Exhibit 1.2
REGIONS AUTO RECEIVABLES TRUST 2002-[ ]
Asset Backed Certificates
REGIONS ACCEPTANCE LLC
(DEPOSITOR)
REGIONS BANK
(SELLER AND MASTER SERVICER )
FORM OF UNDERWRITING AGREEMENT
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[REPRESENTATIVE]
as Representative of the several Underwriters
listed on Schedule I hereto
[ADDRESS]
Dear Sirs:
Regions Acceptance LLC, A Delaware limited liability company (the
"Depositor"), proposes to form a trust, with [__________], acting not in its
individual capacity but solely as Trustee of Regions Auto Receivables Trust
2002-[ ] (the "Issuer"), pursuant to a Pooling and Servicing Agreement (the
"Pooling Agreement") to be dated as of _________, ___ between the Depositor,
Regions Bank, an Alabama state banking corporation (the "Bank"), as seller and
Master Servicer (in such capacities, the "Seller" and the "Master Servicer ",
respectively), and ___________, as trustee and collateral agent (the
"Trustee"). The Issuer will issue (i) $_________ principal amount of its Class
A ___% Asset Backed Certificates (the "Class A Certificates"), and (ii)
$_________ principal amount of its Class B ___% Asset Backed Certificates (the
"Class B Certificates", and together with the Class A Certificates, the
"Certificates"). The assets of the Issuer will include, among other things, a
pool of motor vehicle installment loans made by the Bank and secured by new
and used cars and light duty trucks (the "Receivables"), certain monies due or
received thereunder on or after _________, ___ (the "Cutoff Date"), security
interests in the vehicles financed thereby, certain accounts, and the proceeds
thereof, and the proceeds from claims on certain insurance policies. Pursuant
to the Pooling Agreement, the Receivables will be sold to the Trustee for the
benefit of the Certificateholders. The Master Servicer will service the
Receivables pursuant to the Pooling Agreement. Capitalized terms used and not
otherwise defined herein shall have the meanings given them in the Pooling
Agreement.
This is to confirm the agreement concerning the purchase of the Certificates
from the Bank by the several Underwriters named in Schedule I hereto (the
"Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND THE
BANK. The Depositor and the Bank (each a "Representing Party" and collectively
the
"Representing Parties"), jointly and severally, represent and warrant to and
agree with the several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-100339) has been
filed by the Depositor with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933,
as amended (the "Securities Act"). Such registration statement may have
been amended or supplemented from time to time prior to the date hereof.
Any such amendment or supplement was filed with the Commission in
accordance with the Securities Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations") and any such
amendment has become effective under the Securities Act. The Depositor
proposes to file with the Commission pursuant to Rule 424(b) of the Rules
and Regulations a prospectus supplement (the "Prospectus Supplement") to
the prospectus dated ___________, ___, relating to the Certificates and
the method of distribution thereof. Copies of such registration
statement, any amendment or supplement thereto, such 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.
(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 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 and did not include any untrue statement of a
material fact and, in the case of the Registration Statement and any
post-effective amendment thereto, did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and, in the case of the Prospectus, did 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; on the Closing Date (as hereinafter defined), the
Registration Statement and the Prospectus, as amended or supplemented as
of 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 and the rules and regulations of
the Commission thereunder and neither the Prospectus nor any amendment or
supplement thereto will include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The representation and warranty in the
preceding sentence does not apply to 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).
(c) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware with the limited liability
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company power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus,
and now has, the power, authority and legal right to acquire, own and
sell the Receivables.
(d) The Bank has been duly organized and is validly existing as an
Alabama state banking corporation 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.
(e) The representations of the Depositor in Section 7.01 of the
Pooling Agreement will be true and correct as of the Closing Date.
(f) The representations of the Master Servicer in Section 8.01 of
the Pooling Agreement will be true and correct as of the Closing Date.
(g) 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.
(h) This Agreement has been duly executed and delivered by each
Representing Party.
(i) When authenticated by the Trustee in accordance with the Pooling
Agreement and delivered and paid for pursuant to this Agreement, the
Certificates will be duly issued and entitled to the benefits and
security afforded by the Pooling Agreement.
(j) The execution, delivery and performance of this Agreement and
the consummation by each Representing Party 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 Certificates
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and applicable
state securities laws in connection with the purchase and distribution of
the Certificates 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.
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(k) 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
Certificates, (ii) seeking to prevent the issuance of any of the
Certificates 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 of its obligations under this Agreement, the validity of the
Certificates or the validity or enforceability of this Agreement, or (iv)
that may adversely affect the federal or state income, excise, franchise
or similar tax attributes of the Certificates.
(l) 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 or (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 of its obligations under, or
the validity or enforceability of, the Certificates, the Basic Documents
or this Agreement or (B) the condition (financial or otherwise), results
of operations, business or prospects of such Representing Party.
