State authorities or (iii) there shall have been any
material disruption in commercial banking securities settlement or
clearance services in the United States or (iv) an outbreak or
escalation of hostilities or a declaration by the United States of a
national emergency or war or any other substantial national or
international calamity or emergency as to make it, in the reasonable
judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwritten Notes on the terms and in the
manner contemplated in the Prospectus.
(w) The Representatives shall have received from the Indenture
Trustee, a certificate stating that any information contained in the
Statement of Eligibility and Qualification (Form T-1) filed with the
Registration Statement, is true, accurate and complete.
17
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
6. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representatives, in their absolute discretion, by notice
given to and received by the Depositor or the Bank prior to delivery of and
payment for the Underwritten Notes if, prior to that time, any of the events
described in Section 6(v) shall have occurred or any of the other conditions
described in Section 6 shall not be satisfied.
7. DEFAULTING UNDERWRITERS.
(a) If any one or more of the Underwriters shall fail to
purchase and pay for any of the Underwritten Notes agreed to be
purchased by such Underwriter hereunder on the Closing Date, and such
failure constitutes a default in the performance of its or their
obligations under this Agreement, the Representatives may make
arrangements for the purchase of such Underwritten Notes by other
persons satisfactory to the Bank, the Depositor and the
Representatives, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase
the Underwritten Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date in the
respective proportions which the principal amount of Underwritten
Notes set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the aggregate principal
amount of Underwritten Notes set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Underwritten Notes on the Closing
Date if the aggregate principal amount of Underwritten Notes which
the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds one-eleventh of the aggregate principal
amount of the Underwritten Notes to be purchased on the Closing Date,
and any remaining non-defaulting Underwriter shall not be obligated
to purchase in total more than 110% of the principal amount of the
Underwritten Notes which it agreed to purchase on the Closing Date
pursuant to Section 2. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the
Representatives, the Bank and the Depositor do not elect to purchase
the Underwritten Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter, the Bank or the Depositor, except that the Bank and the
Depositor will continue to be liable for the payment of expenses to
the extent set forth in Sections 9 and 13 and except that the
provisions of Sections 10 and 11 shall not terminate and shall remain
in effect. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule 1 hereto who,
pursuant to this Section 8, purchases Underwritten Notes which a
defaulting Underwriter agreed but failed to purchase.
18
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its
default. If other Underwriters are obligated or agree to purchase the
Underwritten Notes of a defaulting Underwriter, any of the
Representatives, the Bank or the Depositor may postpone the Closing
Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Bank and the Depositor
or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement,
and the Depositor agrees to file promptly any amendment or supplement
to the Registration Statement or the Prospectus that effects any such
changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) notice shall have
been given pursuant to Section 7 terminating the obligations of the
Underwriters hereunder, (b) the Depositor shall fail to tender the
Underwritten Notes for delivery to the Underwriters for any reason permitted
under this Agreement or (c) the Underwriters shall decline to purchase the
Underwritten Notes for any reason permitted under this Agreement, the Bank
shall reimburse the Underwriters for the fees and expenses of their counsel
and for such other out-of-pocket expenses as shall have been reasonably
incurred by them in connection with this Agreement and the proposed purchase
of the Underwritten Notes, and upon demand the Bank shall pay the full amount
thereof to the Representatives. If this Agreement is terminated pursuant to
Section 7 by reason of the default of one or more Underwriters, the Bank shall
not be obligated to reimburse any defaulting Underwriter on account of those
expenses.
