Exhibit 1.2
USAA AUTO GRANTOR TRUST 20__-[ ]
Asset Backed Certificates
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
USAA ACCEPTANCE, LLC
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
____________, 20__
[Underwriter[s]]
[Address]
[As Joint Global Coordinators,
Bookrunners and Representatives of the
Several Underwriters named
on Schedule I hereto]
Dear Ladies and Gentlemen:
USAA Acceptance, LLC, a Delaware limited liability company (the
"Depositor"), proposes to form a trust, USAA Auto Grantor Trust 20__-[ ] (the
"Issuer"), pursuant to a Pooling and Servicing Agreement (the "Pooling
Agreement") to be dated as of [ ], 20__, among 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 [
], 20__ (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.
At or prior to the time when sales to purchasers of the Certificates were
first made to investors by the several Underwriters named in Schedule I hereto
(the "Underwriters"), which was approximately [ ] a.m. on [ ], 20__ (the "Time
of Sale"), the Depositor had prepared the following information (collectively,
the "Time of Sale Information"): the Preliminary Prospectus Supplement dated [
], 20__ to the Prospectus (as defined below) (together, along with information
referred to under the caption "Static Pool Data" therein regardless of whether
it is deemed a part of the Registration Statement or Prospectus, the
"Preliminary Prospectus"). If, subsequent to the Time of Sale and prior to the
Closing Date (as defined below), such information included an untrue statement
of material fact or omitted 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, and as a result investors in the Certificates
may terminate their old "Contracts of Sale" (within the meaning of Rule 159
under the Securities Act of 1933, as amended (the "Securities Act")) for any
Certificates and the Underwriters enter into new Contracts of Sale with
investors in the Certificates, then "Time of Sale Information" will refer to
the information conveyed to investors at the time of entry into the first such
new Contract of Sale, in an amended Preliminary Prospectus approved by the
Depositor and the Representatives that corrects such material misstatements or
omissions (a "Corrected Prospectus") and "Time of Sale" will refer to the time
and date on which such new Contracts of Sale were entered into.
This is to confirm the agreement concerning the purchase of the
Certificates from the Bank by the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND THE
BANK. Each of the Depositor and the Bank (each, a "Representing Party" and,
collectively, the "Representing Parties") makes the representations and
warranties set forth below. To the extent that a representation or warranty
specifically relates to the Depositor, the representation or warranty solely
with respect to the Depositor is only made by the Depositor and to the extent
a representation or warranty specifically relates to the Bank, the
representation or warranty solely with respect to the Bank is only made by the
Bank.
(a) A registration statement on Form S-3 (No. 333-131356) relating
to the Certificates has been filed by Depositor with the Securities
and Exchange Commission (the "Commission") and has become effective
and is still effective as of the date hereof under the Securities Act.
The Depositor proposes to file with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act (the "Rules and Regulations") a prospectus supplement
dated [ ], 20__ (together with information referred to under the
caption "Static Pool Data" therein regardless of whether it is deemed
a part of the Registration Statement or Prospectus, the "Prospectus
Supplement") to the prospectus dated [ ], 20__, relating to the
Certificates and the method of distribution thereof. Copies of such
registration statement, any amendment or supplement thereto, such
prospectus, the Preliminary 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
2
conditions to the use of a registration statement on Form S-3 under
the Securities Act have been satisfied. The Depositor has filed the
Preliminary Prospectus and it has done so within the applicable period
of time required under the Securities Act and the Rules and
Regulations.
(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 and on 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 of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder. The Registration Statement, as of the
applicable effective date as to each part of the Registration
Statement pursuant to Rule 430B(f)(2) and any amendment thereto, did
not include any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Preliminary
Prospectus, as of its date and as of the Time of Sale, did not contain
an untrue statement of a material fact and did not 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 Prospectus, as of the date of the Prospectus
Supplement and as of the Closing Date, does not and will not contain
any untrue statement of a material fact and did not and will 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. The representations and warranties in the three
preceding sentences do not apply to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with the Underwriters' Information (as defined herein).
