Exhibit 4.1
UNDERWRITING AGREEMENT
AICCO PREMIUM FINANCE MASTER TRUST 2005-1
$500,000,000 CLASS A
SERIES 2005-1 FLOATING RATE ASSET BACKED NOTES
$20,160,000 CLASS B
SERIES 2005-1 FLOATING RATE ASSET BACKED NOTES
$9,410,000 CLASS C
SERIES 2005-1 FLOATING RATE ASSET BACKED NOTES
November 3, 2005
New York, New York
Citigroup Global Markets Inc.,
as the Representative (in such capacity, the "REPRESENTATIVE")
of the several Underwriters named in Schedule A Hereof
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, A.I. RECEIVABLES TRANSFER CORP. (the
"TRANSFEROR"), has authorized the issuance and sale to the Underwriters of
$500,000,000 (aggregate principal amount) Class A Series 2005-1 Floating Rate
Asset Backed Notes (the "SERIES 2005-1 CLASS A NOTES"), $20,160,000 (aggregate
principal amount) Class B Series 2005-1 Floating Rate Asset Backed Notes (the
"SERIES 2005-1 CLASS B NOTES") and $9,410,000 (aggregate principal amount) Class
C Series 2005-1 Floating Rate Asset Backed Notes (the "SERIES 2005-1 CLASS C
NOTES" and together with the Series 2005-1 Class A Notes and Series 2005-1 Class
B Notes, the "NOTES"). The Notes will be issued pursuant to a Base Indenture,
dated as of November 8, 1999, as amended from time to time and as supplemented
by the Series 2005-1 Supplement thereto, to be dated as of November 3, 2005
(together, the "INDENTURE"), between AICCO Premium Finance Master Trust (f/k/a
AIG Credit Premium Finance Master Trust) (the "ISSUER" or the "TRUST") and
JPMorgan Chase Bank, as successor-in-interest to Bank One, National Association,
a national banking association, as indenture trustee (the "TRUSTEE"). The Notes
are more fully described in the Registration Statement (defined below).
Each Note will represent an undivided interest in certain
assets of the AICCO Premium Finance Master Trust 2005-1 (the "TRUST"). The
property of the Trust will include, among other things, receivables (the
"RECEIVABLES") related to loans to insureds to finance commercial property and
casualty insurance premiums and deferred payments to become due from insureds to
finance commercial property and casualty insurance premiums. The Receivables
consist of both Principal Receivables and Finance Charge Receivables.
Each capitalized term used, but not defined herein, shall have
the meaning specified in the Sale and Servicing Agreement, dated as of November
8, 1999, as amended from time to time and as amended by Amendment No. 1 thereto,
dated as of July 30, 2001 (together, the "SALE AND SERVICING AGREEMENT"), among
the Transferor, A.I. Credit Corp., a New Hampshire corporation ("AIC"), AICCO,
Inc., a California corporation ("AICCO I"), AICCO, Inc. (f/k/a Imperial Premium
Finance, Inc.), a Delaware corporation ("AICCO II"), Imperial Premium Finance,
Inc., a California corporation ("IP Finance"), which is now inactive, and
Imperial Premium Funding, Inc., a Delaware corporation ("IP Funding", and
together with each of AIC, AICCO I, AICCO II and IP Finance, each separately and
collectively in such capacity, the "SERVICER") or in the Indenture. The Sale and
Servicing Agreement, the Indenture and the Receivables Purchase Agreement are
each sometimes referred to herein as a "TRANSACTION DOCUMENT."
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
TRANSFEROR. The Transferor, represents and warrants to, and agrees
with, the Underwriters as follows:
(a) The Transferor has filed with the Securities and Exchange
Commission (the "COMMISSION"), on Form S-3, a registration statement
(Registration No. 333-110912) relating to the Notes, including a form of
prospectus supplement pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "ACT"). The Transferor may have filed one or more amendments
thereto, each of which has been furnished to the Representative. The Transferor
will also file with the Commission a prospectus supplement in accordance with
Rule 424(b) under the Act. As filed, the registration statement, as amended, the
form of prospectus supplement, and any prospectuses or prospectus supplements
filed pursuant to Rule 424(b) under the Act ("RULE 424(B)") relating to the
Notes shall, except to the extent that the Representative shall agree in writing
to a modification, be in all substantive respects in the form furnished to you
prior to the Execution Time (defined below) or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond those contained in the latest preliminary prospectus
supplement which has previously been furnished to the Underwriters) as the
Transferor shall have advised the Underwriters, prior to the Execution Time,
will be included or made therein.
