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EXHIBIT 1.1
____________________ 200_-_
[$__________ CLASS A-1 _____% ASSET BACKED NOTES
$__________ CLASS A-2 _____% ASSET BACKED NOTES
$__________ CLASS A-3 _____% ASSET BACKED NOTES
$__________ ASSET BACKED CERTIFICATES](1)
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[$__________ ASSET BACKED CERTIFICATES, CLASS A
$__________ ASSET BACKED CERTIFICATES, CLASS B]
[XXXXXX BROTHERS ASSET SECURITIZATION LLC]
(Company)
------------------------------
(Sponsor)
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(Sponsor SPE)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
XXXXXX BROTHERS INC.
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
(000) 000-0000
Ladies and Gentlemen:
--------
(1) This form of Underwriting Agreement contains alternative provisions that
relate to offerings of Asset Backed Certificates, on the one hand, and Asset
Backed Notes and Asset Backed Certificates, on the other hand.
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Xxxxxx Brothers Asset Securitization LLC, a Delaware limited liability
company (the "Company") and a wholly owned, special purpose, bankruptcy remote
subsidiary of [SPONSOR], a [ ], proposes to sell to the Underwriters listed in
Schedule I hereto (the "Underwriters") [$__________ aggregate principal amount
of Class A-1 _____% Asset Backed Notes (the "Class A-1 Notes"), $__________
aggregate principal amount of Class A-2 _____% Asset Backed Notes (the "Class
A-2 Notes"), $__________ aggregate principal amount of Class A-3 _____% Asset
Backed Notes (the "Class A-3 Notes" and, together with the Class A-1 Notes and
the Class A-2 Notes, the "Notes"), set forth in Section 1 hereof] [the aggregate
principal amount of ___% Asset Backed Certificates, Class A (together with the
Tail Certificate described below, the "Class A Certificates") and the aggregate
principal amount of ___% Asset Backed Certificates, Class B (the "Class B
Certificates", and together with the Class A Certificates, the "Securities" or
the "Certificates"), set forth in Section 1 hereof]. The [Securities][Notes] are
issued by the ____________________ 200_-_ (the "Trust"). The Trust also will
issue $__________ aggregate principal amount of certificates (the "Certificates"
and, together with the Notes, the "Securities"). Each Certificate will represent
a fractional undivided interest in the Trust. [Each Note will be secured by the
assets of the Trust pursuant to the Indenture (as hereinafter defined).]
The assets of the Trust (the "Trust Property") include, among other
things, a pool of retail motor vehicle loans and/or retail installment sale
contracts secured by new and used automobiles, motorcycles, vans, trucks, buses
and/or trailers, light duty trucks and other similar vehicles (the
"Receivables") and certain monies received under the Receivables [on and] after
__________ __, 200_ (the "Cutoff Date"), such Receivables to be serviced for the
Trust by ____________________ (the "Sponsor") in its capacity as servicer (in
such capacity, the "Servicer").
The Receivables will be sold to __________, a __________ (the "Sponsor
SPE") by the Sponsor pursuant to a Purchase Agreement, dated as of the Closing
Date (the "Sponsor Purchase Agreement") between the Sponsor SPE and the Sponsor
and to the Company by the Sponsor SPE pursuant to a Purchase Agreement, dated as
of the Closing Date (the "Sponsor SPE Purchase Agreement") between the Company
and the Sponsor SPE. The Receivables will be conveyed by the Company to the
Trust pursuant to a [Pooling and Servicing Agreement] [Sale and Servicing
Agreement] dated as of the Closing Date (the ["Pooling and Servicing Agreement"]
["Sale and Servicing Agreement"]) among the Company, the Servicer[, [Indenture
Trustee], as indenture trustee (the "Indenture Trustee")] and __________, as
[owner] trustee (the "[Owner] Trustee")].
[The Notes will be issued pursuant to an Indenture to be dated as of
the Closing Date (the "Indenture") between the Trust and the Indenture Trustee.
The Servicer will agree to perform certain administrative tasks pursuant to an
Administration Agreement to be dated as of the Closing Date (the "Administration
Agreement") among the Sponsor, the Trust and the Indenture Trustee. The
Certificates will be issued pursuant to [an] [a] [Amended and Restated] Trust
Agreement to be dated as of the Closing Date (the "Trust Agreement") between the
Company and the Owner Trustee.] [The Class A Certificates will be issued in an
aggregate principal
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amount of $__________, which is equal to approximately ___% of the aggregate
principal balance of the Receivables as of the Cutoff Date, and $__________
aggregate principal amount of the Class A Certificates (the "Tail Certificate")
will initially be retained by the Sponsor. The Class B Certificates will be
issued in an aggregate principal amount of $__________, which is equal to
approximately ___% of the aggregate principal balance of the Receivables as of
the Cutoff Date. Payments in respect of the Class B Certificates are, to the
extent provided in the Pooling and Servicing Agreement, subordinated to the
rights of the holders of the Class A Certificates. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement.]