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain 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; provided that the Depositor
makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the
Underwriters' Information.
(d) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,
and the rules and regulations thereunder; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the Rules and Regulations.
(e) 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
3
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.
(f) The Depositor has been duly organized and is validly existing
as a limited liability company under the laws of the State of
Delaware, and all filings required at the date hereof under the
Delaware Limited Liability Company Act (6 Del. C. ss.18-101, et seq.)
(the "LLC Act") with respect to the due formation and valid existence
of the Depositor as a limited liability company have been made; and
the Depositor is duly qualified or registered as a foreign limited
liability company to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of ownership of property or the conduct of business,
and the failure to so qualify or register would have a materially
adverse effect on the Depositor and now has the power, authority and
legal right to acquire, own and sell the Receivables.
(g) The representations and warranties of the Depositor in
Sections 5.1 and 10.1 of the Pooling Agreement will be true and
correct as of the Closing Date.
(h) The representations and warranties of the Servicer in Section
11.1 of the Pooling Agreement will be true and correct as of the
Closing Date.
(i) 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.
(j) This Agreement has been duly executed and delivered by the
Representing Parties.
(k) 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.
(l) The execution, delivery and performance of this Agreement and
the consummation by each of the Representing Parties 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
4
registration of the Certificates under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of
the Certificates by the Underwriters, no permit, consent, approval of,
or declaration to or filing with, any governmental authority is
required in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated
hereby.
(m) 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, as applicable, of
its obligations under, or the validity or enforceability of, the
Certificates or this Agreement, or (iv) that may adversely affect the
federal or state income, excise, franchise or similar tax attributes
of the Certificates.
(n) 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 and (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's 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.
(o) None of the Issuer, the Depositor or the Bank is or upon
issuance of the Certificates and the application of the proceeds
therefrom will be 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.
(p) None of the Depositor, the Bank or anyone acting on its behalf
has taken any action that would require qualification of the Pooling
Agreement under the Trust Indenture Act.
5
(q) As of the Time of Sale, the Depositor was not and as of the
Closing Date is not, an "ineligible issuer," as defined in Rule 405
under the Securities Act.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, the Depositor agrees to cause to be issued by the
Issuer and the Depositor agrees 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, [ ]%.
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.
Delivery of and payment for the Certificates shall be made at the office
of Sidley Austin LLP, New York, New York, or at such other place as shall be
agreed upon by [ ] and [ ], as Representatives of the Several Underwriters
named herein (the "Representatives"), and the Depositor, at [ ] a.m., New York
time, on [ ], 20__, or at such other date or time, not later than five full
business days thereafter, as shall be agreed upon by the Representatives and
the Depositor (such date and time being referred to herein as the "Closing
Date"). On the Closing Date, the Depositor shall deliver or cause to be
delivered to the Representatives for the account of each Underwriter the
Certificates 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 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.
3. FURTHER AGREEMENTS OF THE DEPOSITOR AND THE BANK. (a) The Depositor
agrees with each of the several Underwriters:
(i) 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 Representatives of such
timely filing.
(ii) During any period in which a prospectus relating to the
Certificates is required to be delivered under the Securities Act:
to advise the Representatives 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 Representatives; to advise the Representatives
promptly of (A) the effectiveness of any post-effective amendment
to the Registration Statement, (B) any request by the Commission
for
6
any amendment of the Registration Statement or the Prospectus or
for any additional information, (C) 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, (D) the issuance by the Commission of any order
preventing or suspending the use of any prospectus relating to the
Certificates or the initiation or threatening of any proceedings
for that purpose and (E) 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.
(iii) 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
Representatives 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.
(iv) To furnish promptly to each of the Representatives 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 (a)(iii) of this Section 4, to deliver
promptly without charge to the Representatives such number of the
following documents as the Representatives may from time to time
reasonably request: (A) 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 each of the Basic Documents) and (B) any preliminary
prospectus supplement, including the Preliminary Prospectus, the
Prospectus and any amendment or supplement thereto.
(v) 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
7
the Representatives, be required by the Securities Act or
requested by the Commission.
