Exhibit 1.2
USAA AUTO GRANTOR TRUST 200__-[ ]
Asset Backed Certificates
USAA ACCEPTANCE, LLC
(DEPOSITOR)
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
FORM OF UNDERWRITING AGREEMENT
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_________, ____
[Name of Representative],
as Representative of the
Several Underwriters named
on Schedule I hereto,
_________________
_________________
Dear Sirs:
USAA Acceptance, LLC, A Delaware limited liability company (the
"Depositor"), proposes to form a trust, USAA Auto Grantor Trust 200__-[ ] (the
"Issuer"), pursuant to a Pooling and Servicing Agreement (the "Pooling
Agreement") to be dated as of _________, ___ between the Depositor, USAA
Federal Savings Bank, a federally charted savings association (the "Bank"), as
seller and servicer (in such capacities, the "Seller" and the "Servicer",
respectively), and ___________, as trustee and collateral agent (the
"Trustee"). The Issuer will issue (i) $_________ principal balance of its
Class A ___% Asset Backed Certificates (the "Class A Certificates"), and (ii)
$_________ principal balance 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 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-[ ]) 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).
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(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 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
a federally chartered savings association and is a member of the
Federal Home Loan Bank System. The Bank is in good standing with the
Office of Thrift Supervision and has the power and authority
(corporate and other) to own, lease and operate its properties and
to conduct its business as such properties are presently owned,
leased and operated and as such business is presently conducted, and
had at all relevant times, and now has, the power, authority and
legal right to own and sell the Receivables.
(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 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,
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delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby.
(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) Neither the Issuer, the Depositor, nor 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 of 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.
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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.
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 [Name of 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
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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 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
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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.
(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
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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 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.
(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) Xxxxxx Xxxx Xxxxxxx, Senior Vice President and General
Counsel 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) _____________, 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) _____________, 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
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each case in form and substance reasonably satisfactory to the
Representative and its counsel.
(i) _____________, special Texas 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 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.
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(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 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
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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.
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.
11
(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 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
12
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 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
13
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 9
for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, an indemnified
party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for
the indemnified party will be at the expense of such indemnified
party unless (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
14
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
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
15
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 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
_______________________, 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;
16
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.
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,
USAA FEDERAL SAVINGS BANK
By
----------------------------
Name:
Title:
USAA ACCEPTANCE, LLC
By
----------------------------
Name:
Title:
Accepted:
[Name of Representative],
For Itself and as Representative
of the Several Underwriters
By
---------------------------------
Authorized Signatory
18
SCHEDULE I
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Principal Amount of Principal Amount of
Underwriters Class A Certificates Class B Certificates
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[Name of Representative] $ $
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19