For purposes of this Agreement, "EFFECTIVE TIME" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "EFFECTIVE DATE" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "REGISTRATION STATEMENT," and any prospectus
supplement (the "PROSPECTUS SUPPLEMENT") relating to the Notes, as filed with
the Commission pursuant to and in accordance with Rule 424(b) is, together with
the prospectus filed as part of the Registration Statement (such prospectus, in
the form it appears in the Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424(b) being hereinafter
referred to as the "BASE PROSPECTUS"), hereinafter referred to as the
"PROSPECTUS." "EXECUTION TIME" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
(b) (i) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, and, when the Prospectus was first filed
and on the Closing Date, the Prospectus did or will, comply in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission promulgated thereunder (the "RULES AND
REGULATIONS");
(ii) on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and
(iii) on the date of any filing with the Commission pursuant to
Rule 424(b) and on the Closing Date, the Prospectus did not or will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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provided that the Transferor makes no representation or warranty as to the
information contained in
or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with information furnished to the Transferor by the
Underwriters specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (and, in connection therewith, the
Transferor acknowledges that the information set forth under the heading
"Underwriting" relating to the selling concessions and reallowance in the
Prospectus constitutes the only information furnished in writing by the
Underwriters or on behalf of the Underwriters for inclusion in the Registration
Statement or the Prospectus).
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
situation or business prospects of the Transferor, and (ii) the Transferor has
not entered into any transaction or agreement (whether or not in the ordinary
course of business) that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Notes, otherwise
than as set forth or contemplated in the Prospectus.
(d) The Transferor (i) is duly organized, validly existing and
in good standing under the laws of the jurisdiction in which it is organized,
(ii) is qualified to transact business in, and is in good standing under, the
laws of each jurisdiction in which its activities require such qualification,
and (iii) has full power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement, and each Transaction Document to which it shall be a party. The
Issuer has full power, authority and legal right to issue the Notes.
(e) This Agreement has been duly and validly authorized,
executed and delivered by the Transferor.
(f) The Sale and Servicing Agreement has been duly authorized,
executed and delivered by the Transferor, and assuming the due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and binding
obligation of the Transferor enforceable against the Transferor in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Sale and Servicing Agreement will conform in all material respects to
the description thereof contained in the Prospectus. In addition to the
foregoing, the Transferor represents and warrants to the Underwriters that the
Sale and Servicing Agreement has been duly authorized, executed and delivered by
the Servicer, and assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and binding obligation of the Servicer
enforceable against the Servicer in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency and similar laws affecting
creditors rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law).
(g) The Notes have been duly and validly authorized by all
required action of the Transferor, and when duly and validly executed by the
Issuer, authenticated by the Trustee and delivered in accordance with the Sale
and Servicing Agreement, and delivered to and paid for by the Underwriters as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Sale and Servicing Agreement. As of the Closing Date, the Notes
will have been duly and validly executed by the Issuer, and will conform in all
material respects to the descriptions thereof contained in the Prospectus.
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(h) The Receivables Purchase Agreement has been duly authorized,
executed and delivered by the Transferor, and assuming the due authorization,
execution and delivery thereof by the other parties thereto, the Receivables
Purchase Agreement will constitute valid and binding obligations of the
Transferor, enforceable against the Transferor in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law). As of the Closing Date, the Receivables
Purchase Agreement will conform in all material respects to the description
thereof contained in the Prospectus.
(i) The Receivables transferred to the Trustee as of the Closing
Date by the Transferor pursuant to the Sale and Servicing Agreement will conform
in all material respects with the description thereof contained in the
Prospectus.
(j) Neither the transfer of the Receivables to the Trustee by
the Transferor, nor the issuance, sale and delivery of the Notes, nor the
execution or delivery of this Agreement or any Transaction Document by the
Transferor, nor the consummation of any of the transactions herein or therein
contemplated, nor the fulfillment of the terms of the Notes, any Transaction
Document or this Agreement, will result in the breach of any term or provision
of the charter or by-laws of the Transferor or conflict with, result in a
material breach, violation or acceleration of, or constitute a default under,
the terms of any material indenture or other agreement or instrument to which
the Transferor is a party or by which it or its properties is bound or may be
affected or any material statute, order or regulation applicable to the
Transferor of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Transferor or will result in the
creation of any Lien upon any property or assets of the Transferor (other than
as contemplated in any Transaction Document). The Transferor is not a party to,
bound by, or in breach or violation of, any indenture or other agreement or
instrument, or subject to, or in violation of, any statute, order or regulation
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over it, that materially and adversely affects
the ability of it to perform its obligations under this Agreement, any
Transaction Document to which it is a party or the Notes.