(vi) 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 (A) 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 (B) from time to time, such other information
concerning the Depositor filed with any government or regulatory
authority or national securities exchange which is otherwise
publicly available as the Representatives may reasonably request
and such other information concerning the Issuer as the
Representatives may reasonably request.
(vii) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Certificates
for offering and sale under the securities laws of such
jurisdictions as the Representatives 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 the Depositor shall not be
required to qualify to do business or to file a general consent to
service of process in any jurisdiction.
(viii) 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 Representatives.
(ix) 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.
(x) To cause the Trust to make generally available to
Certificate-holders and to the Underwriters as soon as practicable
an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring
after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Commission promulgated thereunder.
(xi) To file with the Commission the final terms of the
Certificates pursuant to Rule 433(d)(5) of the Securities Act.
8
(b) The Depositor and the Bank agree with each of the several
Underwriters that to the extent, if any, that the ratings provided
with respect to the Certificates by [Xxxxx'x Investors Service, Inc.
("Moody's")] and [Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. ("S&P")] 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.
4. WRITTEN COMMUNICATIONS.
(a) It is understood that, subject to the terms and conditions
hereof, the Underwriters propose to offer the Certificates for sale to
the public as set forth in the Prospectus.
(b) The following terms have the specified meanings for purposes of
this Agreement:
(i) "Free Writing Prospectus" means and includes any
information relating to the Certificates disseminated by the
Depositor or any Underwriter that constitutes a "free writing
prospectus" within the meaning of Rule 405 under the Securities
Act.
(ii) "Issuer Information" means (1) the information contained
in any Underwriter Free Writing Prospectus which information is
also included in the Preliminary Prospectus (other than
Underwriter Information) and (2) information in the Preliminary
Prospectus that is used to calculate or create any Derived
Information.
(iii) "Derived Information" means such written information
regarding the Certificates as is disseminated by any Underwriter
to a potential investor, which information is neither (A) Issuer
Information nor (B) contained in (1) the Registration Statement,
the Preliminary Prospectus, the Prospectus Supplement, the
Prospectus or any amendment or supplement to any of them, taking
into account information incorporated therein by reference (other
than information incorporated by reference from any information
regarding the Certificates that is disseminated by any Underwriter
to a potential investor) or (2) any computer tape in respect of
the Certificates or the related receivables furnished by the
Depositor to any Underwriter.
(c) The Depositor will not disseminate to any potential investor
any information relating to the Certificates that constitutes a
"written communication" within the meaning of Rule 405 under the
Securities Act, other than the Time of Sale Information and the
Prospectus, unless the Depositor has obtained the prior consent of the
Representatives (which consent will not be unreasonably withheld).
(d) Neither the Depositor nor any Underwriter shall disseminate or
file with the Commission any information relating to the Certificates
in reliance on Rule 167 or 426 under the Securities Act, nor shall the
Depositor or any Underwriter disseminate any Underwriter Free Writing
Prospectus (as defined below) "in a
9
manner reasonably designed to lead to its broad unrestricted
dissemination" within the meaning of Rule 433(d) under the Securities
Act.
(e) Each Underwriter Free Writing Prospectus shall bear the
following legend, or a substantially similar legend that complies with
Rule 433 under the Securities Act:
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information
about the depositor, the issuing trust, and this offering. You may
get these documents for free by visiting XXXXX on the SEC Web site
at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or
any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling toll-free
1-[_________].
(f) In the event any Representing Party becomes aware that, as of
the Time of Sale, any Time of Sale Information contains or contained
any untrue statement of material fact or omits or omitted to state a
material fact necessary in order to make the statements contained
therein (when read in conjunction with all Time of Sale Information)
in light of the circumstances under which they were made, not
misleading (a "Defective Prospectus"), such Representing Party shall
promptly notify the Representatives of such untrue statement or
omission no later than one business day after discovery and the
Depositor shall, if requested by the Representatives, prepare and
deliver to the Underwriters a Corrected Prospectus.
