EXHIBIT 1.2
HOUSEHOLD AUTOMOTIVE TRUST ___
SERIES _____
$___________ ___% Class A Certificates
UNDERWRITING AGREEMENT
[Name of Lead Underwriter]
As Representative of the Underwriters
[address] [date]
Dear Sirs:
Household Finance Corporation, a corporation organized and
existing under the laws of Delaware, individually ("HFC") and as Master
Servicer (the "MASTER SERVICER"), Household Auto Receivables Corporation, a
corporation organized and existing under the laws of Nevada and a wholly
owned subsidiary of HFC, individually ("HARC") and as Seller (the "SELLER"),
and Household Automotive Finance Corporation, a corporation organized and
existing under the laws of Delaware and wholly owned subsidiary of HFC
("HAFC"), agree with you as follows:
Section 1. ISSUANCE AND SALE OF SERIES _____ CERTIFICATES.
The Seller has authorized the issuance and sale of $___________ ___% Class A
Certificates (the "SERIES _____ OFFERED CERTIFICATES"). The Series _____
Offered Certificates are to be issued by Household Automotive Trust ___ (the
"TRUST") pursuant to an Pooling and Servicing Agreement, dated as of
____________, (the "POOLING AND SERVICING AGREEMENT") by and among HFC, the
Master Servicer, the Trust and __________________, a [New York] banking
corporation, as trustee (the "TRUSTEE"). In addition to the Series _____
Offered Certificates, the Trust will also issue the Series _____ Non-Offered
Certificates (the "SERIES _____ NON-OFFERED CERTIFICATES") pursuant to the
Pooling and Servicing Agreement, dated as of ____________. The Series _____
Offered Certificates and the Series _____ Non-Offered Certificates are
referred to herein collectively as the "SERIES _____ SECURITIES." The assets
of the Trust will include a pool of non-prime retail installment sales
contracts secured by new or used automobiles, light duty trucks and vans (the
"RECEIVABLES") and certain monies due thereunder on or after __________ (the
"CUT-OFF DATE").
As used herein, the term "SELLER AGREEMENTS" means the
Pooling and Servicing Agreement, the Master Receivables Purchase Agreement
dated as of ____________ between the Seller and HAFC (the "MASTER RECEIVABLES
PURCHASE AGREEMENT") and this Underwriting
Agreement (this "AGREEMENT"); the term "HAFC AGREEMENTS" means the Master
Receivables Purchase Agreement and this Agreement; the term "HFC AGREEMENTS"
means the Pooling and Servicing Agreement and this Agreement.
HFC, the Seller and HAFC are direct or indirect
subsidiaries of Household International, Inc. ("HOUSEHOLD"). HFC, the Seller
and HAFC are collectively referred to herein as the "HOUSEHOLD ENTITIES").
The Series _____ Offered Certificates are being purchased
by the Underwriters named in Schedule 1 hereto, and the Underwriters are
purchasing, severally, only the Series _____ Offered Certificates set forth
opposite their names in Schedule 1, except that the amounts purchased by the
Underwriters may change in accordance with Section 10 of this Agreement.
[Name of Lead Underwriter] is acting as representative of the Underwriters
and in such capacity, is hereinafter referred to as the "REPRESENTATIVE."
The offering of the Series _____ Offered Certificates will
be made by the Underwriters and the Household Entities understand that the
Underwriters propose to make a public offering of the Series _____ Offered
Certificates for settlement on ___________, as the Underwriters deem
advisable.
None of the Series _____ Non-Offered Certificates are being
purchased by the Underwriters hereby.
Defined terms used herein and not otherwise defined shall
have their respective meanings as set forth in Section 1.1 of the Pooling and
Servicing Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES.
A. HAFC and the Seller, individually, represent and warrant
to, and agree with, the Underwriters as set forth in this Section 2(A).
Certain terms used in this Section 2(A) are defined in the second paragraph
of subsection 2(A)(i) below.
(i) The Seller meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the
"ACT"). A registration Statement on For S-3 (no.
333-______) has (a) been prepared by the Seller on such
Form in conformity with the requirements of the Act and the
rules and regulations of the United States Securities and
Exchange Commission (the "COMMISSION") thereunder, (b) been
filed with the Commission and (c) been declared effective
by the Commission, and no stop order suspending the
effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been
initiated or threatened, by the Commission. Copies of such
Registration Statement have been delivered by the Seller to
the Underwriters. There are no contracts or documents of
the Seller which are required to be filed as exhibits to
the Registration Statement pursuant to the Act or the rules
and regulations of the Commission which have not been so
filed or incorporated by reference therein on or prior to
the Effective Date of the Registration Statement.
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The terms which follow, when used in this Agreement, shall have the meanings
indicated. The term "EFFECTIVE DATE" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective under the Act. "EXECUTION TIME" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. The term "BASE PROSPECTUS" means the prospectus included in the
Registration Statement. The term "PROSPECTUS SUPPLEMENT" means the prospectus
supplement dated the date hereof, specifically relating to the Notes, as
filed with the Commission pursuant to Rule 424 of the Rules and Regulations.
The term "PROSPECTUS" means, together, then Base Prospectus and the
Prospectus Supplement. "REGISTRATION STATEMENT" shall mean the registration
statement referred to in the preceding paragraph and any registration
statement required to be filed under the Act or rules thereunder, including
amendments, all documents incorporated or deemed to be incorporated by
reference therein, exhibits and financial statements, in the form in which it
has or shall become effective and, in the event that any post-effective
amendment thereto becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as amended or
supplemented pursuant to the Act or rules thereunder or the Exchange Act or
rules thereunder. Such term shall include Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "RULE 424"
and "RULE 430A" refer to such rules under the Act. "RULE 430A INFORMATION"
means information with respect to the Series _____ Certificates and the
offering thereof permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. The "RULES AND REGULATIONS" shall
mean the rules and regulations of the Commission. All references in this
Agreement to financial statements and schedules and other information which
is "contained," included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference
in the Registration Statement or the Prospectus, as the case may be.
(ii) On the Effective Date, the Registration
Statement did or will comply in all material respects with
the applicable requirements of the Act and the Rules and
Regulations thereunder; assuming compliance by each
Underwriter with Sections 3(a), 3(b), 3(c) and 3(f) hereof
on the Effective Date and when the Prospectus is first
filed (if required) in accordance with Rule 424(b) and on
the Closing Date, the Prospectus will comply in all
material respects with the applicable requirements of the
Act and the Rules and Regulations; on the Effective Date,
the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and,
on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the
date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the Statements therein, in the light of the
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circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that HAFC and the Seller make no
representations or warranties as to the information
contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with
information furnished in writing to HAFC or the Seller by
the Representative specifically for use in connection with
the preparation of the Registration Statement or the
Prospectus. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the Exchange Act and the Rules and
Regulations of the Commission under the Exchange Act, and,
when read together with the other information in the
Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing
Date, will not contain an untrue statement of a material
fact or omit to state 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.