(k) There are no charges, investigations, actions, suits, claims
or proceedings affecting the Transferor before or by any court, regulatory body,
administrative agency, governmental body or arbitrator now pending or, to the
best knowledge of the Transferor, threatened that, separately or in the
aggregate, (i) would reasonably be likely to have a material adverse effect on
(x) the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory status or business
prospects of the Transferor or (y) the ability of the Transferor to perform its
obligations under this Agreement, any Transaction Document to which it is a
party or the Notes, (ii) assert the invalidity of this Agreement, any
Transaction Document or the Notes, (iii) seek to prevent the issuance, sale or
delivery of the Notes or any of the transactions contemplated by this Agreement
or any Transaction Document or (iv) seek to affect adversely the federal income
tax or ERISA attributes of the Notes described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of which would result in the imposition
of a Lien on the Receivables, is imposed with respect to the conveyance of the
Receivables by the Transferor pursuant to any Transaction Document, or in
connection with the issuance of the Notes by the Trust, or the holding of such
Receivables by the Trust, or in connection with any of the other transactions
contemplated by this Agreement or any Transaction Document. Any such taxes, fees
and other governmental charges in connection with the execution, delivery and
issuance of the Notes or the execution and delivery of this Agreement or any
Transaction Document have been or will have been paid by the Transferor at or
prior to the Closing Date.
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(m) As of the Closing Date, the representations and warranties
of the Transferor in each Transaction Document to which it is a party
(individually and in the aggregate) will be true and correct in all material
respects.
(n) Except as required under the Securities Act, the Exchange
Act and other applicable securities laws, no consent, approval, authorization,
order, registration or qualification of or with any court or governmental agency
or body is required for the execution, delivery and performance by the
Transferor of, or the compliance by the Transferor with, this Agreement, each
Transaction Document to which it is a party or the Notes or the consummation of
the transactions contemplated hereby or thereby other than (i) those that have
been obtained or made and remain in full force and effect and (ii) without
limitation, the filing of Uniform Commercial Code financing statements with
respect to the Receivables.
(o) PricewaterhouseCoopers LLP, who have audited certain
financial statements of affiliates of the Transferor, are independent public
accountants as required by the Act and the Rules and Regulations.
(p) The Transferor, prior to transfer, will have good and
marketable title to the Receivables being transferred by it to the Trustee or
otherwise pursuant to the Sale and Servicing Agreement or any other Transaction
Document, free and clear of any Liens (other than as contemplated in the Sale
and Servicing Agreement) and will not have assigned to any Person any of its
right, title or interest in such Receivables or the Transaction Documents (other
than as contemplated in the Transaction Documents) or the Notes being issued
pursuant to the Sale and Servicing Agreement; and the Transferor will have the
power and authority to so transfer such Receivables, and, upon the execution and
delivery by the Trustee, on behalf of the Trust, of the Sale and Servicing
Agreement, delivery to the Underwriters of the Notes and payment by the
Underwriters of the purchase price therefor, the Trustee, on behalf of the
Trust, will have good and marketable title to, or a first-priority, perfected
security interest in, such Receivables, and the Underwriters will have good and
marketable title to the Notes, in each case free and clear of any Liens (other
than as contemplated in the Transaction Documents).
(q) The Trust is not, and will not be as a result of the
issuance and sale of the Notes, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 ACT").
2. PURCHASE, SALE, PAYMENT AND DELIVERY OF NOTES. On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth,
the Transferor agrees to sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the
Transferor, on November 3, 2005, or on such other date as shall be
mutually agreed upon by the Transferor and the Underwriters (the
"CLOSING DATE"), the number and type of Notes set forth in Schedule A
opposite the name of such Underwriter. The Series 2005-1 Class A
Notes being purchased by the Underwriters hereunder are to be
purchased at a purchase price equal to 99.725% of the principal
amount thereof; the Series 2005-1 Class B Notes being purchased by
the Underwriters hereunder are to be purchased at a purchase price
equal to 99.675% of the principal amount thereof; and the Series
2005-1 Class C Notes being purchased by the Underwriters hereunder
are to be purchased at a purchase price equal to 99.575% of the
principal amount thereof.