The Company has prepared, in conformity in all material respects with
the provisions of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations"), and filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Reg. No. [ ]), including a prospectus,
relating to the Securities. [The Sponsor has] also prepared an ABS term sheet
for the [Securities] [Notes] (the "ABS [Security] [Note] Term Sheet") in
conformity in all material respects with the Act, the Rules and Regulations and
all requirements applicable to ABS term sheets and computational materials set
forth in no-action letters issued by the Commission.] The registration statement
as amended at the time it became effective, or, if any post-effective amendment
has been filed with respect thereto, as amended by the most recent
post-effective amendment at the time of its effectiveness, is referred to as the
"Registration Statement," the form of base prospectus included in the
Registration Statement as most recently filed with the Commission is referred to
as the "Base Prospectus" and the form of the prospectus which includes the Base
Prospectus and a prospectus supplement describing the [Securities] [Notes] and
the offering thereof (the "Prospectus Supplement") which prospectus is first
filed on or after the date of this Agreement in accordance with Rule 424(b) is
referred to in this Agreement as the "Prospectus".
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean the latest of the dates that the
Registration Statement or the most recent post-effective amendment thereto
became effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Rule 424" refers to
such rule under the Act. "Basic Documents" shall mean the Sponsor Purchase
Agreement, the Sponsor SPE Purchase Agreement, [the Reserve Account Agreement,]
the [Pooling and Servicing Agreement] [Sale and Servicing Agreement], [the
Indenture, the Trust Agreement, the Administration Agreement, the Certificate
Purchase Agreement with respect to the Certificates (the "Certificate Purchase
Agreement"),] this Agreement, the Securities and [each] [the] Depository
Agreement. "Participating Entity" means each of the Sponsor and the Sponsor SPE.
"Securityholder" means any Noteholder and any Certificateholder and "Security
Owner" means the beneficial owner of any Note or Certificate. To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in [the Pooling and Servicing Agreement] [Appendix X to the Sale and
Servicing Agreement].
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1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company, the respective aggregate principal amounts and classes of [Securities]
[Notes] set forth opposite such Underwriter's name in Schedule I hereto. The
purchase price for [Securities] [Notes] of any class will be the applicable
percentage set forth on Schedule I hereto of the aggregate principal amount of
such class purchased[, plus, in each case, accrued interest, if any, on the
principal amount thereof at the applicable [Interest Rate or] Certificate Rate
(as such terms are defined in the Prospectus), as the case may be, from (but
excluding) __________, 200_, to (and including) the Closing Date.]
2. The Company understands that the Underwriters intend (i) to make a
public offering of the [Securities] [Notes] purchased by the Underwriters
hereunder as soon after the Registration Statement and this Agreement have
become effective as in the judgment of the Company and the Representative is
advisable and (ii) initially to offer the [Securities] [Notes] purchased by the
Underwriters hereunder upon the terms set forth in the Prospectus.
3. Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made to the Company or to its order by wire transfer of same
day funds at the office of Xxxxx, Brown & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at [10:00 A.M.], New York, New York, time on __________ __, 200_, or
at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representative and the Company may agree upon in
writing (the "Closing Date"). As used herein, the term "Business Day" means any
day other than a day on which banks generally are permitted or required to be
closed in New York, New York, or __________, __________.
Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made against delivery to the Representative for the
respective accounts of the Underwriters on the Closing Date of such [Securities]
[Notes] in definitive form registered in the name of Cede & Co. as nominee of
The Depository Trust Company and in such denominations, as permitted by the
Basic Documents, as the Representative shall request in writing not later than a
reasonable time prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the [Securities] [Notes]
duly paid by the Company. [The Company shall make such definitive certificates
representing the [Securities] [Notes] available for inspection by the
Representative at the office of ____________________ not later than [1:00 P.M.],
[City, State] time, on the Business Day prior to the Closing Date.]
4. The Company represents and warrants to and agrees with each
Underwriter that:
(a) The Registration Statement, including amendments thereto
as may have been required on or prior to the date hereof, relating to
the [Securities] [Notes], has been filed with the Commission and such
Registration Statement as amended has become effective. The conditions
to the use by the Company of a Registration Statement on Form
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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.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of such Participating
Entity, threatened by the Commission, and (i) on the Effective Date of
the Registration Statement, the Registration Statement conformed in all
material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein,
or necessary to make the statements therein not misleading and (ii) at
the time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date the Registration Statement will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
and such document will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions contained in the Prospectus other than the
Company Information (as defined herein).
(c) The Company is a corporation that is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization, with power and authority to own its
properties and conduct its business as now conducted by it and had at
all relevant times, and has, full power, authority and legal right to
acquire, own and sell the Receivables and the other Trust Property. The
Company has the power, authority and legal right to execute, deliver
and perform this Agreement and each of the other Basic Documents to
which it is a party and to carry out their respective terms and to sell
and assign the respective property to be sold and assigned to and
deposited with the [Owner] Trustee as Trust Property.
(d) The execution, delivery and performance by the Company of
each of the Basic Documents to which it is a party and the consummation
of the transactions contemplated hereby and thereby have been duly
authorized by the Company by all necessary corporate action. The Basic
Documents to which the Company is a party have been duly executed and
delivered by the Company and, when executed and delivered by the
Company and the other parties thereto, each of such Basic Documents
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its respective
terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights
of creditors generally and to equitable limitations on the availability
of specific remedies.
(e) No consent, approval, authorization, license or other
order or action of, or filing or registration with, any court or
governmental authority, bureau or agency is required in connection with
the execution, delivery or performance by the Company of
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any of the Basic Documents to which it is a party or the consummation
of the transactions contemplated hereby or thereby except such as have
been obtained and made under the Act and the Rules and Regulations or
state securities laws and any filings of UCC financing statements.