(iii) Each of HAFC and the Seller is a
corporation duly organized and validly existing and in good
standing under the laws of its jurisdiction of
incorporation. Each of HAFC and the Seller has all
requisite power and authority to own its properties and
conduct its business as presently conducted and is duly
qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction which requires
such qualification, except where failure to have such
requisite power and authority or to be so qualified would
not have a material adverse effect on the business or
consolidated financial condition of HAFC or the Seller.
(iv) Neither HAFC nor the Seller is in violation
of its certificate of incorporation or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be
bound, or to which any of the property or assets of the
Seller or HAFC, as the case may be, is subject, except
where any such violation or default would not have a
material adverse effect on the transactions contemplated by
this Agreement.
(v) The execution, delivery and performance by
the Seller of each Seller Agreement, the issuance of the
Series _____ Securities and the consummation of the
transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary action or
proceedings and will not conflict with or constitute a
breach of, or default under, or, other than as contemplated
in the Registration Statement, result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Seller pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Seller is a party or by which it
may be bound, or to
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which any of the property or assets of the Seller is
subject, nor will such action result in any violation of
the provisions of the certificate of incorporation or
by-laws of the Seller or any applicable law, administrative
regulation or administrative or court decree, except where
any such conflict, breach, default, encumbrance or
violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(vi) The execution, delivery and performance by
HAFC of each HAFC Agreement, the issuance of the Series
_____ Securities and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all necessary action or proceedings and will
not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or, other than as
contemplated by the Registration Statement, assets of HAFC
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which HAFC is
a party or by which it may be bound, or to which any of the
property or assets of HAFC is subject, nor will such action
result in any violation of the provisions of the charter or
by-laws of HAFC or any applicable law, administrative
regulation or administrative or court decree, except where
any such conflict, breach, default, encumbrance or
violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(vii) Each Seller Agreement has been, or when
executed and delivered, will have been, duly executed and
delivered by the Seller; and each Seller Agreement
constitutes, or, when executed and delivered, will
constitute, legal, valid and binding instruments
enforceable against the Seller in accordance with their
respective terms, subject as to enforceability (A) to
applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors'
rights generally, (B) to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law) and (C) with respect to
rights of indemnity under this Agreement, to limitations of
public policy under applicable securities laws.
(viii) Each HAFC Agreement has been, or, when
executed and delivered, will have been duly executed and
delivered by HAFC; and each Seller Agreement constitutes,
or, when executed and delivered, will constitute, legal,
valid and binding instruments enforceable against HAFC in
accordance with their respective terms, subject as to the
enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (B) to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (C) with
respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities
law.
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(ix) HAFC has authorized the conveyance of the
Receivables to the Seller; the Seller has authorized the
conveyance of the Receivables to the Trust; and the Seller
has directed the Trust to issue and sell the Series _____
Securities.
(x) Each of HAFC and the Seller is solvent and
will not become insolvent after giving effect to the
transactions contemplated by this Agreement and the other
Series _____ Related Documents. The Seller has no
indebtedness to any Person other than pursuant to this
Agreement and the Series _____ Related Documents. Each of
the Issuer, HAFC and the Seller, after giving effect to the
transactions contemplated by this Agreement and the other
Series _____ Related Documents, will have an adequate
amount of capital to conduct its business in the
foreseeable future.
(xi) Any taxes, fees and other governmental
charges in connection with the execution, delivery and
performance of any Seller Agreement and the Securities
shall have been paid or will be paid by the Seller at or
prior to the Closing Date.
(xii) The Series _____ Offered Certificates have
been duly and validly authorized, and, when validly
executed, authenticated, issued and delivered in accordance
with the Pooling and Servicing Agreement and as provided
herein will conform in all material respects to the
description thereof contained in the Prospectus and will be
validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
(xiii) There are no legal or governmental
proceedings pending, or to the knowledge of HAFC or the
Seller threatened, to which HAFC or the Seller is a party
or of which any property of any of them is the subject,
other than proceedings which are not reasonably expected,
individually or in the aggregate, to have a material
adverse effect on the shareholder's equity or consolidated
financial position of such person and its subsidiaries
taken as a whole, or which would have a material adverse
effect upon the consummation of this Agreement.
(xiv) Xxxxxx Xxxxxxxx LLP is an independent
public accountant with respect to HAFC and Seller as
required by the Act and the Rules and Regulations.
(xv) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of
or with any court or governmental agency or body of the
United States is required for the issue and sale of the
Series _____ Offered Certificates, or the consummation by
HAFC or the Seller of the other transactions contemplated
by this Agreement, the Master Receivables Purchase
Agreement or the Pooling and Servicing Agreement, except
for (A) the registration under the Act of the Series _____
Offered Certificates, (B) such consents, approvals,
authorizations, orders, registrations, qualifications,
licenses
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or permits as have been obtained or as may be required
under state securities or Blue Sky laws in connection with
the purchase of the Series _____ Offered Certificates and
the subsequent distribution of the Series _____ Offered
Certificates by the Underwriters or (C) where the failure
to obtain such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses or permits
would not have a material adverse effect on the business or
consolidated financial condition of HAFC and its
subsidiaries taken as a whole or the Seller or the
transactions contemplated by such agreements.
(xvi) (a) HAFC has the power and authority to
sell the Receivables to the Trust, and (b) following the
conveyance of the Receivables to the Trust pursuant to the
Pooling and Servicing Agreement, the Trust will own the
Receivables free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security
interest (collectively, "LIENS") other than Liens created
by the Pooling and Servicing Agreement.
(xvii) As of the Cutoff Date, each of the
Receivables will meet the eligibility criteria described in
the Prospectus.
(xviii) Neither HAFC nor the Seller will conduct
their operations while any of the Securities are
outstanding in a manner that would require the Seller or
the Trust to be registered as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940
ACT") as in effect on the date hereof.
(xix) Each of the Seller and HAFC possesses all
material licenses, certificates, authorities or permits
issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described on the
Prospectus and neither the Seller nor HAFC has received
notice of any proceedings relating to the revocation or
modification of such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, is likely to
materially and adversely affect the conduct of its
business, operations, financial condition or income.