(g) Each Underwriter represents, warrants, covenants and agrees
with the Depositor that:
(i) Other than the Preliminary Prospectus and the Prospectus,
it has not made, used, prepared, authorized, approved or referred
to and will not prepare, make, use, authorize, approve or refer to
any "written communication" (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Certificates, including but not limited to
any "ABS informational and computational materials" as defined in
Item 1101(a) of Regulation AB under the Securities Act; [provided,
however, that (i) each Underwriter may prepare and convey one or
more "written communications" (as defined in Rule 405 under the
Securities Act) containing no more than the following: (1)
information included in the Preliminary Prospectus with the
consent of the Depositor (except as provided in clauses (2)
through (4) below), (2) information relating to the class, size,
rating, price, CUSIPS, coupon, yield, spread, benchmark, status
and/or legal maturity date of the Certificates, the weighted
average life, expected final payment date, the trade date and
payment window of one or more classes of Certificates, (3) the
eligibility of the Certificates to be purchased by ERISA plans and
(4) a column or other entry showing the status of the
subscriptions for the Certificates (both for the issuance
10
as a whole and for each Underwriter's retention) and/or expected
pricing parameters of the Certificates (each such written
communication, an "Underwriter Free Writing Prospectus"); (ii)
unless otherwise consented to by the Depositor, no such
Underwriter Free Writing Prospectus shall be conveyed if, as a
result of such conveyance, the Depositor or the Issuer shall be
required to make any registration or other filing solely as a
result of such Underwriter Free Writing Prospectus pursuant to
Rule 433(d) under the Securities Act other than the filing of the
final terms of the Certificates pursuant to Rule 433(d)(5) of the
Securities Act; and (iii) each Underwriter will be permitted to
provide confirmations of sale.]
(ii) In disseminating information to prospective investors, it
has complied and will continue to comply fully with the Rules and
Regulations, including but not limited to Rules 164 and 433 under
the Securities Act and the requirements thereunder for filing and
retention of Free Writing Prospectuses, including retaining any
Underwriter Free Writing Prospectuses they have used but which are
not required to be filed for the required period.
(iii) Prior to entering into any Contract of Sale, it shall
convey the Time of Sale Information to the prospective investor.
The Underwriter shall maintain sufficient records to document its
conveyance of the Time of Sale Information to the potential
investor prior to the formation of the related Contract of Sale
and shall maintain such records as required by the Rules and
Regulations.
(iv) If a Defective Prospectus has been corrected with a
Corrected Prospectus, it shall (A) deliver the Corrected
Prospectus to each investor with whom it entered into a Contract
of Sale and that received the Defective Prospectus from it prior
to entering into a new Contract of Sale with such investor and (B)
provide to such investor (w) adequate disclosure of the
contractual arrangement, (x) adequate disclosure of such
investor's rights under its existing Contract of Sale, (y)
adequate disclosure of the new information in the Corrected
Prospectus and (z) a meaningful ability to elect to terminate or
not terminate the existing Contract of Sale and to elect to enter
into or not enter into a new agreement to purchase the
Certificates.
(v) Immediately following the use of any Underwriter Free
Writing Prospectus containing any "issuer information" as defined
in Rule 433(h)(1) and footnote 271 of the Commission's Securities
Offering Reform Release No. 83-8591 of the Securities Act it has
provided the Depositor a copy of such Underwriter Free Writing
Prospectus, unless such "issuer information" consists of the terms
of the Certificates, and such information is not the final
information to be included in the Prospectus Supplement.
(h) In the event that any Underwriter shall incur any costs to any
investor in connection with the reformation of the Contract of Sale
with such investor that received a Defective Prospectus, the
Representing Parties jointly and severally agree to reimburse such
Underwriter for such costs.
