EXHIBIT 1.2
HOUSEHOLD AUTOMOTIVE TRUST ___
SERIES _____
[$___________ ___% Class A Certificates]
UNDERWRITING AGREEMENT
[Name of Lead Underwriter]
As Representative of the Underwriters
[address] [date]
Dear Sirs:
Household Finance Corporation, a corporation organized and existing
under the laws of Delaware, individually ("HFC") and as Master Servicer (the
"MASTER SERVICER"), Household Auto Receivables Corporation, a corporation
organized and existing under the laws of Nevada and a wholly owned subsidiary of
HFC, individually ("HARC") and as Seller (the "SELLER"), Household Automotive
Finance Corporation, a corporation organized and existing under the laws of
Delaware and a wholly owned subsidiary of HFC ("HAFC"), and Household Automotive
Credit Corporation, a corporation organized and existing under the laws of
Delaware and a wholly owned subsidiary of HAFC ("HACC"), agree with you as
follows:
Section 1. ISSUANCE AND SALE OF SERIES _____ CERTIFICATES. The Seller
has authorized the issuance and sale of [$___________ ___% Class A Certificates]
(collectively, the "SERIES _____ CERTIFICATES"). The Series _____ Certificates
are to be issued by Household Automotive Trust _____ (the "TRUST") pursuant to
the Pooling and Servicing Agreement, dated as of __________, by and among HFC,
the Master Servicer, the Trust and ____________________, a ____________________,
as trustee (the "TRUSTEE"). In addition to the Series _____ Offered
Certificates, the Trust will also issue the Series _____ Non-Offered
Certificates (the " Series _____Non-Offered CERTIFICATES") pursuant to the
Pooling and Servicing Agreement. The Series _____ Offered Certificates and the
Series _____Non-Offered Certificates are referred to herein collectively as the
"SECURITIES." The assets of the Trust will include a pool of non-prime retail
installment sales contracts secured by new or used automobiles, light duty
trucks and vans (the "RECEIVABLES") and certain monies due thereunder after the
close of business on __________ (the "CUT-OFF DATE").
[The Series _____ Offered will have the benefit of a Certificate
guaranty insurance policy (the "CERTIFICATE INSURANCE POLICY"), issued by
____________________, a ____________________ (the "CERTIFICATE INSURER").
In connection with the issuance of the Certificate Insurance Policy,
(i) HFC, HAFC and the Certificate Insurer will execute and deliver an Insurance
Agreement dated as of
__________ (the "INSURANCE AGREEMENT"), and (ii) the HFC, the Seller, the
Representative and the Certificate Insurer will execute and deliver an
Indemnification Agreement dated as of __________ (the "INDEMNIFICATION
AGREEMENT").]
As used herein, the term "SELLER AGREEMENTS" means the Pooling and
Servicing Agreement, [the Indemnification Agreement, ] the Master Receivables
Purchase Agreement dated as of [December 18, 2001], between the Seller and HAFC
(the "HAFC RECEIVABLES PURCHASE AGREEMENT"), the Master Receivables Purchase
Agreement dated as of [June 24, 2002], between the Seller and HACC (the "HACC
RECEIVABLES PURCHASE AGREEMENT" and, together with the HAFC Receivables Purchase
Agreement, the "MASTER RECEIVABLES PURCHASE AGREEMENTS"), and this Underwriting
Agreement (this "AGREEMENT"); the term "HAFC AGREEMENTS" means the HAFC
Receivables Purchase Agreement[, the Insurance Agreement] and this Agreement;
the term "HACC AGREEMENTS" means the HACC Receivables Purchase Agreement and
this Agreement; the term "HFC AGREEMENTS" means the Pooling and Servicing
Agreement, [the Insurance Agreement, the Indemnification Agreement, ] and this
Agreement.
HFC, the Seller, HAFC and HACC are direct or indirect subsidiaries
of Household International, Inc. ("HOUSEHOLD"). HFC, the Seller, HAFC and HACC
are collectively referred to herein as the "HOUSEHOLD ENTITIES").