(xx) At the Closing Date, each of the
representations and warranties of HAFC set forth in the
HAFC Agreements or of the Seller set forth in the Seller
Agreements will be true and correct in all material
respects.
(xxi) Since the respective dates as of which
information is given in the Prospectus, (x) there has not
been any material adverse change in or affecting the
general affairs, business, management, financial condition,
stockholder's equity, results of operations, regulatory
situation or business prospects of HAFC and (y) HAFC has
not entered into any transaction or agreement (whether or
not in the ordinary course of business) material to HAFC
that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders
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of the Series _____ Offered Certificates, otherwise than as
set forth or contemplated in the Prospectus.
B. HFC represents, warrants and agrees with the Underwriters,
that:
(i) HFC is a corporation duly organized and
validly existing and in good standing under the laws of its
jurisdiction of incorporation. HFC has all requisite power
and authority to own its properties and conduct its
business as presently conducted and is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction which requires such
qualification, except where the failure to have such power
and authority or to be so qualified would not have a
material adverse effect on the business or consolidated
financial condition of HFC and its subsidiaries taken as a
whole.
(ii) HFC is not in violation of its certificate
of incorporation or in default in the performance or
observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
to which HFC is a party or by which it may be bound, or to
which any of the property or assets of HFC is subject
except where any such violation or default would not have a
material adverse effect on the transactions contemplated by
this Agreement.
(iii) The execution, delivery and performance by
HFC of the HFC Agreements, and the consummation of the
transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary action or
proceedings and will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of HFC pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which HFC is a party or by which it may be
bound, or to which any of the property or assets of HFC is
subject, nor will such action result in any violation of
the provisions of the certificate of incorporation or
by-laws of HFC or any applicable law, administrative
regulation or administrative or court decree, except where
any such conflict, breach, default, encumbrance or
violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(iv) Each HFC Agreement has been, or, when
executed and delivered, will have been, duly executed and
delivered by HFC; and each HFC Agreement constitutes, or,
when executed and delivered, will constitute, legal, valid
and binding instruments enforceable against HFC in
accordance with their respective terms, subject as to
enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (B) to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (C) with
respect to
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rights of indemnity under this Agreement to limitations of
public policy under applicable securities laws.
(v) HFC will, upon request by any Underwriter,
provide to such Underwriter complete and correct copies of
all reports filed by it with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), during 1997, 1998 and 1999. Except as set forth in
or contemplated in such reports, there has been no material
adverse change in the consolidated financial condition of
HFC and its subsidiaries taken as a whole.
(vi) There are no legal or governmental
proceedings pending, or to the knowledge of HFC threatened,
to which HFC is a party or of which any of its property is
the subject, other than proceedings which are not
reasonably expected, individually or in the aggregate, to
have a material adverse effect on the shareholder's equity
or consolidated financial position of HFC and its
subsidiaries taken as a whole or which would have a
material adverse effect upon the consummation of this
Agreement.
(vii) No consent, approval, authorization,
order, registration, filing, qualification, license or
permit of or with any court or governmental agency or body
of the United States is required for the consummation by
HFC of the transactions contemplated by the HFC Agreements,
except for (A) the registration under the Act of the Series
_____ Offered Certificates, (B) such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits as have been obtained
or as may be required under state securities or Blue Sky
laws in connection with the purchase of the Series _____
Offered Certificates and the subsequent distribution of the
Series _____ Offered Certificates by the Underwriters or
(C) where the failure to obtain such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a
material adverse effect on the business or consolidated
financial condition of HFC and its subsidiaries taken as a
whole or the transactions contemplated by such agreements.
(viii) Xxxxxx Xxxxxxxx LLP is an independent
public accountant with respect to HFC as required by the
Act and the Rules and Regulations.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE
UNDERWRITERS. Each Underwriter severally, and not jointly, represents and
warrants to, and agrees with the other Underwriters, HAFC, the Seller and HFC
that:
(a) Prior to the Effective Date, such Underwriter has not
furnished and will not furnish, in writing or by electronic transmission, any
Derived Information relating to the Series _____ Offered Certificates to any
prospective investor.
(b) Such Underwriter shall provide the Seller no later than
one Business Day after any Collateral Term Sheet is delivered to a
prospective investor, or in the case of any
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Structural Term Sheets and Computational Materials no later than one Business
Day before the date on which the Prospectus is required to be filed pursuant
to Rule 424, all such Derived Information delivered to a prospective investor
by it during the period commencing on the Effective Date and ending on the
date the Prospectus is filed with the Commission. Such Underwriter shall
deliver to the Seller a hard copy and, in a mutually agreed upon format, a
disk or electronic transmission of such Derived Information.
(c) Assuming the accuracy of the Seller-Provided
Information used in the preparation of Derived Information, the Derived
Information, delivered by such Underwriter, as of the date thereof, is
accurate in all material respects, taking into account the assumptions set
forth in such Derived Information, but without making any representations as
to the appropriateness of such assumptions.
(d) Each Underwriter acknowledges that none of HAFC, the
Seller or HFC will be deemed to have breached any representation and warranty
or to have failed to satisfy any other agreement contained herein, to the
extent any such breach or failure on the part of such party resulted solely
from an Underwriter's breach of the representation and warranty set forth in
subsection (a), (b) or (c) above, PROVIDED, HOWEVER, that the rights and
obligations otherwise available to an Underwriter pursuant to Section 10 and
11 hereof are not limited solely as a result of an Underwriter's breach of
the representation and warranty set forth in subsection (a) above.
(e) For purposes of this Agreement, "DERIVED INFORMATION"
means the type of information defined as Collateral Term Sheets, Structural
Term Sheets or Computational Materials (as such terms are interpreted in the
No-Action Letters). The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM
SHEET" shall have the respective meanings assigned to them in the February
13, 1995 letter (the "PSA LETTER") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on
behalf of the Public Securities Association (which letter, and the Commission
staff's response thereto, were publicly available February 17, 1995), and
with respect to "COLLATERAL TERM SHEET" includes any subsequent Collateral
Term Sheet that reflects a substantive change in the information presented.
The term "COMPUTATIONAL MATERIALS" has the meaning assigned to it in the May
17, 1994 letter (the "Xxxxxx Letter" and together with the PSA Letter, the
"No-Action Letters") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc.
(which letter, and the Commission staff's response thereto, were publicly
available May 20, 1994). "SELLER-PROVIDED INFORMATION" means the information
contained on any computer tape furnished to the Underwriters by the Seller
concerning the assets comprising the Issuer.