11
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant
Member State"), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the
"Relevant Implementation Date"), each Underwriter has not made and
will not make an offer of Certificates to the public in that Relevant
Member State prior to the publication of a prospectus in relation to
Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Certificates to the
public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For purposes of this Section 4(i), the expression an "offer of Certificates to
the public" in relation to any notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Certificates to be offered so as to enable an
investor to decide to purchase or subscribe the Certificates, as the same may
be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State, and the expression "Prospectus Directive"
means Directive 2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
(j) Each Underwriter is a person whose ordinary activities involve
it in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business and (ii) it has
not offered or sold and will not offer or sell the Certificates other
than to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or who it is reasonable to
expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses where the
issue of the Certificates would otherwise constitute a contravention
of Section 19 of the Financial Services and Markets Act (the "FSMA")
by the issuing entity;
(k) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA)
12
received by it in connection with the issue or sale of the
Certificates in circumstances in which Section 21(1) of the FSMA does
not apply to the Issuer; and
(l) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it
in relation to the Certificates in, from or otherwise involving the
United Kingdom.
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 Representatives; and the
Depositor shall have filed the Prospectus Supplement and the
Preliminary Prospectus and the final terms of the Certificates with
the Commission pursuant to Rule 424(b) and Rule 433 of the Securities
Act, as applicable, within the time period prescribed by such rules.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
Certificates, each of the Basic Documents, 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 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) [Reserved].
(e) [Reserved].
(f) [Reserved].
(g) The Representatives shall have received evidence satisfactory
to them and their counsel that within ten days of the Closing Date,
UCC-1 financing
13
statements required to be filed on or prior to the Closing Date
pursuant to the Basic Documents have been filed.
(h) Xxxxxxx X. Broker, Esq., Vice President and Banking Counsel of
the Bank, shall have furnished to the Representatives his written
opinion, addressed to the Underwriters and dated the Closing Date,
regarding the due organization and power and authority of the Bank,
the due authorization, execution and delivery by the Bank of the Basic
Documents to which it is a party, 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 Representatives and
their counsel.
(i) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Depositor, shall have furnished to the Representatives 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 Basic Documents
by the Depositor, in each case, in form and substance reasonably
satisfactory to the Representatives and their counsel.
(j) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Issuer, shall have furnished to the Representatives 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, (ii) the enforceability of the Pooling Agreement, (iii) other
general Delaware law matters with respect to the Issuer, including,
without limitation, the due authorization, execution and delivery of
the Basic Documents by the Issuer and the due authorization and
issuance of the Certificates and (iv) the perfection and priority of
the security interest created by the Pooling Agreement, in each case,
in form and substance reasonably satisfactory to the Representatives
and their counsel.
(k) Sidley Austin LLP shall have furnished to the Representatives
their written opinion, addressed to the Underwriters and dated the
Closing Date, regarding (i) the enforceability of the Basic Documents
(other than the Note Depository Agreement), (ii) the validity of the
security interests created thereby, (iii) the due issuance and
enforceability of the Certificates, (iv) no violations of law, (v)
compliance with applicable federal securities laws, (vi) exemption of
the Bank, the Depositor and the Issuer from registration as an
investment company under the Investment Company Act of 1940, as
amended, (vii) the conformity in all material respects of each of the
Basic Documents to the description thereof contained in the
Registration Statement, the Prospectus and the Time of Sale
Information, (viii) the Registration Statement, the Preliminary
Prospectus and the Prospectus appear on their face to be responsive in
all material respects to the applicable Rules and Regulations and (ix)
negative assurances concerning the Prospectus and the Time of Sale
Information, in each case in form and substance reasonably
satisfactory to the Representatives and their counsel.
14
(l) Gardere Xxxxx Xxxxxx LLP, special Texas counsel to the
Depositor, shall have furnished to the Representatives their written
opinion, addressed to the Underwriters and dated the Closing Date,
regarding the perfection and priority of the security interest created
by the Receivables Purchase Agreement, in form and substance
reasonably satisfactory to the Representatives and their counsel.
(m) Sidley Austin LLP shall have furnished to the Representatives
their written opinion, addressed to the Underwriters and dated the
Closing Date, with respect to certain matters relating to the transfer
of the Receivables by the Seller to the Depositor, in form and
substance reasonably satisfactory to the Representatives and their
counsel.
(n) Sidley Austin LLP shall have furnished to the Representatives
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 traded 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 Preliminary Prospectus and 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
Representatives and their counsel.