The closing of the sale of the Notes (the "CLOSING") shall be
held at the offices of Weil, Gotshal & Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 9:00 A.M. (E.S.T.) on the Closing Date. Payment of the purchase
price for the Notes being sold and purchased hereunder shall be made on the
Closing Date by wire transfer of federal or other immediately available funds to
an account to be designated one Business Day prior to the Closing Date by the
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Transferor, against delivery of the Notes at the Closing on the Closing Date.
Each of the Notes to be so delivered shall be represented by one or more
definitive Notes registered in the name of Cede & Co. as nominee for The
Depository Trust Company.
3. OFFERING BY UNDERWRITERS. It is understood that, as of
the Effective Date, the Underwriters propose to offer the Notes for
sale to the public as set forth in the Prospectus.
4. CERTAIN AGREEMENTS OF THE TRANSFEROR. The Transferor,
jointly and severally, covenant and agree with the several
Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Notes covered thereby and the terms thereof not otherwise specified in the Base
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as the Transferor shall deem to be
appropriate. The Transferor will transmit the Prospectus, including such
Prospectus Supplement, to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in a filing that complies with all applicable
provisions of Rule 424(b). The Transferor will advise the Underwriters promptly
of any such filing pursuant to Rule 424(b).
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs 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 to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Transferor promptly will advise the
Underwriters thereof and will prepare and file, or cause to be prepared and
filed, with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
right of the Underwriters hereunder.
(c) The Transferor will promptly and from time to time take such
action as any Underwriter may reasonably request to qualify the Notes for
offering and sale under the securities laws of such jurisdictions as such
Underwriter 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 Notes; provided that in
connection therewith Transferor shall not be required to qualify as a foreign
corporation or dealer in securities or to file a general consent to service of
process in any particular jurisdiction.
(d) For a period from the date of this Agreement until the
retirement of the Notes, the Transferor will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the Trustee.
(e) To the extent, if any, that the rating provided with respect
to the Notes by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by the Transferor, the Transferor
shall use its best efforts to furnish such documents and take any such other
actions unless (a) the furnishing of such documents or the taking of any such
action is first required by such Rating Agency after the Execution Time and (b)
doing so would have a material adverse effect upon the Transferor.
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(f) Between the date of this Agreement and the Closing Date, the
Transferor will not, without the prior written consent of the Representative,
directly or indirectly, issue, sell or offer to sell securities similar to the
Notes.
5. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated, the Transferor will pay all
expenses incident to the performance of their obligations under this
Agreement, including (i) the printing of the Prospectus and of each
amendment or supplement thereto, (ii) the preparation of this
Agreement and each Transaction Document, (iii) the preparation,
issuance and delivery of the Notes to the Underwriters, (iv) the fees
and disbursements of the counsel to the Transferor and the fees and
disbursements of the Transferor's accountants, (v) the qualification
of the Notes under securities laws in accordance with the provisions
of Section 4(f), including filing fees in connection with the
preparation of any blue sky and legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Prospectus
and of each amendment or supplement thereto, (vii) the preparation
and filing of the Registration Statement and all amendments thereto,
(viii) the printing and delivery to the Underwriters of copies of any
blue sky or legal investment survey prepared in connection with the
Notes and any supplements thereto, (ix) any fees charged by each
Rating Agency for the rating of the Notes, (x) the fees and expenses,
if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (xi) the reasonable fees
and expenses of the Trustee and its counsel.
6. CONDITIONS OF THE OBLIGATIONS OF EACH UNDERWRITER. The
obligations of each Underwriter to purchase and to pay for the Notes
will be subject to the accuracy of the representations and warranties
of the Transferor set forth herein, to the accuracy of the statements
of officers of the Transferor made pursuant hereto or in connection
herewith, to the performance by the Transferor of the Transferor's
obligations hereunder, and to the following additional conditions
precedent:
(a) The Prospectus and each supplement thereto shall have been
filed (if required) with the Commission in accordance with the Act and the Rules
and Regulations and Section 1 hereof, and, as of the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Underwriters, shall be contemplated by the Commission or by any
authority administering any state securities or "blue sky" laws.