(f) The Company is not in violation of its organizational
documents or bylaws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any agreement or instrument to which it is a party or by which it is
bound which violation or default would have a material adverse effect
on the transactions contemplated herein or in the Basic Documents. The
execution, delivery and performance by the Company of the Basic
Documents to which it is a party, the consummation of the transactions
contemplated hereby and thereby and the compliance with the terms and
provisions hereof and thereof will not materially conflict with or
result in a material breach or violation of any of the terms and
provisions of, constitute (with or without notice or lapse of time or
both) a material default under or result in the creation or imposition
of any Lien (other than as contemplated by the Basic Documents) upon
any of its properties pursuant to the terms of, (A) the organizational
documents or bylaws of the Company, (B) any material indenture,
contract, lease, mortgage, deed of trust or other instrument or
agreement to which the Company is a party or by which the Company is
bound, which violation or default would have a material adverse effect
on the transactions contemplated herein or in the Basic Documents or
(C) any law, order, rule or regulation applicable to the Company of any
regulatory body, any court, administrative agency or other governmental
instrumentality having jurisdiction over the Company.
(g) There are no proceedings or investigations pending, or to
the knowledge of the Company threatened, to which the Company is a
party before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (i) that are required to be
disclosed in the Registration Statement and are not so disclosed, (ii)
asserting the invalidity of this Agreement or any of the Basic
Documents, (iii) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iv) seeking any determination
or ruling that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability
of, this Agreement or any of the Basic Documents, (v) that may
materially and adversely affect the federal or state income, excise,
franchise or similar tax attributes of any of the Securities, or (vi)
which, if determined adversely, could individually or in the aggregate
reasonably be expected to materially adversely affect the interests of
the holders of any of the Securities or the marketability of any of the
Securities.
(h) There are no contracts or other documents to which the
Company is a party of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement pursuant to the Act and the Rules and
Regulations which are not filed or described as required.
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(i) The representations and warranties of the Company
contained in the Basic Documents to which it is a party are true and
correct as of the dates of the respective Basic Documents in all
material respects.
(j) By assignment and delivery of each of the Receivables to
the Trust as of the Closing Date, the Company will transfer title in
the Receivables to the Trust, subject to no Lien created by the Company
prior or equal to the ownership or security interest granted to the
Trust.
5. Each Participating Entity represents and warrants (jointly and
severally) to and agrees with each Underwriter that:
(a) (i) On the date of this Agreement, the Prospectus conforms
in all material respects to the requirements of the Act and the Rules
and Regulations, and does not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii) at
the time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of [Securities] [Notes] will,
at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval System ("XXXXX"),
except to the extent permitted by Regulation S-T; and such document
will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions (x) made in reliance upon and in conformity with information
furnished to the Participating Entities in writing by any Underwriter
through the Representative expressly for use in the Prospectus
(collectively, "Underwriter Information") or (y) under the caption "The
Company" in the Base Prospectus (the "Company Information"). Each
Participating Entity hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only Underwriter Information furnished
consists of [the statements in the first sentence of the [eighth]
paragraph under the caption "Underwriting" in the Prospectus Supplement
regarding the Underwriters' intention to make a market in the
[Securities] [Notes]].
(ii) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and 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 thereunder (the "Exchange Act Regulations") and, when read
together with
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the other information in the Prospectus, at the time the Registration
Statement became effective, at the date of the Prospectus and at the
Closing Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, no
representation or warranty is made as to documents deemed to be
incorporated by reference in the Registration Statement as the result
of filing any Current Report on Form 8-K at the request of the
Underwriters except to the extent such documents accurately reflect or
are accurately based upon information furnished by or on behalf of the
Participating Entities to the Underwriters for the purpose of preparing
such documents.
(b) The computer tapes with respect to the Receivables to be
sold to the Trust created as of the Cutoff Date (the "Computer Tapes"),
and made available to the Representative by the Sponsor [and
__________, respectively,] were complete and accurate in all material
respects as of the date thereof.
(c) Such Participating Entity is either a ___________ or
_____________ that is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, with power
and authority to own its properties and conduct its business as now
conducted by it and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables and
the other Trust Property. Such Participating Entity has the power,
authority and legal right to execute, deliver and perform this
Agreement and each of the other Basic Documents to which it is a party
and to carry out their respective terms and to sell and assign the
respective property to be sold and assigned to and deposited with the
[Owner] Trustee as Trust Property.
(d) The Securities have been duly authorized, and, when issued
and delivered pursuant to the Basic Documents and duly executed and
authenticated by the [Owner] Trustee [and the Indenture Trustee, as
applicable,] will be duly and validly issued, authenticated and
delivered and entitled to the benefits provided by the Basic Documents.
The execution, delivery and performance by such Participating Entity of
each of the Basic Documents to which it is a party and the consummation
of the transactions contemplated hereby and thereby have been duly
authorized by such Participating Entity by all necessary action. The
Basic Documents to which such Participating Entity is a party have been
duly executed and delivered by such Participating Entity and, when
executed and delivered by such Participating Entity and the other
parties thereto, each of such Basic Documents will constitute a legal,
valid and binding obligation of such Participating Entity, enforceable
against such Participating Entity in accordance with its respective
terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights
of creditors generally and to equitable limitations on the availability
of specific remedies. The Securities and the Basic Documents conform to
the descriptions thereof in the Prospectus in all material respects.