(f) Any "electronic roadshow" presentation used by such
Underwriter (an "ER PRESENTATION") shall be made available only to
institutional investors, investment advisors and other persons of a type the
Underwriter would customarily invite to a road show who have been provided
with a password by such Underwriter. If the ER Presentation is transmitted
during the "waiting period" between filing and effectiveness of the
Registration Statement, a preliminary prospectus pursuant to Section 10(b) of
the Act will be made available to the prospective investor prior to the
release of the password to such investor. In such event, the ER Presentation
will be preceded and conclude with the following statement:
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A preliminary prospectus has been furnished to each person
authorized to receive this transmission. You should refer
to such prospectus, and to the registration statement of
which it is a part, for more complete information about the
offering. By electing to view this transmission, you
represent, warrant and agree that you will not videotape,
record or otherwise attempt to reproduce or retransmit the
contents of this transmission.
In addition an ER Presentation transmitted during the
waiting period shall also include a legend complying in substance with Rule
134(b) of the Act. Any ER Presentation transmitted prior to effectiveness of
the Registration Statement will be coded so that viewers will not be able to
copy, print or down-load information contained in the ER Presentation and
will be able to view the ER Presentation only during the 24-hour period
beginning with initial access to the ER Presentation.
If the Registration Statement is effective at the time the
ER Presentation is transmitted, a prospectus pursuant to Section 10(a) of the
Act will be made available to each prospective investor that is provided
access to the ER Presentation, or if a prospectus pursuant to Section 10(a)
of the Act is not yet available, then a preliminary prospectus pursuant to
Section 10(b) of the Act will be made available to each prospective investor
that is provided access to the ER Presentation.
The content of the ER Presentation shall be approved by
HAFC, the Seller and HFC prior to transmission and shall not be inconsistent
with the prospectus made available to such investors prior to the ER
Presentation transmission.
Section 4. PURCHASE AND SALE. The Underwriters' commitment
to purchase the Series _____ Offered Certificates pursuant to this Agreement
shall be deemed to have been made on the basis of the representations and
warranties of the Household Entities herein contained and shall be subject to
the terms and conditions herein set forth. The Seller agrees to instruct the
Trust to issue the Series _____ Offered Certificates to the Underwriters, and
the Underwriters agree to purchase the Series _____ Offered Certificates on
the date of issuance thereof. The purchase prices for the Series _____
Offered Certificates shall be as set forth on Schedule 1 hereto.
Section 5. DELIVERY AND PAYMENT. Payment of the purchase
price for, and delivery of, any Series _____ Offered Certificates to be
purchased by the Underwriters shall be made at the office of Xxxxx Xxxxxxxxxx
LLP, 1301 Avenue of the Americas, New York, New York, or at such other place
as shall be agreed upon by the Representative and the Household Entities, at
10:00 a.m. New York City time on __________ (the "CLOSING DATE"), or at such
other time or date as shall be agreed upon in writing by the Representative
and the Household Entities. Payment shall be made by wire transfer of same
day funds payable to the account designated by HAFC. Each of the Series _____
Offered Certificates so to be delivered shall be represented by one or more
global Series _____ Offered Certificates registered in the name of Cede &
Co., as nominee for The Depository Trust Company.
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The Household Entities agree to have the Series _____
Offered Certificates available for inspection, checking and packaging by the
Representative in New York, New York, not later than 12:00 P.M. New York City
time on the business day prior to the Closing Date.
Section 6. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer
the Series _____ Offered Certificates for sale to the public as set forth in
the Prospectus.
(b) Each Underwriter represents and agrees that (i) it has
not offered or sold and, prior to the expiry of six months from the Closing
Date, will not offer or sell any Series _____ Offered Certificates to persons
in the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purpose of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Series _____ Offered Certificates in,
from or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on, and will only issue or pass on, in the United Kingdom any
document received by it in connection with the issue of the Series _____
Offered Certificates, to a person who is of a kind described in the Article
11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1995 or to a person to whom such document may otherwise
lawfully be issued, distributed or passed on.
Section 7. COVENANTS OF THE HOUSEHOLD ENTITIES. The
Household Entities, covenant with the Underwriters as follows:
A. The Seller will use its best efforts to cause the
Registration Statement and any amendment thereto, if not effective at the
Execution Time, to become effective. 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, pursuant to Rule 424(b) within the time period prescribed
and will promptly evidence satisfactory to the Underwriters of such timely
filing. The Seller will promptly advise the Underwriters (i) when the
Registration Statement shall have become effective, (ii) when any amendment
thereof shall have become effective, (iii) of any request by the Commission
for any amendment or supplement of the Registration Statement or the
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose, and (v) of the receipt by the Seller of any modification with
respect to the suspension of the qualification of the Series _____ Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Seller will not file any amendment of
the Registration Statement or supplement to the Prospectus to which the
Underwriters reasonably object. The Seller will use its best efforts to
prevent the issuance of any such stop order and if issued, to obtain as soon
as possible the withdrawal thereof.
12
B. If, at any time when a Prospectus relating to the Series
_____ Offered Certificates is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to supplement such Prospectus to comply with the Act or the rules
thereunder, the Seller shall be required to notify the Underwriters and upon
the Underwriters' request to prepare and furnish without charge to the
Underwriters as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which shall correct such statement or omission or effect such compliance.
C. As soon as practicable, but in any event within 120 days
of the close of the period covered thereby, the Seller will make generally
available to Certificateholders and to the Underwriters an earnings statement
or statements of the Trust which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
D. The Seller will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriters or dealer may be required by the Act, as many
copies of the Prospectus and any supplement thereto as the Underwriters may
reasonably request.
E. The Household Entities, jointly and severally, agree to
pay all expenses incidental to the performance of their obligations under
this Agreement, including without limitation (i) expenses of preparing,
printing and reproducing the Registration Statement, the Prospectus, and any
document incorporated by reference in the Prospectus (including exhibits
thereto), (ii) any fees charged by any rating agency for the rating of the
Series _____ Offered Certificates, (iii) any expenses (including reasonable
fees and disbursements of counsel not to exceed $10,000) incurred by the
Underwriters in connection with qualification of the Series _____ Offered
Certificates for sale under the laws of such jurisdictions as the
Underwriters designate, (iv) the fees and expenses of (A) Xxxxx Xxxxxxxxxx
LLP as special counsel for the Household Entities and (B) Xxxxxx Xxxxxxxx
LLP, (v) the fees and expenses of the Trustee and any agent of the Trustee
and the fees and disbursements of counsel for the Trustee in connection with
the Pooling and Servicing Agreement and the Series _____ Offered
Certificates, and (vi) the cost of delivering the Series_____ Offered
Certificates to the offices of the Underwriters, insured to the satisfaction
of the Underwriters (it being understood that, except as provided in this
paragraph (E) and in Sections 9 and 10 hereof, each Underwriter will pay its
own expenses, including the expense of preparing, printing and reproducing
this Agreement, the fees and expenses of counsel for the Underwriters, any
transfer taxes on resale of any of the Series _____ Offered Certificates by
it and advertising expenses connected with any offers that the Underwriters
may make).