(b) On or prior to the date of this Agreement and on or prior to
the Closing Date, the Underwriters shall have received a letter or letters,
dated as of the date of this Agreement and as of the Closing Date, respectively,
of PricewaterhouseCoopers LLP, certified public accountants, substantially in
the form of the drafts to which the Underwriters have previously agreed and
otherwise in form and substance satisfactory to the Underwriters.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust or the Transferor that, in the judgment of the Underwriters,
materially impairs the market for or investment quality of the Notes or makes it
impractical or inadvisable to market the Notes; (ii) any suspension or
limitation on trading in securities generally on the New York Stock Exchange or
the National Association of Securities Dealers National Market System, or any
setting of minimum prices for trading on such exchange or market system; (iii)
any suspension or limitation of trading of any securities of the Transferor or
any Affiliate of the Transferor on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or State of New York or
other applicable state authorities; or (v) any material adverse change in the
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financial markets of the United States, any outbreak or escalation of
hostilities or armed conflict, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriters, the effect of any such material adverse change, outbreak,
escalation, declaration, calamity, or emergency would make it impractical or
inadvisable to proceed with completion of the sale of and payment for the Notes.
(d) At the Closing Date, the Transferor shall have furnished to
the Representative certificates of an executive officer of the Transferor as to
the accuracy of the representations and warranties of the Transferor herein at
and as of the Closing Date, as to the performance by the Transferor of all of
its obligations hereunder to be performed at or prior to the Closing Date, and
as to such other matters as the Representative may reasonably request.
(e) General Counsel for the Transferor or Weil, Gotshal & Xxxxxx
LLP shall have furnished to the Underwriters one or more written opinions,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, substantially to the effect that:
(i) The Transferor has been duly incorporated and is validly
existing and in good standing under the laws of the jurisdiction in which it is
organized, with full power and authority (corporate and other) to own its
properties and conduct its business, as presently owned and conducted by it, and
to enter into and perform its obligations under this Agreement, the Transaction
Documents to which it is a party and the Notes, and has had at all times the
power, authority and legal right to acquire, own and transfer the Receivables as
contemplated by the Transaction Documents;
(ii) The Transferor (a) is duly qualified to do business and is
in good standing in the jurisdiction in which it is organized, and under
applicable laws, as they are currently interpreted and enforced, has obtained
all necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable or would adversely affect the
ability of the Transferor to perform its obligations under this Agreement, the
Transaction Documents to which it is a party or the Notes and (b) without
limiting the foregoing, has the corporate power and authority to carry on its
business as described in the Prospectus and own and operate its property in
connection therewith;
(iii) This Agreement has been duly authorized, executed and
delivered by the Transferor;
(iv) The Notes have been duly authorized, executed and delivered
by the Transferor, and, when duly authenticated by the Trustee in accordance
with the terms of the Sale and Servicing Agreement and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement, will be
validly issued and outstanding and entitled to the benefits provided by the
Indenture;
(v) Each Transaction Document to which the Transferor is a party
has been duly authorized, executed and delivered by the Transferor and
constitutes the legal, valid and binding agreement of the Transferor,
enforceable against it in accordance with its terms, subject, as to
enforceability, to (A) the effect of bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, and (B) the
application of principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law);
(vi) The Trust is not now, and immediately following the sale of
the Notes pursuant to this Agreement will not be, required to register under the
1940 Act;
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(vii) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution, delivery and
performance by the Transferor of its obligations under this Agreement, any
Transaction Document to which it is a party or the Notes, or (B) the issuance or
sale of the Notes, except such as have been obtained under the Act and as may be
required under state securities or "blue sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters and the filing of
Uniform Commercial Code financing statements with respect to the Receivables;
(viii) Neither the execution and delivery of this Agreement, the
Transaction Documents or the Notes by the Transferor nor the performance by the
Transferor of the transactions therein contemplated nor the fulfillment of the
terms thereof does or will result in any material violation of any statute or
regulation, or, to the best knowledge of such counsel, any order or decree of
any court or governmental authority binding upon the Transferor or its property,
or conflict with, or result in a material breach or violation of any term or
provision of, or result in a material default under any of the terms and
provisions, of its charter or by-laws or any indenture, loan agreement or other
material agreement known to such counsel to which the Transferor is a party or
by which the Transferor is bound;
(ix) To the knowledge of such counsel after due investigation,
there are no legal or governmental proceedings pending to which the Transferor
is a party or to which any property of the Transferor is subject that,
individually or in the aggregate, (i) would have a material adverse effect on
the ability of the Transferor to perform its obligations under this Agreement,
any Transaction Document or the Notes, (ii) assert the invalidity of this
Agreement, any Transaction Document or the Notes, (iii) seek to prevent the
issuance, sale or delivery of the Notes or the transactions contemplated by this
Agreement or any Transaction Document or (iv) seek to affect adversely the
federal income tax or ERISA attributes of the Notes described in the Prospectus;
(x) The Registration Statement and the Prospectus (except for
the financial statements, financial schedules and other financial and operating
data including therein, as to which such counsel expresses no view) comply as to
form with the Act and the Rules and Regulations;
(xi) The Registration Statement is effective under the Act, and
the Prospectus Supplement has been filed with the Commission pursuant to Rule
424(b) thereunder;
(xii) Such counsel has not independently verified the accuracy,
completeness or fairness of the information contained in the Registration
Statement and Prospectus. However, based upon discussion with the Transferor,
its accountants and others, no facts have come to the attention of such counsel
that cause it to believe that the Registration Statement, as of the Effective
Date (except for the financial statements, financial schedules and other
financial and statistical data included therein as to which such counsel
expresses no view), contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus (as amended
on or prior to the Closing Date) as of its date and at the Closing Date (except
for the financial statements, financial schedules, and other financial and
statistical data included therein as to which such counsel expresses no view)
contained or contains any untrue statement of a material fact or omitted or
omits 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.