[The Notes and the
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Indenture have been duly executed and delivered by the Trust and, when
the Indenture is executed and the Notes are authenticated by the
Indenture Trustee, the Indenture and the Notes will constitute legal,
valid and binding obligations of the Trust, enforceable in accordance
with their respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws
affecting enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific remedies.]
(e) No consent, approval, authorization, license or other
order or action of, or filing or registration with, any court or
governmental authority, bureau or agency is required in connection with
the execution, delivery or performance by such Participating Entity of
any of the Basic Documents to which it is a party or the consummation
of the transactions contemplated hereby or thereby except such as have
been obtained and made under the Act and the Rules and Regulations or
state securities laws and any filings of UCC financing statements.
(f) Such Participating Entity possesses such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Participating Entity is in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a material adverse effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
material adverse effect or would not render a material portion of the
Receivables unenforceable; and the Participating Entity has not
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse effect, would have a
material adverse effect on its ability to perform its obligations under
each Basic Document to which it is a party or would render a material
portion of the Receivables unenforceable.
(g) Such Participating Entity is not in violation of its
organizational documents or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by
which it is bound which violation or default would have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents. The execution, delivery and performance by such
Participating Entity of the Basic Documents to which it is a party, the
consummation of the transactions contemplated hereby and thereby and
the compliance with the terms and provisions hereof and thereof will
not materially conflict with or result in a material breach or
violation of any of the terms and provisions of, constitute (with or
without notice or lapse
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of time or both) a material default under or result in the creation or
imposition of any Lien (other than as contemplated by the Basic
Documents) upon any of its properties pursuant to the terms of, (A) the
organizational documents or bylaws of such Participating Entity, (B)
any material indenture, contract, lease, mortgage, deed of trust or
other instrument or agreement to which such Participating Entity is a
party or by which such Participating Entity is bound, which violation
or default would have a material adverse effect on the transactions
contemplated herein or in the Basic Documents or (C) any law, order,
rule or regulation applicable to such Participating Entity of any
regulatory body, any court, administrative agency or other governmental
instrumentality having jurisdiction over such Participating Entity.
(h) There are no proceedings or investigations pending, or to
the knowledge of such Participating Entity threatened, to which such
Participating Entity is a party before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) that are required to be disclosed in the Prospectus and are not so
disclosed, (ii) asserting the invalidity of this Agreement or any of
the Basic Documents, (iii) seeking to prevent the issuance of the
Securities or the consummation of any of the transactions contemplated
by this Agreement or any of the Basic Documents, (iv) seeking any
determination or ruling that might materially and adversely affect the
performance by such Participating Entity of its obligations under, or
the validity or enforceability of, this Agreement or any of the Basic
Documents, (v) that may materially and adversely affect the federal or
state income, excise, franchise or similar tax attributes of any of the
Securities, or (vi) which, if determined adversely, could individually
or in the aggregate reasonably be expected to materially adversely
affect the interests of the holders of any of the Securities or the
marketability of any of the Securities.
(i) There are no contracts or other documents of a character
required to be described in the Prospectus pursuant to the Act and the
Rules and Regulations which are not filed or described as required.
(j) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Participating Entities,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Participating Entities,
other than those in the ordinary course of business, which are material
with respect to such entity and (C) there has been no material adverse
change in the financial statements of the Participating Entities.
(k) The representations and warranties of such Participating
Entity contained in the Basic Documents to which it is a party are true
and correct as of the dates of the respective Basic Documents in all
material respects.
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(l) By assignment and delivery of each of the Receivables of
the Sponsor to the Sponsor SPE by the Sponsor and to the Company by the
Sponsor SPE as of the Closing Date, the Sponsor will transfer title in
such Receivables to the Sponsor SPE and the Sponsor SPE will transfer
title of such Receivables to the Company, subject to no Lien prior or
equal to the ownership interest granted to the Sponsor SPE or the
Company, as applicable.
(m) ____________________ are independent public accountants
with respect to the Participating Entities within the meaning of the
Act and the Rules and Regulations.
6. Each Participating Entity and the Company, as applicable, covenants
and agrees (severally and not jointly) with the Underwriters that:
(a) Prior to the termination of the offering of the
[Securities] [Notes], the Company will not file or cause to be filed
any amendment of the Registration Statement or supplement to the
Prospectus without first furnishing to the Representative a copy of the
proposed amendment or supplement and giving the Representative a
reasonable opportunity to review the same. Subject to the foregoing
sentence, the Company will cause the Prospectus, properly completed,
and any supplement thereto, to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed [and the Company will cause the ABS [Security] [Note] Term
Sheet to be filed with the Commission pursuant to a Current Report on
Form 8-K within the second business day following the first day the ABS
[Security] [Note] Term Sheet has been sent to a prospective investor in
the [Securities] [Notes]] and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise
the Underwriters (i) when the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b) [and
the ABS [Security] [Note] Term Sheet shall have been filed pursuant to
a Current Report on Form 8-K], (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (iv) of the receipt by the Company of notification with
respect to the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its reasonable efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. The receipt by the Representative of any amendment
or supplement to the Registration Statement or Prospectus, as
applicable, shall not be deemed a waiver of any condition set forth in
Section 7 hereof.