(m) None of the Issuer, the Depositor or the Bank is 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.
(n) Neither the Bank nor the Depositor or anyone acting on their
behalf has taken any action that would require qualification of the
Pooling Agreement under the Trust Indenture 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 the Issuer 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 Certificates set forth opposite
the name of such Underwriter in Schedule 1 hereto at a purchase price equal to
(i) with respect to the Class A Certificates, ____% of the principal amount
thereof, and (ii) with respect to the Class B Certificates, ____% of the
principal amount thereof.
The Depositor shall not be obligated to deliver any of the Certificates
except upon payment in full for all the Certificates to be purchased as
provided herein.
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3. DELIVERY OF AND PAYMENT FOR THE CERTIFICATES. Delivery of and payment
for the Certificates shall be made at the office of __________, or at such
other place as shall be agreed upon by [REPRESENTATIVE], as representative of
the Underwriters (the "Representative") and the Depositor, at 9:00 A.M.,
______ time, on ________, ___, or at such other date or time, not later than
five full business days thereafter, as shall be agreed upon by the
Representative and the Depositor (such date and time being referred to herein
as the "Closing Date"). On the Closing Date, the Certificates shall be
delivered to the Representative for the account of each Underwriter 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 the
Certificates 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 Certificates
will be represented by book-entries on the records of DTC and participating
members thereof. Definitive certificates representing the Certificates will be
available only under limited circumstances as set forth in the Pooling
Agreement.
4. FURTHER AGREEMENTS OF THE DEPOSITOR. The Depositor agrees with each of
the several Underwriters:
(a) 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 Representative of such timely filing.
(b) During any period in which a prospectus relating to the
Certificates is required to be delivered under the Securities Act: to
advise the Representative 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
Representative; to advise the Representative promptly of (i) the
effectiveness of any post-effective amendment to the Registration
Statement, (ii) any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) 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, (iv) the
issuance by the Commission of any order preventing or suspending the use
of any prospectus relating to the Certificates or the initiation or
threatening of any proceedings for that purpose and (v) the receipt by
the Depositor of any notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; 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 Certificates 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.
(c) If, during any period in which a prospectus relating to the
Certificates 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
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untrue statement of a material fact or omit to 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 Representative 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.
(d) To furnish promptly to each of the Representative 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 (c) of this Section 4, to
deliver promptly without charge to the Representative such number of the
following documents as the Representative may from time to time
reasonably request: (i) 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 the Pooling
Agreement) and (ii) any preliminary prospectus supplement, the Prospectus
and any amendment or supplement thereto.
(e) During any period in which a prospectus relating to the
Certificates 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 Representative, be required by
the Securities Act or requested by the Commission.
(f) For so long as any of the Certificates are outstanding or until
such time as the Underwriters shall cease to maintain a secondary market
in the Certificates, to furnish to the Underwriters (i) copies of all
materials furnished by the Issuer to the holders of the Certificates 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 (ii) from time to time, such other information
concerning the Bank or the Depositor filed with any government or
regulatory authority or national securities exchange which is otherwise
publicly available as the Representative may reasonably request and such
other information concerning the Issuer as the Representative may
reasonably request.
(g) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Certificates for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Certificates; provided that in connection therewith neither the Bank nor
the Depositor shall be required to qualify to do business or to file a
general consent to service of process in any jurisdiction.
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(h) 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 Representative.
(i) For a period from the date of this Agreement until the
retirement of the Certificates, to deliver to you the annual statement of
compliance and the annual independent certified public accountants'
report furnished to the Trustee, pursuant to the Pooling Agreement, as
soon as such statements and reports are furnished to the Trustee.
(j) To the extent, if any, that the ratings provided with respect to
the Certificates by _________ ("____") and _________ ("____") 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.
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 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 Representative; and the Representing
Parties shall have filed the Prospectus Supplement with the Commission
pursuant to Rule 424(b) of the Rules and Regulations within the time
period prescribed by such rule.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Certificates,
the Pooling Agreement, 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 Pooling Agreement shall have been duly executed and
delivered by the Depositor, the Seller, the Master Servicer and the
Trustee and the Certificates shall have been duly executed and delivered
by the Trustee on behalf of the Issuer and duly authenticated by the
Trustee.
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(d) The Representative shall have received evidence satisfactory to
it and its counsel that on or before the Closing Date, UCC-1 financing
statements required to be filed on or prior to the Closing Date pursuant
to the Pooling Agreement have been filed.
(e) [_____________], ______ of the Bank, shall have furnished to the
Representative his written opinion, addressed to the Underwriters and
dated the Closing Date, regarding the due organization and power and
authority of the Seller, the due authorization, execution and delivery by
the Seller of the Pooling Agreement, 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 Representative and its
counsel.