F. The Seller will take all reasonable actions requested by
the Underwriters to arrange for the qualification of the Series _____ Offered
Certificates for sale under the laws of such jurisdictions within the United
States or as necessary to qualify for the Euroclear System or
13
Cedel Bank, societe anonyme and as the Underwriters may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Series _____ Offered Certificates and will arrange for
the determination of the legality of the Series _____ Offered Certificates
for purchase by institutional investors.
G. For so long as the Series _____ Offered Certificates are
outstanding, the Household Entities will furnish to the Underwriters (i) as
soon as practicable after the end of each fiscal year of the Trust, all
documents required to be distributed to Certificateholders under the Pooling
and Servicing Agreement and (ii) as soon as practicable after filing, any
other information concerning the Household Entities filed with any government
or regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request.
H. To apply the net proceeds from the sale of the Series
_____ Offered Certificates in the manner set forth in the Prospectus.
I. If, between the date hereof or, if earlier, the dates as
of which information is given in the Prospectus and the Closing Date, to the
knowledge of the Seller, there shall have been any material change, or any
development involving a prospective material change in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of any of the Household Entities, the Seller will give
prompt written notice thereof to the Underwriters.
J. The Seller, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the Exchange Act within the time periods required by the Act and the
Rules and Regulations thereunder.
K. To the extent, if any, that the ratings provided with
respect to the Series _____ Offered Certificates by the Rating Agency that
initially rate the Series _____ Offered Certificates are conditional upon the
furnishing of documents or the taking of any other actions by the Seller or
HAFC, the Seller shall use its best efforts to furnish or cause to be
furnished such documents and take any such other actions.
L. Neither HAFC nor the Seller will, with the prior written
consent of the Representative, contract to sell any automobile
receivable-backed certificates or notes or other similar securities either
directly or indirectly for a period of five (5) business days after the later
of the termination of the underwriting syndicate or the Closing Date.
M. So long as any of the Series _____ Offered Certificates
are outstanding, the Household Entities shall furnish to the Underwriters as
soon as such statements are furnished to the Trustee: (i) the annual
statement as to compliance of the Master Servicer delivered to the Trustee
pursuant to Section 4.10 of the Pooling and Servicing Agreement, and (ii) the
annual statement of a firm of independent public accountants furnished to the
Trustee pursuant to Section 4.11 of the Pooling and Servicing Agreement with
respect to the Master Servicer.
14
Section 8. CONDITIONS OF THE OBLIGATIONS OF THE
UNDERWRITERS. The obligations of the Underwriters to purchase the Series
_____ Offered Certificates on the Closing Date pursuant to this Agreement are
subject to (i) the material accuracy of the representations and warranties on
the part of the Household Entities herein contained as of the Execution Time,
(ii) the material accuracy of the statements of officers of the Household
Entities made pursuant hereto, (iii) the performance by the Household
Entities of all of their respective obligations hereunder, and the
performance by the Household Entities of all of their respective obligations
under the Seller Agreements, HAFC Agreements and the HFC Agreements and (iv)
the following conditions as of the Closing Date:
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 12:00 Noon New York City time on the business day following the day on
which the public offering price was determined; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
B. Each of the Household Entities shall have delivered a
certificate, dated the Closing Date signed by its President or any Vice
President and its principal financial or principal accounting officer or its
Treasurer or any Assistant Treasurer or its Secretary or any Assistant
Secretary to the effect that the signers of such certificate, on behalf of
the named Household Entity, have carefully examined Series _____ Related
Documents, the Prospectus (and any supplements thereto) and the Registration
Statement, stating that:
(i) the representations and warranties of such
Household Entity in this Agreement are true and correct in
all material respects at and as of the date of such
certificate as if made on and as of such date (except to
the extent they expressly relate to an earlier date);
(ii) such Household Entity has complied, in all
material respects, with all the agreements and satisfied,
in all material respects, all the conditions on its part to
be performed or satisfied at or prior to the date of such
certificate;
(iii) nothing has come to the attention of such
Household Entity that would lead it to believe that the
Registration Statement contains any untrue statement of a
material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and
(iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted. or, to
the knowledge of the xxxxxx, threatened.
15
C. Xxxx Xxxxxx, Vice President - Corporate Law and
Assistant Secretary of Household International, Inc., shall have delivered a
favorable opinion with respect to clauses (i) through (x) of this paragraph
(C), and Xxxxx Xxxxxxxxxx LLP, special counsel to the Household Entities,
shall have delivered a favorable opinion with respect to clauses (xi) through
(xiii) of this paragraph (C) each opinion shall be dated the Closing Date and
shall be satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, to the effect that:
(i) each of HFC, HAFC and the Seller is duly
incorporated and validly existing as a corporation in good
standing under the laws of its jurisdiction of
incorporation with corporate power and authority to own its
properties and to conduct its business, except where
failure to have such power and authority do not have a
material adverse effect, as applicable, on the business or
consolidated financial condition of HFC and its
subsidiaries, taken as a whole, or HFC, HAFC, or the
Seller, to enter into and perform its obligation under the
HFC Agreements, the HAFC Agreements or the Seller
Agreements, as applicable, and to consummate the
transactions contemplated hereby and thereby;
(ii) each of the HFC Agreements, the HAFC
Agreements or the Seller Agreements has been duly
authorized, executed and delivered by HFC, HAFC or the
Seller, as applicable, and constitute the legal, valid and
binding agreement of HFC, HAFC or the Seller, as
applicable, enforceable in accordance with its terms
subject, as to enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally and the rights,
(B) to general principles of equity (regardless of whether
enforcement is sought in a proceedings in equity or at law)
and (C) with respect to rights of indemnity to limitations
of public policy under applicable securities laws;
(iii) the issuance and sale of the Series _____
Offered Certificates have been duly authorized and, when
executed and authenticated in accordance with the terms of
the Pooling and Servicing Agreement and delivered to and
paid for by the Underwriters pursuant to this Agreement,
will be validly issued and outstanding, entitled to the
benefits of the Pooling and Servicing Agreement,
enforceable in accordance with their terms subject, as to
enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally and the rights
and remedies of creditors of thrifts, savings institutions
or national banking associations and (B) to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(iv) neither the execution nor the delivery of
the Underwriting Agreement, the Master Receivables Purchase
Agreement or the Pooling and Servicing Agreement nor the
issuance or delivery of the Series _____ Offered
Certificates, nor the consummation of any of the
transactions contemplated herein or therein, nor the
fulfillment of the terms of the Series _____ Offered
16
Certificates, the Underwriting Agreement, the Master
Receivables Purchase Agreement or the Pooling and Servicing
Agreement will conflict with or violate any term or
provision of the charter or by-laws of the Household
Entities, or result in a breach or violation of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of
the Household Entities pursuant to, any material statute
currently applicable to any of them or the Trust or any
order or regulation known to such counsel to be currently
applicable to any of them or the Trust of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Household Entities or the
Trust, as the case may be, or the terms of any indenture or
other agreement or instrument known to such counsel to
which the Household Entities or the Trust is a party or by
which any of them or any of their properties are bound,
except where any such conflict, breach, violation, default
or encumbrance would not have a material adverse effect on
the transactions contemplated by this Agreement.