(b) The Company will deliver, at its expense, to the
Representative, two signed copies of the Registration Statement (as
originally filed) and each amendment
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thereto, in each case including exhibits, and, during the period
mentioned in paragraph (c) below, and the Participating Entities will
deliver, at their expense, to each Underwriter as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request. [The Company will furnish or
cause to be furnished to the Representative copies of all reports
required by Rule 463 under the Act.]
(c) If during such period of time after the first date of the
public offering of the [Securities] [Notes] as in the opinion of
counsel for the Underwriters a prospectus relating to the [Securities]
[Notes] is required by law to be delivered in connection with sales by
an Underwriter or a dealer, any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not materially misleading, or
it is necessary to amend or supplement the Prospectus to comply with
applicable law, the Participating Entities will forthwith prepare and
furnish, at the expense of the Participating Entities, to the
Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Participating Entities) to which
[Securities] [Notes] may have been sold by the [Representative on
behalf of the] Underwriters and upon request by the Representative to
any other dealers identified by the Representative, such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be materially misleading or so that the Prospectus will
comply with applicable law. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(d) The Company will endeavor to qualify the [Securities]
[Notes] for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and
will continue such qualification in effect so long as reasonably
required for distribution of the [Securities] [Notes] and the
Participating Entities will pay all reasonable fees and expenses
(including fees and disbursements of counsel to the Representative to
the extent provided in Section 6(iii) hereof) incurred in connection
with such qualification and in connection with the determination of the
eligibility of the [Securities] [Notes] for investment under the laws
of such jurisdictions as the Representative may designate; provided,
however, that the Company shall not be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified;
and provided further that the Company shall not be required to file a
general consent to service of process in any jurisdiction.
(e) [On or before __________, 200_ the] [The] Participating
Entities will cause the Trust to make generally available to
Securityholders and to the Representative all financial information
required to be sent to Securityholders pursuant to the Basic Documents.
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13
(f) For the period from the date of this Agreement until the
retirement of all of the Securities the Participating Entities will, or
will cause the Servicer to, furnish to the Representative (i) copies of
each Servicer's Certificate and the annual statements of compliance
delivered to the [Owner] Trustee [or Indenture Trustee] pursuant to the
Basic Documents and the annual independent certified public
accountant's servicing reports furnished to the [Owner] Trustee [or
Indenture Trustee] pursuant to the Basic Documents, by first-class mail
at the same time such statements and reports are furnished to the
[Owner] Trustee [or Indenture Trustee], (ii) copies of each amendment
to any of the Basic Documents, (iii) copies of all other reports and
communications to any Securityholders or Security Owners, or to or from
the [Owner] Trustee, [Indenture Trustee, the Clearing Agency, any
Rating Agency or the Commission relating to the Trust or the
Securities, (iv) copies of each Opinion of Counsel and Officer's
Certificate delivered pursuant to the Basic Documents, as soon as
available, and (v) from time to time, such other information concerning
the Trust or the Participating Entities as the Representative may
reasonably request.
(g) If required, the Company will register the [Securities]
[Notes] pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to __________ __, 200_.
(h) To the extent, if any, that the ratings provided with
respect to the [Securities] [Notes] by the Rating Agencies are
conditional upon the furnishing of documents or the taking of any other
action by any Participating Entity or the Company, the Sponsor shall
furnish or cause to be furnished such documents and use reasonable
efforts to take any such other action.
(i) The Participating Entities will not, without the prior
written consent of the Representative, publicly offer or sell in the
United States any asset backed notes or asset backed certificates or
other similar securities representing interests in or secured by motor
vehicle loans and/or retail installment sale contracts secured by new
and/or used automobiles, motorcycles, vans, trucks, buses and/or
trailers, light duty trucks and/or other similar vehicles originated or
owned by any of the Participating Entities for a period of thirty days
following the commencement of the offering of the [Securities] [Notes]
to the public.
7. The Participating Entities will pay (or will promptly reimburse the
Company and/or the Underwriters to the extent that the Company and/or the
Underwriters shall have paid or otherwise incurred) all costs and expenses
incident to the performance of their respective obligations under this
Agreement, including, without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the [Securities] [Notes], (ii) incident to the
preparation, printing (or otherwise reproducing), filing and delivery under the
Act of the Registration Statement[,] [and] the Prospectus [and any preliminary
prospectus] [and the ABS [Security] [Note] Term Sheet]
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(including in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and determination
of eligibility for investment of the [Securities] [Notes] under the laws of such
jurisdictions as the Representative may designate (including fees and
disbursements of counsel for the Underwriters with respect thereto, (iv) related
to any filing with the National Association of Securities Dealers, Inc., (v) in
connection with the preparation, printing (including word processing and
duplication costs) and delivery of this Agreement, the Basic Documents and such
other documents as may be required in connection with the issuance, offering,
purchase, sale or delivery of the [Securities] [Notes] and any Blue Sky
Memorandum and the furnishing to the Underwriters and dealers of copies of the
Registration Statement[, the ABS [Security] [Note] Term Sheet] [, any
preliminary prospectus] and the Prospectus (including exhibits, amendments and
supplements thereto) as herein provided, (vi) the fees and disbursements of the
counsel of the Participating Entities and the Company and accountants and other
advisors [and all fees and disbursements of Underwriters' counsel other than a
portion of such fees and disbursements to be agreed between the Participating
Entities and the Representative], (vii) any fees and expenses payable to the
Clearing Agency, (viii) any fees and expenses payable to the Rating Agencies in
connection with the rating of the [Securities] [Notes] and (ix) any fees and
expenses of the [Owner] Trustee[, the Indenture Trustee and
____________________, as the collateral agent] including the fees and
disbursements of their respective counsel.