The Series _____ Offered Certificates are being purchased by the
Underwriters named in Schedule 1 hereto, and the Underwriters are purchasing,
severally, only the Series _____ Offered Certificates set forth opposite their
names in Schedule 1, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. [Name of Lead
Underwriter] is acting as representative of the Underwriters and, in such
capacity, is hereinafter referred to as the "REPRESENTATIVE."
The offering of the Series _____ Offered Certificates will be made by
the Underwriters, and the Household Entities understand that the Underwriters
propose to make a public offering of the Series _____ Offered Certificates for
settlement on __________.
None of the Series _____Non-Offered Certificates are being purchased
by the Underwriters hereby.
Defined terms used herein and not otherwise defined shall have their
respective meanings as set forth in Section 1.1 of the Pooling and Servicing
Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES.
A. HAFC, HACC and the Seller, individually, represent and warrant to,
and agree with, the Underwriters as set forth in this Section 2(A). Certain
terms used in this Section 2(A) are defined in the second paragraph of
subsection 2(A)(i) below.
(i) A Registration Statement on Form S-3 (No. 333-____)
has (a) been prepared by the Seller on such form in conformity with
the requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") and the rules and regulations (the "RULES AND
REGULATIONS") of the United States Securities and Exchange Commission
(the "COMMISSION") thereunder, (b) been filed with the
2
Commission and (c) been declared effective by the Commission, and no
stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceeding for that purpose has been initiated
or threatened, by the Commission. Copies of such Registration
Statement have been delivered by the Seller to the Underwriters. There
are no contracts or documents of the Seller which are required to be
filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so
filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement. The conditions for use
of Form S-3, as set forth in the General Instructions thereto, have
been satisfied.
As used herein, the term "EFFECTIVE DATE" means the date on and time
at which the Registration Statement became effective, or the date on
and the time at which the most recent post-effective amendment to such
Registration Statement, if any, was declared effective by the
Commission. The term "REGISTRATION STATEMENT" means (i) the
registration statement referred to in the preceding paragraph,
including the exhibits thereto, (ii) all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the
date of issuance of the Series _____ Notes. The term "BASE PROSPECTUS"
means the prospectus included in the Registration Statement. The term
"PROSPECTUS SUPPLEMENT" means the prospectus supplement dated the date
hereof, specifically relating to the Series _____ Offered
Certificates, as filed with the Commission pursuant to Rule 424 of the
Rules and Regulations. The term "PROSPECTUS" means, together, the Base
Prospectus and the Prospectus Supplement.
All references in this Agreement to financial statements and schedules
and other information which is "contained," included" or "stated" in
the Registration Statement or the Prospectus (and all other references
of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
(ii) On the Effective Date and on the Closing Date,
assuming compliance by each Underwriter with Sections 3(a), 3(b) and
3(c) hereof on the Closing Date, the Registration Statement, including
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, did or will comply in all material
respects with the applicable requirements of the Act and the Rules and
Regulations thereunder, and did not or will 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. Neither the Prospectus or any
amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement is filed pursuant to Rule 424(b)
3
or on the Closing Date, will include any untrue statement of material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that HAFC, HACC and the
Seller make no representations or warranties as to (a) the information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information
furnished in writing to HAFC, HACC or the Seller by the Representative
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus[,][ and] (b) information in
any Derived Information (as defined in Section 3(e)) provided by the
Underwriters except to the extent that the information set forth
therein is "Seller-Provided Information" (as defined in Section 3(e))[
and (c) the information under the captions "Summary-The Insurer",
"Summary-Insurance Policy", and "Description of the Certificates - The
Certificate Guaranty Insurance Policy and the Insurer" in the
Prospectus Supplement (the "INSURER INFORMATION")].
(iii) Each of HAFC, HACC and the Seller is a corporation
duly organized and validly existing and in good standing under the
laws of its jurisdiction of incorporation. Each of HAFC, HACC and the
Seller has all requisite power and authority to own its properties and
conduct its business as presently conducted and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction which requires such qualification, except where
failure to have such requisite power and authority or to be so
qualified would not have a material adverse effect on the business or
consolidated financial condition of HAFC, HACC or the Seller.
(iv) Neither HAFC, HACC nor the Seller is in violation
of its certificate of incorporation or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or
by which it may be bound, or to which any of the property or assets of
HAFC, HACC or the Seller, as the case may be, is subject, except where
any such violation or default would not have a material adverse effect
on the transactions contemplated by this Agreement.