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body
or any arbitrator with respect to the Underwriting
Agreement, the Trust, the Series _____ Offered
Certificates, the Master Receivables Purchase Agreement or
the Pooling and Servicing Agreement or any of the
transactions contemplated herein or therein or with respect
to the Household Entities which, in the case of any such
action, suit or proceeding with respect to any of them,
would have a material adverse effect on the
Certificateholders or the Trust or upon the ability of any
of the Household Entities to perform their obligations
under any of such agreements, and there is no material
contract, franchise or document relating to the Trust or
property conveyed to the Trust which is not disclosed in
the Registration Statement or Prospectus; and the
statements included in the Registration Statement and
Prospectus describing statutes (other than those relating
to tax and ERISA matters), legal proceedings, contracts and
other documents fairly summarize the matters therein
described;
(vi) the Registration Statement has become
effective under the Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424
has been made in the manner and within the time period
required by Rule 424; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; the
Registration Statement and the Prospectus (and any
supplements thereto) (other than financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and
the rules thereunder;
(vii) such counsel has no reason to believe that
at the Effective Date the Registration Statement contained
any untrue statement of a material fact
17
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date, includes
any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (other than financial and statistical
information contained therein as to which such counsel need
express no opinion);
(viii) to the best knowledge of such counsel, no
consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any
court or governmental agency or regulatory body under the
federal law of the United States or the laws of the State
of New York is required in connection with the consummation
of the transactions contemplated in the Underwriting
Agreement, the Master Receivables Purchase Agreement or the
Pooling and Servicing Agreement, except (A) such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits as have been made or
obtained or as may be required under the State securities
or blue sky laws of any jurisdiction in connection. with
the purchase of the Series _____ Offered Certificates by
the Underwriters and the subsequent distribution of the
Series _____ Offered Certificates by the Underwriters or
(B) where the failure to have such consents, approvals,
authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a
material adverse effect on the Trust's interests in the
Receivables or the transactions contemplated by such
agreements;
(ix) the Series _____ Offered Certificates, the
Underwriting Agreement, the Master Receivables Purchase
Agreement and the Pooling and Servicing Agreement conform
in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus;
(x) the Issuer is not required to be registered
under the Investment Company Act of 1940;
(xi) the statements in the Prospectus Supplement
under the captions "Summary of Terms -- Tax Status,"
"Summary of Terms -- ERISA Considerations," "ERISA
Considerations" and "Material Federal Income Tax
Consequences," "Certain Legal Aspects of the Receivables"
to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by
counsel and represent a fair and accurate summary of the
matters addressed therein, under existing law and the
assumptions stated therein;
(xii) the statements in the Base Prospectus
under the captions "Summary of Terms -- Tax Status,"
"Summary of Terms -- ERISA Considerations," "ERISA
Considerations" and "Material Federal Income Tax
Consequences," "Certain Legal Aspects of the Receivables"
to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been
18
reviewed by counsel and represent a fair and accurate
summary of the matters addressed therein, under existing
law and the assumptions stated therein;
(xiii) no other filings or other actions, with
respect to the Trustee's interest in the Receivables, are
necessary to perfect the interest of the Trustee in the
Receivables, and proceeds thereof, against third parties,
except that appropriate continuation statements must be
filed in accordance with the applicable state's
requirements, which is presently at least every five years;
and
(xiv) the conditions to the use of a
registration statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement and
the Prospectus. There are no contracts or documents which
are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and Regulations
thereunder which have not been filed.
In rendering such opinion, counsel may rely (A) as to
matters involving the application of the law of any jurisdiction other than,
in the case of Xxxx X. Xxxxxx, the laws of the State of Illinois, and in the
case of Xxxxx Xxxxxxxxxx LLP, the laws of the State of New York, the
corporate law of the State of Delaware and the United States Federal laws, to
the extent deemed proper and stated in such opinion, upon the opinion of
other counsel of good standing believed by such counsel to be reliable and
acceptable to you and your counsel, and (B) as to matters of fact, to the
extent deemed proper and as stated therein, on the certificates of
responsible officers of the Trust, Household Entities and public officials.
References to the Prospectus in this paragraph C include any supplements
thereto.
D. Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters,
shall have delivered a favorable opinion dated the Closing Date with respect
to the validity of the Series _____ Offered Certificates, the Underwriting
Agreement, the Series _____ Supplement, the Registration Statement, the
Prospectus and such other related matters as the Underwriters may reasonably
require and the Household Entities shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
on such matters. In giving their opinion, Xxxxx Xxxxxxxxxx LLP may rely (i)
as to matters of California, Illinois, Nevada and Delaware law (other than
Delaware corporation law) upon the opinions of counsel delivered pursuant to
subsection (C) above, (ii) as to matters involving the application of laws of
any jurisdiction other than the State of New York, the United States Federal
laws or the corporation law of the State of Delaware, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable, and (iii) as to matters of fact, to
the extent deemed proper and as stated therein on certificates of responsible
officers of the Trust, Household Entities and public officials.
E. Counsel to the Trustee shall have delivered a favorable
opinion, dated the Closing Date, and satisfactory in form and substance to
the Underwriters and counsel for the Underwriters, the Household Entities and
their counsel, to the effect that:
19
(i) The Trustee has been duly incorporated
and is validly existing as a banking corporation in good
standing under the laws of the United States of America.