8. The obligations of the Underwriters to purchase and pay for the
[Securities] [Notes] will be subject to the accuracy in all material respects,
as of the date hereof and the Closing Date, of the representations and
warranties on the part of the Participating Entities herein, to the accuracy of
the statements of officers of the Participating Entities and the Company made in
any writing delivered at the Closing pursuant to the provisions hereof, to the
performance by each of the Participating Entities and the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) At each of the time this Agreement is executed and
delivered by the Participating Entities and the Company and at the
Closing Date, ____________________ shall have furnished to the
Representative letters dated, respectively, as of the date of this
Agreement and as of the Closing Date, substantially in the forms of the
drafts to which the Representative previously agreed and otherwise in
form and substance satisfactory to the Representative and
____________________, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
the financial statements of the [Sponsor] [Company], including the
related schedules and notes (collectively, the "Financial Statements")
and certain financial, statistical and other information contained in
the Prospectus and (ii) a letter dated the date of the computational
materials or Term Sheets, in form and substance as previously agreed to
by the Representative and otherwise satisfactory in form and substance
to the Underwriters and counsel for the Underwriters, to the effect
that such accountants have performed certain specified procedures, all
of which have been agreed to by the Representative as a result of which
they have determined that the information included in the computational
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materials or Term Sheets (if any), provided by the Underwriters to the
[Company] for filing on Form 8-K, is accurate.
(b) The Prospectus used to confirm sales of [Securities]
[Notes] shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 5(a) of this
Agreement; [the ABS [Security] [Note] Term Sheet shall have been filed
with the Commission pursuant to a Current Report on Form 8-K within two
business days following the first day the ABS [Security] [Note] Term
Sheet is first sent to prospective investors in the [Securities]
[Notes];] no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or, to the knowledge of the Company,
contemplated by the Commission; and all requests for additional
information from the Commission with respect to the Registration
Statement shall have been complied with to the reasonable satisfaction
of the Representative.
(c) The Representative shall have received officer's
certificates, dated the Closing Date, signed by any Vice President,
Secretary or more senior officer of each Participating Entity,
representing and warranting that, as of the Closing Date, the
representations and warranties of such Participating Entity in this
Agreement and the Basic Documents are true and correct, that such
Participating Entity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder or under
the Basic Documents at or prior to the Closing Date, and that since
__________ __, 200_, there has been no material adverse change, or any
development involving a material adverse change, in or affecting
particularly the Originator's portfolio of Motor Vehicle Loans or the
business or properties of the Trust, any Participating Entity or its
Affiliates which materially impairs the investment quality of the
[Securities] [Notes].
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any material adverse
change, or any development involving a material adverse change, in or
affecting the business, operations, financial condition or properties
of the Trust, any Participating Entity or its Affiliates which, in the
reasonable judgment of the Representative, materially impairs the
investment quality of the [Securities] [Notes] or makes it impractical
or inadvisable to proceed with completion of the sale of and payment
for the [Securities] [Notes], (ii) any downgrading in the rating
assigned to any debt securities of any Participating Entity by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g)(2) under the Act), and no such rating agency
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any such debt
securities.
(e) ____________________, general counsel of the Participating
Entities, shall have furnished to the Representative his written
opinion, dated the Closing Date, in
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form and substance satisfactory to the Representative and its counsel,
with respect to certain corporate matters [and securities law matters]
relating to each Participating Entity.
(f) Xxxxx Xxxxx & Xxxxx, special counsel to the Company, shall
have furnished to the Representative its written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative
and its counsel, with respect to certain corporate matters [and
securities law matters] relating to the Company.
(g) ____________________, special counsel to the Participating
Entities, shall have furnished to the Representative its written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, with respect to such matters as the
Representative may request.
(h) ____________________, special counsel to the Participating
Entities, shall have furnished its written opinion, dated the Closing
Date, with respect to (i) nonconsolidation under the Bankruptcy Code of
the assets and liabilities of the Sponsor SPE on the one hand, and
those of either the Sponsor or any other Affiliate subject to the
Bankruptcy Code on the other, in the event the Sponsor or any such
Affiliate were to become the subject of a case under the Bankruptcy
Code, (ii) the characterization of the transfer of the Receivables from
the Sponsor to the Sponsor SPE.
(i) The Representative shall have received an opinion of
Xxxxx, Xxxxx & Xxxxx, counsel to the Underwriters dated the Closing
Date, with respect to the validity of the Securities and such other
related matters as the Representative shall require and the
Participating Entities shall have furnished or caused to be furnished
to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(j) The Representative shall have received an opinion
addressed to the Underwriters from counsel to the [Owner] Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel.
[(k) The Representative shall have received from counsel for
the Indenture Trustee a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and its
counsel.]
[(l) ____________________ shall have furnished its written
opinion, dated the Closing Date, that the Trust and the Indenture
Trustee will have a first priority perfected security interest in the
Financed Vehicles located in the State of __________ and such opinion
shall be satisfactory in form and substance to the Representative.]