9. INDEMNIFICATION.
(a) The Representing Parties, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act (collectively referred to for the purposes of this
Section 9 and Section 10 as the Underwriter) against any loss, claim,
damage or liability, joint or several, to which that Underwriter may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage or liability (or any action in respect
thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus
or in any amendment or supplement thereto or in the Issuer
Information or in any computer tape in respect of the Notes or the
related receivables furnished by the Depositor to any Underwriter or
(ii) 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 case of Issuer Information, when
considered together with the Preliminary Prospectus), in light of the
circumstances under which they are made, not misleading, and shall
reimburse each Underwriter for any legal or other expenses reasonably
incurred by that Underwriter directly in connection with
investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss,
claim, damage or liability (or any action in respect thereof) as such
expenses are incurred; provided, however, that the Representing
Parties shall not be liable in any such case to the extent that any
such loss, claim, damage or liability (or any action in respect
thereof) arises out of or is based upon an
19
untrue statement or alleged untrue statement in or omission or
alleged omission from (x) any preliminary prospectus supplement, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with the Underwriters'
Information or (y) any Statement of Eligibility and Qualification
(Form T-1) filed with the Registration Statement.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless each Representing Party, each of its
directors, each officer of the Depositor who signed the Registration
Statement and each person, if any, who controls a Representing Party
within the meaning of Section 15 of the Securities Act (collectively
referred to solely for the purposes of this Section 9 and Section 10
as the "Representing Party Indemnified Parties"), against any loss,
claim, damage or liability, joint or several, to which the
Representing Party Indemnified Parties may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage or
liability (or any action in respect thereof) arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus supplement, the
Registration Statement, the Preliminary Prospectus or the Prospectus
or in any amendment or supplement thereto or in any Derived
Information or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they are made, not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission (A) in any preliminary prospectus supplement, the
Registration Statement, the Preliminary Prospectus or the Prospectus
or in any amendment or supplement thereto was made in reliance upon
and in conformity with the written information furnished to the Bank
and the Representing Parties by or on behalf of such Underwriter
specifically for use therein or (B) in the Derived Information that
does not arise out of or is not based upon an error or material
omission in the information contained in the Preliminary Prospectus
or in any computer tape in respect of the Notes or the related
receivables furnished by the Depositor to any Underwriter, and shall
reimburse Representing Party Indemnified Parties for any legal or
other expenses reasonably incurred by the Representing Party
Indemnified Parties in connection with investigating or preparing to
defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage or liability (or any
action in respect thereof) as such expenses are incurred. The parties
acknowledge and agree that the written information furnished to the
Representing Parties through the Representatives by or on behalf of
the Underwriters (the "Underwriters' Information") consists [(x) with
respect to the Preliminary Prospectus, solely of the first paragraph
of text exclusive of the following table and the fourth paragraph of
text exclusive of the following table under the caption
"Underwriting" in the Preliminary Prospectus and the second, third
and fourth paragraphs of text and the second sentence in the sixth
paragraph of text under the caption "Underwriting-General" in the
Preliminary Prospectus and (y) with respect to the Prospectus
Supplement, solely of the first paragraph of text including the
following table and the fourth paragraph of text including the
following table under the caption "Underwriting" in the Prospectus
Supplement and the second, third and fourth paragraphs of text and
the second sentence in the sixth
20
paragraph of text under the caption "Underwriting-General" in the
Prospectus Supplement.]
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of any claim or the commencement of any
action, the indemnified party shall, 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 claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent it has
been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise
than under this Section 9. If any such claim or action shall be
brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however, an indemnified party shall have the
right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party
will be at the expense of such indemnified party unless (i) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential
conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or
(iv) the indemnifying party has not in fact employed counsel
reasonably satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be
at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of
more than one separate firm of attorneys (in addition to any local
counsel) at any one time for all such indemnified party or parties.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent,
which shall not be unreasonably withheld, but if settled with its
written
21
consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceedings and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
The obligations of the Representing Parties and the Underwriters in
this Section 9 and in Section 10 are in addition to any other liability which
the Representing Parties or the Underwriters, as the case may be, may
otherwise have.
10. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Representing Parties on the one hand and the
Underwriters on the other from the offering of the Underwritten Notes or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Representing Parties on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, as well as any other relevant equitable considerations.