(o) The Representatives shall have received from [ ], counsel for
the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Representatives may require, and
the Bank and the Depositor shall have furnished to such counsel such
documents as they reasonably request for enabling them to pass upon
such matters.
(p) [Reserved].
(q) [ ], counsel to the Trustee, shall have furnished to the
Representatives 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 Basic Documents to which it is a
party, no conflicts or violations of organizational documents,
contracts or law and other related matters, in form and substance
reasonably satisfactory to the Representatives and their counsel.
(r) The Representatives 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
Representatives verifying the accuracy of such financial and
statistical data contained in the Prospectus (including any static
pool data included therein pursuant to Item 1105 of Regulation AB
under the Securities Act) as the Representatives shall deem advisable.
In addition, if any amendment or
15
supplement to the Prospectus made after the date hereof contains
financial or statistical data, the Representatives shall have received
a letter dated the Closing Date confirming the Procedures Letter and
providing additional comfort on such new data.
(s) The Representatives shall have received a certificate, dated
the Closing Date, of any of the Chairman of the Board, the President,
any Senior Vice President, any Vice President or the chief financial
officer of each of the Bank and the Depositor stating that (i) the
representations and warranties of the Bank or the Depositor, as
applicable, contained in this Agreement and the Basic Documents to
which it is a party are true and correct on and as of the Closing
Date, (ii) the Bank or the Depositor, as applicable, has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and under such agreements at or prior
to the Closing Date, (iii) 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 (iv) since [ ],
20___, there has been no material adverse change in the financial
position or results of operations of the Bank or the Depositor, as
applicable, 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 Depositor, as applicable, or the Issuer except as set forth in
or contemplated by the Registration Statement and the Prospectus.
(t) The Representatives shall have received a letter from
[Xxxxx'x] stating that (i) the Class A Certificates have received a
rating of "[ ]" and (ii) the Class B Certificates have received a
rating of "[ ]".
(u) The Representatives shall have received a letter from [S&P]
stating that (i) the Class A Certificates have received a rating of "[
]" and (ii) the Class B Certificates have received a rating of "[ ]".
(v) 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) there shall have been any material disruption in
commercial banking securities settlement or clearance services in the
United States or (iv) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or any
other substantial national or international calamity or emergency as
to make it, in the reasonable judgment of a majority in interest of
the several Underwriters, impracticable or inadvisable to proceed with
the public offering or the delivery of the Certificates on the terms
and in the manner contemplated in the Prospectus.
16
(w) [Reserved].
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 Representatives, in their absolute discretion, by notice
given to and received by the Depositor or the Bank prior to delivery of and
payment for the Certificates if, prior to that time, any of the events
described in Section 6(v) shall have occurred or any of the other conditions
described in Section 6 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 Representatives may make arrangements for
the purchase of such Certificates by other persons satisfactory to the
Bank, the Depositor and the Representatives, 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 Section 2. If the foregoing maximums are exceeded and the remaining
Underwriters or other underwriters satisfactory to the
Representatives, the Bank and the Depositor 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 Bank or
the Depositor, except that the Bank and the Depositor will continue to
be liable for the payment of expenses to the extent set forth in
Sections 9 and 13 and except that the provisions of Sections 10 and 11
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 8, purchases
Certificates which a defaulting Underwriter agreed but failed to
purchase.
17
(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, any of the Representatives,
the Bank or the Depositor 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 Bank and the Depositor or counsel for the
Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement, and the Depositor
agrees 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 7 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 Bank 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 Bank shall pay the full amount thereof to the Representatives. If this
Agreement is terminated pursuant to Section 7 by reason of the default of one
or more Underwriters, the Bank 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 the Registration
Statement, the Preliminary Prospectus or the Prospectus or in any
amendment or supplement thereto or in the Issuer Information or in any
computer tape in respect of the Certificates or the related
receivables furnished by the Depositor to any Underwriter or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in
the case of Issuer Information, when considered together with the
Preliminary Prospectus), 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
18
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.