(f) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Depositor, shall have furnished to the Representative their written
opinion, as 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 Pooling Agreement by the Depositor, in each
case, in form and substance reasonably satisfactory to the Representative
and its counsel.
(g) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Issuer, shall have furnished to the Representative 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, and (ii)
other general Delaware law matters with respect to the Issuer, including,
without limitation, the due authorization and issuance of the
Certificates, in each case, in form and substance reasonably satisfactory
to the Representative and its counsel.
(h) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative their written opinion, addressed to the Underwriters and
dated the Closing Date, regarding (i) the enforceability of the Pooling
Agreement, (ii) the validity of the security interests created thereby,
(iii) the due authorization and issuance of the Certificates, (iv) no
violations of law, (v) compliance with applicable federal securities
laws, (vi) exemption of the Depositor, the Bank and the Issuer from
registration as an investment company under the Investment Company Act of
1940, (vii) the conformity in all material respects of the Pooling
Agreement to the description thereof contained in the Registration
Statement and the Prospectus, (viii) negative assurances concerning the
Prospectus and (ix) the lack of qualification of the Pooling Agreement
under the Trust Indenture Act, in each case in form and substance
reasonably satisfactory to the Representative and its counsel.
(i) [_______________], special Alabama counsel to the Bank, shall
have furnished to the Representative their written opinion, addressed to
the Underwriters and dated the Closing Date, regarding the perfection and
priority of the security interests created by the Pooling Agreement.
(j) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative their written opinion, addressed to the Underwriters and
dated the Closing Date, with
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respect to certain matters relating to the transfer of the Receivables to
the Issuer, in form and substance reasonably satisfactory to the
Representative and its counsel.
(k) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative 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 trade partnership) taxable as a corporation
for federal income tax purposes and that the Issuer will be classified as
a grantor trust under subpart E, part 1, subchapter J, chapter 1 of
subtitle A of the Code, (ii) the holders of the Certificates will be
treated as the owners of undivided interests in the interest and
principal portions of the Issuer represented by the Certificates for
federal income tax purposes and (iii) the statements set forth 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
Representative and its counsel.
(l) The Representative shall have received from [_______________],
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representative may require, and
the Representing Parties shall have furnished to such counsel such
documents as they reasonably request for enabling them to pass upon such
matters.
(m) ____________, counsel to the Trustee, shall have furnished to
the Representative their written opinion, as counsel to the Trustee,
addressed to the Underwriters and dated the Closing Date, regarding the
due organization of the Trustee, the due authorization, execution and
delivery by the Trustee of the Pooling Agreement, no conflicts or
violations of organizational documents, contracts or law and other
related matters, in form and substance reasonably satisfactory to the
Representative and its counsel.
(n) The Representative 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 Representative
verifying the accuracy of such financial and statistical data contained
in the Prospectus as the Representative shall deem advisable. In
addition, if any amendment or supplement to the Prospectus made after the
date hereof contains financial or statistical data, the Representative
shall have received a letter dated the Closing Date confirming the
Procedures Letter and providing additional comfort on such new data.
(o) The Representative shall have received a certificate, dated the
Closing Date, of any of the Chairman of the Board, the President, any
Senior Vice President or the chief financial officer of the Depositor
stating that (A) the representations and warranties of the Depositor
contained in this Agreement and the Pooling Agreement are true and
correct on and as of the Closing Date, (B) the Depositor has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and under the Pooling Agreement at or
prior to the Closing Date, (C) 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
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the Commission, and (D) since ______, ____, there has been no material
adverse change in the financial position or results of operations of the
Depositor 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 Depositor
or the Issuer except as set forth in or contemplated by the Registration
Statement and the Prospectus.
(p) The Representative shall have received a certificate, dated the
Closing Date, of any of the Chairman of the Board, the President, any
Senior Vice President or the Chief Financial Officer of the Bank stating
that (A) the representations and warranties of the Bank contained in this
Agreement and the Pooling Agreement are true and correct on and as of the
Closing Date, (B) the Bank has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder and
under the Pooling Agreement at or prior to the Closing Date, and (C)
since ______, ____, there has been no material adverse change in the
financial position or results of operations of the Bank 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 Issuer except as set forth in or
contemplated by the Registration Statement and the Prospectus.
(q) The Representative shall have received a letter from ____
stating that the Class A Certificates have received a rating of "___"
from _____ and a letter from ____ stating that the Class A Certificates
have received a rating of "___" from _____.
(r) The Representative shall have received a letter from ____
stating that the Class B Certificates have received a rating of "___"
from _____ and a letter from ____ stating that the Class B Certificates
have received a rating of "___" from _____.
(s) 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) 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 Certificates on the terms and in the manner contemplated
in the Prospectus.