(m) If any Rating Agency shall have requested any legal
opinion, officer's certificate or other document not required by this
Agreement, the Representative also
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shall have received such legal opinion, officer's certificate or other
document together with a letter from the party delivering such opinion,
certificate or document allowing the Underwriters to rely on such
opinion, certificate or document as if it were addressed to the
Underwriters.
(n) At the Closing Date, the Class __ Notes shall be rated
"____" by Xxxxx'x, "____" by Fitch and "____" by Standard and Poor's
and the Class __ Certificates shall be rated "____" by Xxxxx'x, "____"
by Fitch and "____" by Standard and Poor's, and the Company shall have
delivered to the Underwriters a letter dated the Closing Date from each
Rating Agency, or other evidence satisfactory to the Underwriters,
confirming that the Notes and the Certificates have such ratings; and
since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Notes, the Certificates or
any other securities of the Company, the Participating Entities or any
of their respective Affiliates by any "nationally recognized
statistical rating agency", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act, and no such
rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of the Notes or any other securities of the Company, the Participating
Entities or any of their respective Affiliates.
(o) On the Closing Date, the representations and warranties of
the Participating Entities herein and in the Basic Documents will be
true and correct in all material respects.
(p) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and
performance of this Agreement and the Basic Documents shall have been
paid by the Participating Entities at or prior to the Closing Date.
(q) The Participating Entities shall have made or caused to be
made a deposit in the Reserve Account in the amount of the Reserve
Account Initial Deposit.
(r) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1 financing
statements have been filed in the offices of the Secretaries of State
of [list of filing locations] reflecting the interest of each of the
Company[,] [and] the Trust [and the Indenture Trustee] in the
Receivables, the other Trust Property and the proceeds thereof.
9. The Company, the Participating Entities and the Underwriters agree
to the following indemnification and contribution provisions:
(a) Each Participating Entity jointly and severally (except as
otherwise set forth at the conclusion of this paragraph) agrees to
indemnify and hold harmless each
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Underwriter and the Company and each person, if any, who controls each
Underwriter or the Company within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses reasonably incurred in connection
with investigating, preparing or defending any suit, action or
proceeding or any claim asserted), incurred by such Underwriter or the
Company or such controlling person and caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Prospectus (as amended or supplemented if the Participating Entities or
the Company shall have furnished such amendments or supplements
thereto) [or any preliminary prospectus] [or the ABS [Security] [Note]
Term Sheet,] or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with the Underwriter Information or the Company Information;
[provided, that to the extent that any such losses, claims, damages or
liabilities incurred by such Underwriter or the Company or such
controlling person shall have been caused by such an untrue statement
or alleged untrue statement (i) relating to Receivables originated by
__________ in its capacity as an originator or as to any such
Receivables assigned and sold by __________ to the [Sponsor] [Sponsor
SPE], (ii) with respect to __________ as the [sub]servicer of such
Receivables or relating to any such Receivables [sub]serviced by
__________, or (iii) with respect to __________ as the purchaser of any
such Receivables from the Company or the Trust upon a breach of a
representation, warranty or covenant or as to any Receivables so
purchased, in each case as provided by the applicable Basic Documents,
then and in each such event __________ shall be solely liable to such
Underwriter and the Company and such controlling persons for all such
losses, claims, damages and liabilities incurred by each of them in
accordance with the terms and provisions of this Section 8, and the
Sponsor shall not have any liability whatsoever to such Underwriter or
such controlling person for or to the extent of any such losses,
claims, damages or liabilities].
(b) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other
expenses reasonably incurred in connection with investigating,
preparing or defending any suit, action or proceeding or any claim
asserted), incurred by such Underwriter or such controlling person and
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (as amended or
supplemented if the Company shall have furnished such amendments or
supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any untrue
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statement or omission or alleged untrue statement or omission in the
Prospectus other than any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with the Company Information.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Participating Entities and the Company,
each director and officer of the Participating Entities and the Company
and each person who controls any Participating Entity or the Company
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Participating Entities and the Company to each Underwriter, but only
with reference to Underwriter Information delivered by such
Underwriter.
(d) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity
may be sought pursuant to any of the three preceding paragraphs, such
person (the "Indemnified Person") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding; provided that the failure of the
Indemnified Person to give notice shall not relieve the Indemnifying
Person of its obligations under this Section 8 except to the extent (if
any) that the Indemnifying Person shall have been prejudiced thereby.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred promptly following
submission of a documented request for such reimbursement. Any such
separate firm for the Underwriters and such control persons of the
Underwriters shall be designated in writing by the Representative, any
such separate firm for the Participating Entities, their directors,
officers and control persons shall be designated in writing by the
Sponsor and any such separate firm for the Company, its directors,
officers and control persons shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement
of any claim or proceeding effected without its written consent, but if
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settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an Indemnified Person shall have made two requests of an
Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for
any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the second aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such requests prior to the date of such
settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes
an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second
and third paragraphs of this Section 8 is determined by a court to be
unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnified Person on the one hand
and the Indemnifying Person on the other hand from the offering of the
Securities 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 Indemnified Person on the one
hand and the Indemnifying Person on the other in connection with the
statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Participating Entities on the one
hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Participating Entities and
the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the
Securities, the relative benefits received by the Participating
Entities on the one hand and the Company on the other shall be deemed
to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Participating
Entities and the [transaction fee] received by the Company bear to the
aggregate public offering price of the Securities, the relative
benefits received by the Underwriters on the one hand and the
Participating Entities on the other shall be deemed to be in the same
respective proportions as the total underwriting discounts and the
commission received by the Underwriters and the net proceeds from the
offering (before
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deducting expenses) received by the Participating Entities bear to the
aggregate offering price of the Securities, the relative benefits
received by the Underwriters on the one hand and the Company on the
other shall be deemed to be in the same respective proportions as the
total underwriting discounts and the commission received by the
Underwriters and the [transaction fee] received by the Company bear to
the aggregate offering price of the Securities, and the relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions
as the [transaction fee] received by the Company and the total
underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The
relative fault of the Indemnified Person on the one hand and the
Indemnifying Person on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Participating Entities, the
Company or by any of the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) The Participating Entities, the Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, in no event shall [(i)] an
Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions
received by it in connection with the offering of the [Securities]
[Notes] exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission [or (ii) the Company
be required to contribute any amount in excess of the amount by which
the [transaction fee] received by the Company exceeds the amount of any
damages that the Company has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission]. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 8 are several in proportion to the respective aggregate
principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
(g) The indemnity and contribution agreements contained in
this Section 8 are in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to
above.