(f) Weil, Gotshal & Xxxxxx LLP, special UCC counsel for the
Transferor, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, with respect to certain matters relating to
9
the transfer of the Receivables to the Trust, with respect to the perfection of
the Trust's interest in the Receivables and with respect to other related
matters.
(g) Weil, Gotshal & Xxxxxx LLP, special tax counsel for the
Transferor, shall have furnished to the Underwriters a written opinion,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that the Notes will be treated
as indebtedness and the Trust will not be an association or publicly traded
partnership taxable as a corporation for federal income tax purposes.
(h) The Underwriters shall have received from Weil, Gotshal &
Xxxxxx LLP, counsel to the Underwriters, a written opinion, dated the Closing
Date, with respect to such matters as the Representative may require (and the
Transferor shall furnish to such counsel all documents requested for the purpose
of enabling it to pass upon such matters).
(i) Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Trustee,
shall have furnished to the Underwriters a written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Underwriters, substantially to the effect that:
(i) The Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws of the State of
New York.
(ii) The Trustee has all requisite corporate power and authority
to execute and deliver, and to perform its obligations under each Transaction
Document to which it is a party and to carry out the transactions contemplated
by such Transaction Documents.
(iii) The execution and delivery by the Trustee of each
Transaction Document to which the Trustee is a party and the performance by the
Trustee of its obligations thereunder do not conflict with or result in a
violation of the charter or by-laws of the Trustee.
(iv) Each Transaction Document to which the Trustee is a party
(A) has been duly authorized, executed and delivered by the Trustee and (B)
assuming the due execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, subject as to enforceability
to (x) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or affecting the
rights and remedies of creditors generally and (y) the application of principles
of equity (regardless of whether considered and applied in a proceeding at law
or in equity).
(v) The Notes have been duly authenticated by the Trustee
pursuant to the Sale and Servicing Agreement.
(j) [Reserved.]
(k) [Reserved.]
(l) The Underwriters shall have received evidence satisfactory
to them that, on or before the Closing Date, UCC-1 financing statements have
been filed in the appropriate filing offices of the States of New York,
Delaware, California and New Hampshire and such other jurisdictions as counsel
to the Transferor deems appropriate to reflect the interest of the Trust in the
Receivables.
(m) The Series 2005-1 Class A Notes shall have been rated "AAA"
by Standard & Poor's Ratings Services or "AAA" by Xxxxx'x Investors Service,
Inc., the Series 2005-1 Class B Notes shall have been rated "A" by Standard &
10
Poor's Ratings Services or rated "A1" by Xxxxx'x Investors Service, Inc. and the
Series 2005-1 Class C Notes shall have been rated "BBB" by Standard & Poor's
Ratings Services or rated "Baa2" by Xxxxx'x Investors Service, Inc. on the
Closing Date, and letters to such effect dated the Closing Date shall have been
received from each Rating Agency.
(n) The Underwriters shall have received all written opinions
required by Standard & Poor's Ratings Services and Xxxxx'x Investors Service,
Inc., addressed to the Underwriters and dated the Closing Date.
(o) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters, and the Underwriters
shall have received such information, certificates and documents as any of them
may reasonably request.