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.
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6. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by notice given
to and received by the Depositor and the Bank prior to delivery of and payment
for the Certificates if, prior to that time, any of the events described in
Section 5(s) shall have occurred or any of the conditions described in Section
5(o), 5(q) or 5(r) 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 Certificates 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 Representative may make arrangements for the purchase of
such Certificates by other persons satisfactory to the Depositor and the
Representative, 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
Certificates which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date in the respective proportions
which the principal amount of Certificates set forth opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to
the aggregate principal amount of Certificates 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 Certificates on the Closing
Date if the aggregate principal amount of Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds one-eleventh of the aggregate principal amount of the
Certificates 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 Certificates which it
agreed to purchase on the Closing Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded and the remaining Underwriters
or other underwriters satisfactory to the Representative and the
Depositor and the Bank do not elect to purchase the Certificates 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 Depositor or the Bank, except that the
Representing Parties will continue to be liable for the payment of
expenses to the extent set forth in Sections 8 and 12 and except that the
provisions of Sections 9 and 10 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 7,
purchases Certificates which a defaulting Underwriter agreed but failed
to purchase.
(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 Certificates of a
defaulting Underwriter, either the Representative, the Depositor or the
Bank 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
Depositor, opinion of counsel for the Bank or counsel for the
Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or
11
arrangement, and the Representing Parties agree 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 6 terminating the obligations of the Underwriters
hereunder, (b) the Depositor shall fail to tender the Certificates for
delivery to the Underwriters for any reason permitted under this Agreement or
(c) the Underwriters shall decline to purchase the Certificates for any reason
permitted under this Agreement, the Representing Parties 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 Certificates,
and upon demand the Representing Parties shall pay the full amount thereof to
the Representative. If this Agreement is terminated pursuant to Section 7 by
reason of the default of one or more Underwriters, the Representing Parties
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 any preliminary prospectus supplement,
the Registration Statement or the Prospectus or in any amendment or
supplement thereto 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, 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 untrue statement or alleged
untrue statement in or omission or alleged omission from 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; provided, further that such indemnity with
respect to any preliminary prospectus supplement or any amendment or
supplement thereto shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage or liability
purchased the Certificates which are the subject thereof (or to the
benefit of any person controlling such Underwriter) if at or prior to the
written confirmation of the sale of such Certificates a copy of the
Prospectus (or the Prospectus as amended or supplemented) was not sent or
delivered to such person and the untrue statement or omission of a
material fact contained in such preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus as amended or
12
supplemented) unless the failure is the result of noncompliance by the
Depositor with Section 4(d).
(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(b) 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 or the Prospectus or in any amendment or
supplement thereto 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 was made in reliance upon and in conformity with the written
information furnished to the Representing Parties by or on behalf of such
Underwriter specifically for use therein, and shall reimburse the
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
Representative by or on behalf of the Underwriters (the "Underwriters'
Information") consists solely of the ______ paragraphs of text and the
following table under the caption "Underwriting" 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
13
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 (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) 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, (3) 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 (4) 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, but if settled with its written 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 includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceedings.
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 Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Representing Parties on the one hand and the
14
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 Certificates 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 Certificates 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 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 Certificates 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 and 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 and 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 Certificates and any taxes payable in that connection; (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
15
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any preliminary prospectus supplement, 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 by mail, telex or other means of
communications; (e) the fees and expenses of qualifying the Certificates under
the securities laws of the several jurisdictions as provided in Section 4(g)
and of preparing, printing and distributing Blue Sky Memoranda (including
related fees and expenses of counsel to the Underwriters); (f) any fees
charged by _____ and _____ for rating the Certificates; (g) all fees and
expenses of the Trustee and its counsel; and (h) 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 Certificates which they may sell and the expenses of advertising
any offering of the Certificates 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 Certificates and shall remain in full force and 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 Certificates.
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 the Representative at 00
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: ___________, with a
copy to the Legal Department;
(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: [ ];
(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;
provided, however, that any notice to an Underwriter pursuant to Section 9(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by
the Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Representing
Parties shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representative.
16
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.
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.
17
If the foregoing is in accordance with your understanding of the
agreement between the Depositor, the Bank and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
REGIONS BANK
By
----------------------------------------
Name:
Title:
REGIONS ACCEPTANCE LLC
----------------------------------------
Name:
Title:
Accepted:
[REPRESENTATIVE],
For Itself and as Representative
of the Several Underwriters
By
----------------------------------------
Authorized Signatory
18
SCHEDULE I
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Principal Amount of Class A Principal Amount of Class
Underwriters Certificates B Certificates
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----------------------------------------------------------- ------------------------------ ---------------------------
[REPRESENTATIVE] $ $
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----------------------------------------------------------- ------------------------------ ---------------------------