(v) The execution, delivery and performance by the
Seller of each Seller Agreement, the issuance of the Securities and
the consummation of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary action or
proceedings and will not conflict with or constitute a breach of, or
default under, or, other than as contemplated in the Registration
Statement, result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Seller pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Seller is a party or by which it may be bound,
or to which any of the property or assets of the Seller is subject,
nor will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Seller or any
applicable law, administrative regulation or administrative or court
decree, except
4
where any such conflict, breach, default, encumbrance or violation
would not have a material adverse effect on the transactions
contemplated by this Agreement.
(vi) The execution, delivery and performance by HAFC of
each HAFC Agreement, the issuance of the Securities and the
consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary action or
proceedings and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or, other than as contemplated
by the Registration Statement, assets of HAFC pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which HAFC is a party or by which it may be bound, or to
which any of the property or assets of HAFC is subject, nor will such
action result in any violation of the provisions of the charter or
by-laws of HAFC or any applicable law, administrative regulation or
administrative or court decree, except where any such conflict,
breach, default, encumbrance or violation would not have a material
adverse effect on the transactions contemplated by this Agreement.
(vii) The execution, delivery and performance by HACC of
each HACC Agreement has been duly and validly authorized by all
necessary action or proceedings and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or,
other than as contemplated by the Registration Statement, assets of
HACC pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which HACC is a party or by which
it may be bound, or to which any of the property or assets of HACC is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of HACC or any applicable law,
administrative regulation or administrative or court decree, except
where any such conflict, breach, default, encumbrance or violation
would not have a material adverse effect on the transactions
contemplated by this Agreement.
(viii) Each Seller Agreement has been, or when executed
and delivered, will have been, duly executed and delivered by the
Seller; and each Seller Agreement constitutes, or, when executed and
delivered, will constitute, legal, valid and binding instruments
enforceable against the Seller in accordance with their respective
terms, subject as to enforceability (A) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, (B) to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and (C) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable securities
laws.
(ix) Each HAFC Agreement has been, or, when executed and
delivered, will have been duly executed and delivered by HAFC; and
each HAFC Agreement constitutes, or, when executed and delivered, will
constitute, legal,
5
valid and binding instruments enforceable against HAFC in accordance
with their respective terms, subject as to the enforceability (A) to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, (B) to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (C) with respect to rights of
indemnity under this Agreement, to limitations of public policy under
applicable securities law.
(x) Each HACC Agreement has been, or, when executed and
delivered, will have been duly executed and delivered by HACC; and
each HACC Agreement constitutes, or, when executed and delivered, will
constitute, a legal, valid and binding instrument enforceable against
HACC in accordance with their respective terms, subject as to
enforceability (A) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights generally, (B) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
(C) with respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities law.
(xi) HAFC and HACC have each authorized the conveyance
of the respective Receivables to be conveyed by such Person to the
Seller; the Seller has authorized the conveyance of the Receivables to
the Trust; and the Seller has directed the Trust to issue and sell the
Securities.
(xii) Each of HAFC, HACC and the Seller is solvent and
will not become insolvent after giving effect to the transactions
contemplated by this Agreement and the other Related Documents. The
Seller has no indebtedness to any Person other than pursuant to this
Agreement and other than pursuant to transactions in which the Seller
transfers assets to a trust which issues securities. Each of the
Issuer, HAFC, HACC and the Seller, after giving effect to the
transactions contemplated by this Agreement and the other Related
Documents, will have an adequate amount of capital to conduct its
business in the foreseeable future.
(xiii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of any Seller
Agreement, the Indenture and the Securities shall have been paid or
will be paid by the Seller at or prior to the Closing Date.
(xiv) The Series _____ Offered Certificates have been
duly and validly authorized, and, when validly executed,
authenticated, issued and delivered in accordance with the Pooling and
Servicing Agreement and as provided herein will conform in all
material respects to the description thereof contained in the
Prospectus and will be validly issued and outstanding and entitled to
the benefits of the Offered Certificates.