(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 and Section 10 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, the Preliminary Prospectus or the Prospectus or in any
amendment or supplement thereto or in any Derived Information 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
(A) in any preliminary prospectus supplement, the Registration
Statement, the Preliminary Prospectus or the Prospectus or in any
amendment or supplement thereto was made in reliance upon and in
conformity with the written information furnished to the Bank and the
Representing Parties by or on behalf of such Underwriter specifically
for use therein or (B) in the Derived Information that does not arise
out of or is not based upon an error or material omission in the
information contained in the Preliminary Prospectus or in any computer
tape in respect of the Certificates or the related receivables
furnished by the Depositor to any Underwriter, and shall reimburse
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 Representatives by or on behalf of the
Underwriters (the "Underwriters' Information") consists [(x) with
respect to the Preliminary Prospectus, solely of the first paragraph
of text exclusive of the following table and the fourth paragraph of
text exclusive of the following table under the caption "Underwriting"
in the Preliminary Prospectus and the second, third and fourth
paragraphs of text and the second sentence in the sixth paragraph of
text under the caption "Underwriting-General" in the Preliminary
Prospectus and (y) with respect to the Prospectus Supplement, solely
of the first paragraph of text including the following table and the
fourth paragraph of text including the following table under the
caption "Underwriting" in the Prospectus Supplement and the second,
third and fourth paragraphs of text and the second sentence in the
sixth paragraph of text under the caption "Underwriting-General" in
the Prospectus Supplement.]
19
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 9 except to the extent it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such
failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 9 for
any legal or other expenses subsequently incurred by the indemnified
party 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 (i) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) 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, (iii) 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 (iv)
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,
which shall not be unreasonably withheld, 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
20
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 (i)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceedings
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
The obligations of the Representing Parties and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability which the
Representing Parties or the Underwriters, as the case may be, may otherwise
have.
10. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Representing Parties on the one hand and the
Underwriters on the other from the offering of the Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Representing Parties on the one hand and the 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
21
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, 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, the Representing Parties and their
respective successors and the controlling persons and officers and directors
referred to in Sections 9 and 10 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. EXPENSES. The Representing Parties agree with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Certificates and any taxes payable in connection therewith;
(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 (including the Preliminary Prospectus), 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 and the Term Sheet 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 3(a)(vii) and of preparing, printing and distributing Blue
Sky Memoranda (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by [Xxxxx'x] and [S&P] for rating the
Certificates; (g) all fees and expenses of the Trustee and its counsel; (h)
the amounts set forth in Section 4(h); and (i) 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.
22
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 [ ], Attention: [ ];
and [ ], Attention: [ ];
(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: General Counsel;
and
(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.
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Bank and the Depositor shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representatives.
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 WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
19. NO FIDUCIARY DUTY. Each of the Depositor and the Bank acknowledges and
agrees that each of the Underwriters is acting solely in the capacity of an
arm's length contractual counterparty to the Depositor and the Bank with
respect to the offering of Certificates contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Depositor, the Bank or any
other person. In addition, neither the Representatives nor any other
Underwriter is advising the Depositor, the Bank or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
Each of the Depositor and the Bank shall consult with its own advisors
concerning such matters, and the Underwriters shall have no responsibility or
liability to either the Depositor or the Bank with respect thereto. Any review
by the Underwriters of the Depositor, the Bank, the transactions contemplated
hereby or other matters relating to such
23
transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of either the Depositor or the Bank.
24
If the foregoing is in accordance with your understanding of the
agreement between the Bank, the Depositor and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
USAA ACCEPTANCE, LLC
By: __________________________
Name:
Title:
USAA FEDERAL SAVINGS BANK
By: __________________________
Name:
Title:
Accepted:
[ ]
By: _____________________________
Authorized Signatory
Accepted:
[ ]
By: _____________________________
Authorized Signatory
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
SCHEDULE 1
Principal Amount Principal Amount
of Class A of Class B
Underwriter Certificates Certificates
----------- -------------------- ------------------
$ $
$ $
$ $
$ $
$ $
$ $
-------------------- ------------------
Total............................................. $ $
-------------------- ------------------