The relative benefits received by the Representing Parties on the one hand and
the Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Underwritten Notes purchased under this Agreement (before deducting expenses)
received by the Representing Parties bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Underwritten
Notes purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus Supplement. The relative fault 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 Representing
Parties on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The Representing Parties and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 10 were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability referred to above in this Section 10 shall be deemed to
include, subject to the limitations on the fees and expenses of separate
counsel set forth in Section 9, for purposes of this Section 10, any
22
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or any action in
respect thereof. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Notes underwritten by it
and distributed to the public were offered to the public less the amount of
any damages which such Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to indemnify as provided in Section 9 and contribute
as provided in this Section 10 are several in proportion to their respective
underwriting obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Representing
Parties and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Representing Parties and their
respective successors and the controlling persons and officers and directors
referred to in Sections 9 and 10 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. EXPENSES. The Representing Parties agree with the Underwriters to
pay (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Notes and any taxes payable in connection therewith; (b)
the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary prospectus
supplement (including the Preliminary Prospectus), the Prospectus and any
amendment or supplement to the Prospectus, including, without limitation, the
Prospectus Supplement, all as provided in this Agreement; (d) the costs of
printing, reproducing and distributing this Agreement and any other
underwriting and selling group documents and the Term Sheet by mail, telex or
other means of communications; (e) the fees and expenses of qualifying the
Notes under the securities laws of the several jurisdictions as provided in
Section 3(a)(vii) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by [Xxxxx'x] and [S&P] for rating the
Notes; (g) all fees and expenses of the Owner Trustee and the Indenture
Trustee and their respective counsel; (h) the amounts set forth in Section
4(h); and (i) all other costs and expenses incident to the performance of the
obligations of the Representing Parties under this Agreement; provided, that
except as otherwise provided in this Section 12 and in Section 8, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Underwritten Notes which
they may sell and the expenses of advertising any offering of the Underwritten
Notes made by the Underwriters.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Representing Parties and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Underwritten Notes and shall remain in full force and
23
effect, regardless of any (i) termination or cancellation of this Agreement,
(ii) any investigation made by or on behalf of any of them or any person
controlling any of them or (iii) acceptance of and payment for the
Underwritten Notes.
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail or facsimile transmission and confirmed to c/o [ ], Attention:
[ ]; and [ ], Attention: [ ];
(b) if to the Depositor, shall be delivered or sent by mail
or facsimile transmission and confirmed to the address of the
Depositor set forth in the Registration Statement, Attention: General
Counsel; and
(c) if to the Bank, shall be delivered or sent by mail or
facsimile transmission and confirmed to the address of the Bank set
forth in the Registration Statement, Attention: General Counsel.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Bank and the Depositor shall be
entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by the Representatives.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. NO FIDUCIARY DUTY. Each of the Depositor and the Bank
acknowledges and agrees that each of the Underwriters is acting solely in the
capacity of an arm's length contractual counterparty to the Depositor and the
Bank with respect to the offering of Underwritten Notes contemplated hereby
(including in connection with determining the terms of the offering) and not
as a financial advisor or a fiduciary to, or an agent of, the Depositor, the
Bank or any other person. In addition, neither the Representatives nor any
other Underwriter is advising the Depositor, the Bank or any other person as
to any legal, tax, investment, accounting or
24
regulatory matters in any jurisdiction. Each of the Depositor and the Bank
shall consult with its own advisors concerning such matters, and the
Underwriters shall have no responsibility or liability to either the Depositor
or the Bank with respect thereto. Any review by the Underwriters of the
Depositor, the Bank, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the
Underwriters and shall not be on behalf of either the Depositor or the Bank.
25
If the foregoing is in accordance with your understanding of the
agreement between the Bank, the Depositor and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
USAA ACCEPTANCE, LLC
By: _______________________________
Name:
Title:
USAA FEDERAL SAVINGS BANK
By: _______________________________
Name:
Title:
Accepted:
[ ]
By: _____________________________
Authorized Signatory
Accepted:
[ ]
By: _____________________________
Authorized Signatory
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
SCHEDULE 1
Principal Amount Principal Amount Principal Amount Principal Amount
of Class [ ] of Class [ ] of Class [ ] of Class [ ]
Underwriter Notes Notes Notes Notes
----------- ----------------- ----------------- ----------------- ---------------
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
-------------------- ------------------ ------------------ ----------------
Total...................................... $ $ $ $
-------------------- ------------------ ------------------ ----------------