6
(xv) There are no legal or governmental proceedings
pending, or to the knowledge of HAFC, HACC or the Seller threatened,
to which HAFC, HACC or the Seller is a party or of which any property
of any of them is the subject, other than proceedings which are not
reasonably expected, individually or in the aggregate, to have a
material adverse effect on the shareholder's equity or consolidated
financial position of such person and its subsidiaries taken as a
whole, or which would have a material adverse effect upon the
consummation of this Agreement.
(xvi) KPMG LLP is an independent public accountant with
respect to HAFC, HACC and the Seller as required by the Act and the
Rules and Regulations.
(xvii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or governmental agency or body of the United States is required
for the issue and sale of the Series _____ Offered Certificates, or
the consummation by HAFC, HACC or the Seller of the other transactions
contemplated by this Agreement, the Master Receivables Purchase
Agreements or the Pooling and Servicing Agreement except for (A) the
registration under the Act of the Series _____ Offered Certificates,
(B) such consents, approvals, authorizations, orders, registrations,
qualifications, licenses or permits as have been obtained or as may be
required under state securities or Blue Sky laws in connection with
the purchase of the Series _____ Offered Certificates and the
subsequent distribution of the Series _____ Offered Certificates by
the Underwriters or (C) where the failure to obtain such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material adverse
effect on the business or consolidated financial condition of HAFC and
its subsidiaries taken as a whole or the Seller or the transactions
contemplated by such agreements.
(xviii) (a) Seller has the power and authority to sell the
Receivables to the Trust, and (b) following the conveyance of the
Receivables to the Trust pursuant to the Pooling and Servicing
Agreement, the Trust will own the Receivables free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "LIENS") other than Liens created by
the Pooling and Servicing Agreement.
(xix) As of the Cut-Off Date, each of the
Receivables will meet the eligibility criteria described in the
Prospectus.
(xx) None of HAFC, HACC or the Seller will conduct their
operations while any of the Securities are outstanding in a manner
that would require the Seller or the Trust to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 ACT"), as in effect on the date hereof.
7
(xxi) Each of HAFC, HACC and the Seller possesses all
material licenses, certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by it and as described
in the Prospectus and none of HAFC, HACC or the Seller has received
notice of any proceedings relating to the revocation or modification
of such license, certificate, authority or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
(xxii) At the Closing Date, each of the representations
and warranties of HAFC set forth in the HAFC Agreements, of HACC set
forth in the HACC Agreements or of the Seller set forth in the Seller
Agreements will be true and correct in all material respects.
(xxiii) Since the respective dates as of which information
is given in the Prospectus, (x) there has not been any material
adverse change in or affecting the general affairs, business,
management, financial condition, stockholder's equity, results of
operations, regulatory situation or business prospects of HAFC and (y)
HAFC has not entered into any transaction or agreement (whether or not
in the ordinary course of business) material to HAFC that, in either
case, would reasonably be expected to materially adversely affect the
interests of the holders of the Series _____ Offered Certificates,
otherwise than as set forth or contemplated in the Prospectus.
B. HFC represents, warrants and agrees with the Underwriters, that:
(i) HFC is a corporation duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation. HFC has all requisite power and authority to own its
properties and conduct its business as presently conducted and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction which requires such qualification,
except where the failure to have such power and authority or to be so
qualified would not have a material adverse effect on the business or
consolidated financial condition of HFC and its subsidiaries taken as
a whole.
(ii) HFC is not in violation of its certificate of
incorporation or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which HFC is a party or by which it may be bound, or to
which any of the property or assets of HFC is subject except where any
such violation or default would not have a material adverse effect on
the transactions contemplated by this Agreement.
(iii) The execution, delivery and performance by HFC of
the HFC Agreements, and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized
by all necessary action or
8
proceedings and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of HFC pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which HFC is a party or by which it may be bound,
or to which any of the property or assets of HFC is subject, nor will
such action result in any violation of the provisions of the
certificate of incorporation or by-laws of HFC or any applicable law,
administrative regulation or administrative or court decree, except
where any such conflict, breach, default, encumbrance or violation
would not have a material adverse effect on the transactions
contemplated by this Agreement.