7. INDEMNIFICATION. The Transferor agrees to indemnify and
hold harmless each Underwriter, each Person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act, and any
director, officer or employee of any Underwriter or any such Person,
as follows:
(a) (i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of (A) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (B) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, unless, in either case, such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with information furnished to the Transferor by
the Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
(and, in connection therewith, the Transferor acknowledges that the information
set forth under the heading "Underwriting" relating to selling concessions and
reallowance in the Prospectus constitutes the only information furnished in
writing by the Underwriters or on behalf of the Underwriters for inclusion in
the Registration Statement or the Prospectus); provided that, as to any
preliminary prospectus, this indemnity agreement shall not inure to the benefit
of any Underwriter, any Person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act, or any director, officer or employee of any
Underwriter or any such Person on account of any loss, liability, claim, damage
or expense arising from the sale of any Note to any Person by such Underwriter
if such Underwriter failed to send or give a copy of the final Prospectus and
Prospectus Supplement transmitted to the Commission pursuant to Section 4(a) of
this Agreement to such Person within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such preliminary prospectus was
corrected in the final Prospectus unless such failure resulted from the failure
by the Transferor to comply with Section 4(e) of this Agreement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental agency, or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission; and
(iii) against any and all expense whatsoever (including, without
limitation, the fees and disbursements of counsel chosen by such Underwriters or
Persons) reasonably incurred in investigating, preparing or defending against
11
any litigation or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not indemnified by the Transferor
pursuant to subparagraphs (i) or (ii) above.
The indemnity agreement provided for in this subsection 7(a) will be in addition
to any liability that the Transferor may otherwise have.
(b) Each Underwriter, severally, agrees to indemnify and hold
harmless the Transferor, each of the Transferor's directors, each of the
Transferor's officers who signed the Registration Statement, and each Person, if
any, who controls the Transferor within the meaning of Section 15 of the Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection 7(a), but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Transferor by the Underwriters expressly for use in
the Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto). The Transferor acknowledge that the
information set forth under the heading "Underwriting" relating to selling
concessions and reallowance in the Prospectus constitutes the only information
furnished in writing by the Underwriters or on behalf of the Underwriters for
inclusion in the Registration Statement or the Prospectus. The indemnity
agreement provided for in this subsection 7(b) will be in addition to any
liability which each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 7 except to the extent it has been
materially prejudiced by such failure; and provided 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 7. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party. After notice from an
indemnifying party to such indemnified party of its election to assume the
defense of such claim or action, such indemnifying party shall not be liable to
such indemnified party under this Section 7 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 that any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to such indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) such indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to such
indemnified party, in which case, if such indemnified party notifies such
indemnifying party in writing that it elects to employ separate counsel at the
expense of such indemnifying party, such indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
(it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
12
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all indemnified parties, which firm shall be designated in writing
by the Representative, if the indemnified parties under this Section 7 consist
of any Underwriter or any of their respective officers, employees or controlling
persons, or by the Transferor, if the indemnified parties under this Section 7
consist of a Transferor or any of the Transferor's directors, officers,
employees or controlling persons). Each indemnified party shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suite or proceeding, or (ii) be liable for any settlement
of any claim, action, suit or proceeding effected without its prior written
consent (which consent shall not be unreasonably withheld).
8. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreements provided for in Section 7 are for any reason held to be
unenforceable or insufficient by the indemnified parties, although
applicable in accordance with its terms, the Transferor, on the one
hand, and the Underwriters, on the other hand, shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreements incurred by the
Transferor and one or more of the Underwriters in such proportions
that the Underwriters are responsible for that portion represented by
the underwriting compensation earned by them bears to the initial
public offering price or prices and the Transferor shall be
responsible for the balance; provided, however, that 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 Transferor and
the Underwriters each agree that it would not be just or equitable if
the amount of such contribution were determined by pro rata or per
capita allocation. For purposes of this Section, each Person, if any,
who controls the Underwriters within the meaning of Section 15 of the
Act shall have the same rights to contribution as the Underwriters
and each director of the Transferor, such officer of the Transferor
who signed the Registration statement, and each Person, if any, who
controls the Transferor within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Transferor.
9. SURVIVAL. Each party hereto agrees that the respective
representations, warranties and agreements made by it herein and in
any certificate or other instrument delivered pursuant hereto shall
be deemed to be relied upon, in the case of the Transferor, by each
Underwriter and, in the case of each Underwriter, by the Transferor,
notwithstanding any investigation heretofore or hereafter made by or
on behalf of the Transferor or the Underwriters, and that the
respective representations, warranties and agreements (including
without limitation the indemnity and contribution agreement) made by
each party hereto herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Notes.