(ii) The Trustee has full corporate trust power
and authority to enter into and perform its obligations
under the Pooling and Servicing Agreement, including, but
not limited to, its obligation to serve in the capacity of
the Trustee and to execute, issue, countersign and deliver
the Series _____ Offered Certificates.
(iii) The Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Trustee
and constitutes a legal, valid and binding obligation of
the Trustee enforceable against the Trustee, in accordance
with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and (B) be
limited by general principles of equity (whether considered
in a proceeding at law or in equity).
(iv) The Series _____ Offered Certificates
have been duly authorized, executed and authenticated by
the Trustee on the date hereof on behalf of the Trust in
accordance with the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of
the Pooling and Servicing Agreement and the Series _____
Offered Certificates by the Trustee will not conflict with
or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of
the property or assets of the Trustee pursuant to the terms
of the articles of association or the by-laws of the
Trustee or any statute, rule, regulation or order of any
governmental agency or body, or any court having
jurisdiction over the Trustee or its property or assets or
any agreement or instrument known to such counsel, to which
the Trustee is a party or by which the Trustee or any of
its respective property or assets is bound.
(vi) No authorization, approval, consent or
order of, or filing with, any state or federal court or
governmental agency or authority is necessary in connection
with the execution, delivery and performance by the Trustee
of the Pooling and Servicing Agreement and the Series _____
Offered Certificates.
F. [Name of Trustee] shall have furnished to the
Underwriters and the Household Entities a certificate of ____
[Name of Trustee], signed by one or more duly authorized officers of _____
[Name of Trustee], dated the Closing Date, as to the due authorization,
execution and delivery of the Pooling and Servicing Agreement by _____
[Name of Trustee] and the acceptance by the Trustee of the trusts created
thereby and the due execution and delivery of the Series _____ Offered
Certificates by the Trustee under the Pooling and Servicing Agreement and
such other matters as the Underwriters shall reasonably request.
G. The Class A Certificates shall have been rated "___" or
its equivalent by at least two nationally recognized Ratings Agencies.
20
H. The Underwriters shall have received copies of letters
dated as of the Closing Date, from the Ratings Agencies stating the current
ratings of the Series _____ Offered Certificates as set forth in Section I
above.
I. The Underwriters shall have received from Xxxxx
Xxxxxxxxxx LLP, counsel to the Household Entities, a favorable opinion, dated
the Closing Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, as to true sale matters relating to the
transaction, and the Underwriters shall be addressees of any opinions of
counsel supplied to the rating organizations relating to the Series _____
Offered Certificates.
J. All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto, shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the Underwriters
shall have received such other information, opinions, Offered Certificates
and documents as they may reasonably request in writing.
K. The Prospectus shall have been filed (if required) with
the Commission in accordance with the rules and regulations under the Act and
Section 2 hereof, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
L. At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Underwriters a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for
the Underwriters.
If any condition specified in this Section 8 shall not have
been fulfilled when and as required to be fulfilled, (i) this Agreement may
be terminated by the Representative by notice to both of the Household
Entities at any time at or prior to the Closing Date, and such termination
shall be without liability of any party to any other party except as provided
in Section 9 and (ii) the provisions of Section 9, the indemnity set forth in
Section 10, the contribution provisions set forth in Section 10 and the
provisions of Sections 13 and 16 shall remain in effect.
Section 9. REIMBURSEMENT OF EXPENSES. If the sale of the
Series _____ Offered Certificates provided for herein is not consummated
because any condition to the Underwriter's obligations set forth in Section 8
hereof is not satisfied, because of any termination pursuant to Section 12
hereof or because of any refusal, inability or failure on the part of the
Trustee or the Household Entities to perform any agreement herein or comply
with any provision hereof other than by reason of a default by the
Underwriters, the Household Entities, jointly and severally, will reimburse
the Underwriters upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred
by it in connection with the proposed purchase and Sale of the Series _____
Offered Certificates.
Section 10. INDEMNIFICATION.
21
A. The Household Entities jointly and severally agree to
indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of the Act or the Exchange Act,
from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
the Series _____ Offered Certificates), to which the Underwriters or any such
controlling person may become subject, under the Act or the Exchange Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) the omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, unless (a) such untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information furnished to the Seller, or information, if any,
electronically transmitted to the Seller by the Underwriters expressly for
use in the Registration Statement (or any amendment thereof) or (b) such
loss, liability, claim, damage or expense is incurred by an Underwriter
solely as a result of the dissemination by it of Derived Information in
violation of Section 3(a) hereof; and shall reimburse the Underwriters and
each such controlling person promptly upon demand for any documented legal or
documented other expenses reasonably incurred by the Underwriters or such
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the foregoing indemnity with
respect to any untrue statement contained in or omission from the Prospectus
shall not inure to the benefit of the Underwriters if a Household Entity
shall sustain the burden of proving that the person asserting against the
Underwriters the loss, liability, claim, damage or expense purchased any of
the Series _____ Offered Certificates which are the subject thereof and was
not sent or given a copy of the appropriate Prospectus (or the appropriate
Prospectus as amended or supplemented) (the term Prospectus as used in this
clause shall not include documents incorporated by reference thereto), if
required by law, at or prior to the written confirmation of the sale of such
Series _____ Offered Certificates (unless such Prospectus is amended or
supplemented after the Prospectus has been delivered pursuant to Rule 424(b))
to such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the appropriate Prospectus (or the
appropriate Prospectus as amended or supplemented).
The foregoing indemnity agreement is in addition to any
liability which a Household Entity may otherwise have to the Underwriters or
any controlling person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not
jointly indemnify and hold harmless the Household Entities, the directors and
the officers of the Household Entities who signed the Registration Statement,
and each person, if any, who controls any Household Entity within the meaning
of the Act or the Exchange Act against any and all loss, claim, damage or
liability, or any action in respect thereof, to which a Household Entity or
any such director, officer or controlling person thereof may become subject,
under the Act or the Exchange Act or
22
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Underwriter Information (as
defined below), or (ii) 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 shall reimburse the applicable Household Entity,
promptly on demand, and any such director, officer or controlling person for
any documented legal or other documented expenses reasonably incurred by such
Household Entity, or any director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
Underwriter Information means the information set forth under the caption
"Underwriting" in the Prospectus Supplement and the Base Prospectus.