(iv) Each HFC Agreement has been, or, when executed and
delivered, will have been, duly executed and delivered by HFC; and
each HFC Agreement constitutes, or, when executed and delivered, will
constitute, legal, valid and binding instruments enforceable against
HFC in accordance with their respective terms, subject as to
enforceability (A) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights generally, (B) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
(C) with respect to rights of indemnity under this Agreement to
limitations of public policy under applicable securities laws.
(v) HFC will, upon request by any Underwriter, provide
to such Underwriter complete and correct copies of all reports filed
by it with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), during 1998, 1999, 2000, 2001
and 2002. Except as set forth in or contemplated in such reports,
there has been no material adverse change in the consolidated
financial condition of HFC and its subsidiaries taken as a whole.
(vi) There are no legal or governmental proceedings
pending, or to the knowledge of HFC threatened, to which HFC is a
party or of which any of its property is the subject, other than
proceedings which are not reasonably expected, individually or in the
aggregate, to have a material adverse effect on the shareholder's
equity or consolidated financial position of HFC and its subsidiaries
taken as a whole or which would have a material adverse effect upon
the consummation of this Agreement.
(vii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or governmental agency or body of the United States is required
for the consummation by HFC of the transactions contemplated by the
HFC Agreements, except for (A) the registration under the Act of the
Series _____ Offered Certificates, (B) such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses or permits as have been obtained or as may be required under
State securities or Blue Sky laws in connection with the purchase of
the Series _____ Offered Certificates and the subsequent distribution
of the Series _____ Offered Certificates by the Underwriters or (C)
where the failure to obtain such consents,
9
approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material adverse
effect on the business or consolidated financial condition of HFC and
its subsidiaries taken as a whole or the transactions contemplated by
such agreements.
(viii) KPMG LLP is an independent public accountant with
respect to HFC as required by the Act and the Rules and Regulations.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each
Underwriter severally, and not jointly, represents and warrants to, and agrees
with the other Underwriters, HAFC, HACC, the Seller and HFC that:
(a) As of the date hereof and as of the Closing Date that such
Underwriter has complied and will comply with all of its obligations arising
hereunder and in accordance with the Act, the Exchange Act, and the Rules and
Regulations and, with respect to the Derived Information provided by such
Underwriter, such Derived Information is accurate in all material respects
(taking into account the assumptions explicitly set forth in the Derived
Information, except for any errors therein attributable to errors or mistakes in
the Seller-Provided Information). The Derived Information provided by such
Underwriter to the Seller constitutes a complete set of all Derived Information
required to be filed with the Commission pursuant to the No-Action Letters.
(b) Such Underwriter shall provide the Seller no later than one
Business Day after any Collateral Term Sheet is delivered to a prospective
investor, or in the case of any Structural Term Sheets and Computational
Materials no later than one Business Day before the date on which the Prospectus
is required to be filed pursuant to Rule 424, all such Derived Information
delivered to a prospective investor by it during the period commencing on the
Effective Date and ending on the date the Prospectus is filed with the
Commission. Such Underwriter shall deliver to the Seller a hard copy and, in a
mutually agreed upon format, a disk or electronic transmission of such Derived
Information.
(c) Assuming the accuracy of the Seller-Provider Information used in
the preparation of Derived Information, the Derived Information delivered by
such Underwriter, as of the date thereof, is accurate in all material respects,
taking into account the assumptions set forth in such Derived Information, but
without making any representations as to the appropriateness of such
assumptions.
(d) Each Underwriter acknowledges that none of HAFC, HACC, the Seller
or HFC will be deemed to have breached any representation and warranty or to
have failed to satisfy any other agreement contained herein, to the extent any
such breach or failure on the part of such party resulted solely from an
Underwriter's breach of the representation and warranty set forth in subsection
(a), (b) or (c) above.
(e) For purposes of this Agreement, "DERIVED INFORMATION" means the
type of information defined as Collateral Term Sheets, Structural Term Sheets or
Computational Materials (as such terms are interpreted in the No-Action
Letters). The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM SHEET" shall
have the respective meanings assigned to them in the
10
February 13, 1995 letter (the "PSA LETTER") of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx on behalf of the Public Securities Association (which letter, and the
Commission staff's response thereto, were publicly available February 17, 1995),
and with respect to "Collateral Term Sheet" includes any subsequent Collateral
Term Sheet that reflects a substantive change in the information presented. The
term "COMPUTATIONAL MATERIALS" has the meaning assigned to it in the May 17,
1994 letter (the "Xxxxxx Letter" and together with the PSA Letter, the
"NO-ACTION LETTERS") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc.