10. TERMINATION. This Agreement may be terminated in the
sole discretion of the Underwriters by notice to the Transferor given
at or prior to the Closing Date in the event that the Transferor
shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto. Termination of this Agreement pursuant
to this Section 10 shall be without liability of any party to any
other party except (i) as provided in Sections 5, 7 and 8 hereof and
(ii) if this Agreement is terminated by the Representative in
accordance with any of the provisions of Xxxxxxx 0(x), (x), (x), (x),
(x), (x), (x), (x), (x), (x), (x), (x) or (o), the Transferor will
reimburse the Underwriters for all of their out-of-pocket expenses,
13
including the reasonable fees and disbursements of counsel to the
Underwriters.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters shall fail on the Closing Date to purchase
the Notes which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the Representative shall have
the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) If the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Notes, each of the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) If the aggregate amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Notes, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Transferor shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. NOTICES. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered, sent by overnight courier or mailed by
registered mail, postage prepaid and return receipt requested, or
transmitted by telecopier with transmission confirmed, if to (a) the
Underwriters, addressed to Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such
other address as the Representative may designate in writing to the
Transferor, or (b) A.I. Receivables Transfer Corp., addressed to A.I.
Credit Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13. SUCCESSORS. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors and assigns. Nothing expressed herein is intended or shall
be construed to give any Person other than the Persons referred to in
the preceding sentence any legal or equitable right, remedy or claim
under or in respect of this Agreement.
14. SEVERABILITY OF PROVISIONS. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to
be void or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof.
15. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect
to the matters and transactions contemplated hereby and supersedes
14
all prior agreements and understandings whatsoever relating to such
matters and transactions.
16. AMENDMENT. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
17. HEADINGS. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect
the meaning hereof.
18. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of
which shall together constitute one instrument.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
20. AIC OBLIGATIONS. AIC agrees with each Underwriter, for
the sole and exclusive benefit of such Underwriter and each person
who controls an Underwriter within the meaning of either the Act or
the Exchange Act and not for the benefit of any assignee thereof or
any other person or persons dealing with such Underwriter, to
indemnify and hold harmless each Underwriter and each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act against any failure by the Transferor to perform any of
its obligations under Section 7 of this Agreement. AIC agrees that
there are no conditions precedent to the obligations of AIC hereunder
other than written demand to the Transferor to perform its
obligations under this Section 20.
21. NO FIDUCIARY DUTY. The Transferor hereby acknowledges
that (a) the Representative is acting as principal and not as an
agent or fiduciary of the Transferor and (b) its engagement of the
Representative in connection with the offering of the Notes is as an
independent contractor and not in any other capacity. Furthermore,
the Transferor agrees that it is solely responsible for making its
own judgments in connection with the offering of the Notes
(irrespective of whether the Representative has advised or is
currently advising the Transferor on related or other matters).
(signature page follows)
15
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 be a binding agreement among the undersigned in accordance with its
terms.
A.I. RECEIVABLES TRANSFER CORP.,
as Transferor
By:
------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby agreed to as of the date first
above written.
Citigroup Global Markets Inc.,
for itself and as the representative of the
several Underwriters named in Schedule A hereto
By:
-------------------------------------
Name:
Title:
AGREED TO WITH RESPECT TO SECTION 20 HEREOF:
A.I. CREDIT CORP.
By:
-------------------------------------
Name:
Title:
[Signature page - Underwriting Agreement Series 2005-1]
SCHEDULE A
Aggregate Principal Amount of
the Series 2005-1 Class A
Underwriters of the Series 2005-1 Class A Notes Notes
----------------------------------------------- ------------------------------
Citigroup Global Markets Inc. $125,000,000
ABN AMRO Incorporated $125,000,000
Banc of America Securities LLC $125,000,000
X.X. Xxxxxx Securities $125,000,000
TOTAL $500,000,000
============
Aggregate Principal Amount of
the Series 2005-1 Class B
Underwriter of the Series 2005-1 Class B Notes Notes
----------------------------------------------- ------------------------------
Citigroup Global Markets Inc. $20,160,000
===========
Aggregate Principal Amount of
Underwriter of the Series 2005-1 Class C Notes the Series 2005-1 Class C Notes
----------------------------------------------- -------------------------------
Citigroup Global Markets Inc. $9,410,000
==========