The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to any Household Entity
or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under
this Section 10 of notice of any claim or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 10, promptly notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify an indemnifying party
shall not relieve it from any liability which it may have under this Section
10 except to the extent it has been materially prejudiced by such failure;
and PROVIDED, FURTHER, that the failure to notify any indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 10.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party, unless such indemnified party reasonably objects to
such assumption on the ground that there may be legal defenses available to
it which are different from or in addition to those available to such
indemnifying party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, except to the extent provided in the next following paragraph, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any fees and expenses of counsel subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
Any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless: (i) the employment thereof has been
specifically authorized by the indemnifying party in writing; (ii) such
indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the
23
reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party, it being understood, however, the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties,
which firm shall be designated in writing by the Representative, if the
indemnified parties under this Section 9 consist of the Underwriters or any
of their controlling persons, or by the Household Entities, if the
indemnified parties under this Section 9 consist of any of the Household
Entities or any of the Household Entities' directors, officers or controlling
persons, but in either case reasonably satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity
agreements contained in Sections 10A and B, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect
of which such indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
Notwithstanding the foregoing, if (x) the indemnified party
has made a proper request to the indemnifying party for the payment of the
indemnified party's legal fees and expenses, as permitted hereby, and (y)
such request for payment has not been honored within thirty days, then, for
so long as such request thereafter remains unhonored, the indemnifying party
shall be liable for any settlement entered into by the indemnified party
whether or not the indemnifying party consents thereto.
D. If the indemnification provided for in this Section 10
shall for any reason be unavailable to hold harmless an indemnified party
under Section 10A or B in respect of any loss, claim, damage or liability, or
any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Household Entities on the one hand and the Underwriters on the other
from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only
24
the relative benefits referred to in clause (i) above but also the relative
fault of the Household Entities on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations.
The relative benefits of the Underwriters and the Household
Entities shall be deemed to be in such proportion so that the Underwriters
are responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus
Supplement bears to the public offering price appearing on the cover page of
the Prospectus Supplement.
The relative fault of the Underwriters and the Household
Entities shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Household Entities or
by one of the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission and other equitable considerations.
The Household Entities and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 10D
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10D shall be deemed to include, for
purposes of this Section 10D, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim.
Each person, if any, who controls each Underwriter within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of a Household
Entity, each officer of a Household Entity who signed the Registration
Statement, and each person, if any, who controls a Household Entity within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as the applicable Household Entity.
Except in the case of any loss, claim, damage, liability or
expense resulting solely from a breach of the Underwriter's representation
and warranty set forth in Section 3(a), (b) or (c) hereof, in no case shall
any Underwriter be responsible for any amount in excess of the underwriting
discount applicable to the Series _____ Offered Certificates purchased by
such Underwriter hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
E. The Underwriters severally confirm that the information
(i) set forth in the Prospectus Supplement relating to market making, (ii)
set forth under the caption "Underwriting" in the Prospectus Supplement, and
(iii) provided in response to Section 3(b) hereof, assuming the accuracy of
the Seller-Provided Information used in the preparation of Derived
Information, is
25
correct and constitutes the only information furnished in writing to a
Household Entity by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and/or the Prospectus.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If
one or more of the Underwriters participating in the public offering of the
Series _____ Offered Certificates shall fail at the Closing Date to purchase
the Series _____ Offered Certificates which it is obligated to purchase
hereunder (the "DEFAULTED SECURITIES"), then the non-defaulting Underwriter
shall have the right, within 24 hours thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth. If,
however, the Underwriter have not completed such arrangements within such
24-hour period, then:
(i) if the aggregate principal amount of
Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Series _____ Offered Certificates
to be purchased pursuant to this Agreement, the
non-defaulting Underwriter shall be obligated to purchase
the full amount thereof, or
(ii) if the aggregate principal amount of
Defaulted Securities exceeds 10% of the aggregate principal
amount of the Series _____ Offered Certificates to be
purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve the
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by an Underwriter as set forth in
this Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order that any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements may be effected.
Section 12. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given
to the Seller and HAFC prior to delivery of and payment for the Series _____
Offered Certificates if prior to such time (i) trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers National Market System shall have been suspended or
limited, or minimum prices shall have been established on such exchange or
market system; a banking moratorium shall have been declared by either
Federal, New York State authorities or the State of California; or (ii) there
shall have occurred any outbreak or material escalation of hostilities
involving the United States of America where armed conflict or the
declaration of war appears imminent, if, the effect of such event makes it,
in the reasonable judgment of the Representative, impractical or inadvisable
to proceed with the completion of the sale and payment for the Series _____
Offered Certificates. Upon such notice being given, the parties to this
Agreement shall (except for any liability arising before or in relation to
such termination) be released and discharged from their respective
obligations under this Agreement.
26
Section 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement or contained in Offered Certificates of officers of the
Household Entities submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf
of the Representative or controlling person of the Representative, or by or
on behalf of the Household Entities or any officers, directors or controlling
persons and shall survive delivery of any Offered Certificates to the
Representative or any controlling person.
Section 14. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication to the
Underwriters at [Name of Lead Underwriter], [address], attention: __________,
Fax: __________; if sent to any Household Entity to 0000 Xxxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, attention of General Counsel, Fax: (847)
000-0000.
Section 15. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Representative and the Household Entities,
and their respective successors or assigns. Nothing expressed or mentioned in
this Agreement is intended nor shall it be construed to give any person, firm
or corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to
in Section 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or with respect to this Agreement or
any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives (to the
extent of their rights as specified herein and therein) and except as
provided above for the benefit of no other person, firm or corporation. No
purchaser of Series _____ Offered Certificates from the Representative shall
be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together
they shall constitute but one instrument.
Section 18. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect
the meaning or interpretation of, this Agreement.
27
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Seller, HAFC and HFC in
accordance with its terms.
Very truly yours,
HOUSEHOLD FINANCE CORPORATION
By: ______________________________
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION
By: _______________________________
Name:
Title:
HOUSEHOLD AUTOMOTIVE FINANCE
CORPORATION
By: ________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[Name of Lead Underwriter]
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: ___________________________________________
Name:
Title: Authorized Signatory
28
[Underwriting Agreement]
29
Schedule 1
Purchase Price (excluding accrued interest)
CLASS A
[List Names of Underwriters] _____%
____________________ _____%
____________________ _____%
____________________ _____%
Notional Principal Amount
CLASS A
[List Names of Underwriters] $__________
____________________ __________
____________________ __________
____________________ __________
Total $__________
Proceeds (excluding accrued interest)
CLASS A-1
[List Names of Underwriters] $__________
____________________ __________
____________________ __________
____________________ __________
Total $__________
30