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(h) The indemnity and contribution agreements contained in
this Section 8 and the representations and warranties of the
Participating Entities and the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of any Participating Entity or the Company or any of
their officers or directors or any other person controlling any
Participating Entity or the Company and (iii) acceptance of and payment
for any of the Securities.
10. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Participating Entities and the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the New York
Stock Exchange or the American Stock Exchange, or there shall have been any
setting of minimum prices for trading on either such exchange; (ii) trading of
any securities of or guaranteed by any Participating Entity shall have been
suspended or halted on any exchange or in any over-the-counter market; (iii) a
moratorium on commercial banking activities in New York or __________ shall have
been declared by either federal, New York or __________ authorities; (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representative is material and adverse and which, in the judgment of the
Representative, makes it impracticable to market the [Securities] [Notes] on the
terms and in the manner contemplated in the Prospectus or enforce contracts for
the sale of the [Securities] [Notes]; (v) if the rating assigned by any
nationally recognized securities rating agency (to which any Participating
Entity has applied for such rating) to any debt securities of or guaranteed by
any Participating Entity as of the date hereof shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of or guaranteed by any Participating Entity; or (vi) if
there shall have come to the Representative's attention any facts that would
cause the Representative to reasonably determine in good faith that the
Prospectus, at the time it was required to be delivered to a purchaser of
[Securities] [Notes], contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading.
11. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any [Securities] [Notes] which it has agreed to purchase hereunder on
such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, and (iii) the aggregate
principal amount of [Securities] [Notes] which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the [Securities] [Notes] to be purchased by the
Underwriters on such date, the other Underwriters shall be obligated to purchase
[Securities] [Notes] which such defaulting Underwriter agreed but failed or
refused to purchase on such date. If on the Closing Date (i) any Underwriter
shall fail or refuse to purchase [Securities] [Notes] which it has agreed to
purchase
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hereunder on such date, (ii) such failure or refusal shall constitute a default
in the performance of such Underwriter's obligations hereunder, (iii) the
aggregate principal amount of [Securities] [Notes] with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
[Securities] [Notes] to be purchased by the Underwriters on such date, and (iv)
arrangements satisfactory to the non-defaulting Underwriters and the Company for
the purchase of such [Securities] [Notes] are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or any Participating Entity. In any
such case either the Representative, any Participating Entity or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven business days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. If this Agreement shall be terminated by the Underwriters, or any
one of them, because of any failure or refusal on the part of any Participating
Entity to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any Participating Entity shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, in each case, other than in
connection with any default by the Underwriters under the preceding paragraph
eleven, the Participating Entities agree to reimburse the Underwriters,
severally, or such Underwriter which has so terminated this Agreement with
respect to itself, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Underwriter(s) in
connection with this Agreement or the offering contemplated thereunder.
13. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed, delivered by hand or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/x Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000 (201) 524-2000 (Facsimile No: (___) ___-____), Attention:
____________________. Notices to the Participating Entities shall be given to
them at __________, ____________________ (Facsimile No.: (___) ___-____),
Attention: ____________________. Notices to the Company shall be given to it at
__________, ____________________ (Facsimile No.: (___) ___-____), Attention:
____________________.
14. This Agreement shall inure to the benefit of and be binding upon
the Participating Entities, the Company, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained.
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No purchaser of [Securities] [Notes] from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
[SIGNATURE PAGES FOLLOW]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Participating Entities and the
Underwriters in accordance with its terms.
Very truly yours,
XXXXXX BROTHERS ASSET
SECURITIZATION LLC
By:
-------------------------------------
Name:
Title:
S-1
26
-----------------------------------------
By:
-------------------------------------
Name:
Title:
S-2
27
-----------------------------------------
By:
-------------------------------------
Name:
Title:
S-3
28
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
XXXXXX BROTHERS INC.
As Representative
of the Underwriters
By:
--------------------------------
Name:
Title:
S-4
29
SCHEDULE I
Initial Initial Initial
Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3
Asset-Backed Asset-Backed Asset-Backed
Notes Notes Notes
------- ------- -------
$ $ $
$ $ $
============= =========== ===========
Total: $ $ $
Purchase Price: % % %
I-1