(which letter, and the Commission staff's response thereto, were publicly
available May 20, 1994). "SELLER-PROVIDED INFORMATION" means the information
contained on any computer tape furnished to the Underwriters by the Seller
concerning the assets comprising the Issuer.
Section 4. PURCHASE AND SALE. The Underwriters' commitment to purchase
the Series _____ Offered Certificates pursuant to this Agreement shall be deemed
to have been made on the basis of the representations and warranties of the
Household Entities herein contained and shall be subject to the terms and
conditions herein set forth. The Seller agrees to instruct the Trust to issue
the Series _____ Offered Certificates to the Underwriters, and the Underwriters
agree to purchase the Series _____ Offered Certificates on the date of issuance
thereof. The purchase prices for the Series _____ Offered Certificates shall be
as set forth on Schedule 1 hereto.
Section 5. DELIVERY AND PAYMENT. Payment of the purchase price for,
and delivery of, any Series _____ Offered Certificates to be purchased by the
Underwriters shall be made at the office of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of
the Americas, New York, New York, or at such other place as shall be agreed upon
by the Representative and the Household Entities, at 10:00 a.m. New York City
time on __________ (the "CLOSING DATE"), or at such other time or date as shall
be agreed upon in writing by the Representative and the Household Entities.
Payment shall be made by wire transfer of same day funds payable to the account
designated by HARC. Each of the Series _____ Offered Certificates so to be
delivered shall be represented by one or more global Series _____ Offered
Certificates registered in the name of Cede & Co., as nominee for The Depository
Trust Company.
The Household Entities agree to have the Series _____ Offered
Certificates available for inspection, checking and packaging by the
Representative in New York, New York, not later than 12:00 P.M. New York City
time on the business day prior to the Closing Date.
Section 6. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Series _____ Offered Certificates for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter represents and agrees that (i) it has not
offered or sold and, prior to the expiry of six months from the Closing Date,
will not offer or sell any Series _____ Offered Certificates to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all
11
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Series _____ Offered Certificates in,
from or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the Series _____ Offered
Certificates, to a person who is of a kind described in the Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995
or to a person to whom such document may otherwise lawfully be issued,
distributed or passed on.
Section 7. COVENANTS OF THE HOUSEHOLD ENTITIES. Each of HFC, HAFC,
HACC and the Seller covenants with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by the
Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the Underwriters of such timely
filing; to cause to be made no further amendment or any supplement to the
Registration Statement or to the Prospectus during the period in which the
Underwriters are required to deliver any such amendment or supplement to those
persons to whom the Underwriters have offered the Series _____ Offered
Certificates pursuant to Section 4(3) of the Securities Act (the "DELIVERY
PERIOD") except as permitted herein; to give prior notice to the Underwriters of
the filing of any amendment to the Registration Statement which is filed or
becomes effective during the Delivery Period or any supplement to the Prospectus
or any amended Prospectus which is filed during the Delivery Period and to
furnish the Underwriters with copies thereof; to file promptly all reports and
any global proxy or information statements required to be filed by the Seller
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus, and until the expiration
of the Delivery Period; and to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Series _____ Offered Certificates for offering or sale
in any jurisdiction; (iii) the initiation of or threat of any proceeding for any
such purpose; (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any such
qualification, the Seller promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
B. If, at any time when a Prospectus relating to the Series _____
Offered Certificates is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any
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 shall be necessary to supplement such
Prospectus to comply with the Act or the rules thereunder, the Seller shall be
required to notify the Underwriters and upon the Underwriters' request to
prepare and furnish without charge to the Underwriters as many copies as the
Underwriters may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which shall correct such statement or omission
or effect such compliance.
12
C. As soon as practicable, but in any event within 120 days of the
close of the period covered thereby, the Seller will make generally available to
Certificateholders and to the Underwriters an earnings statement or statements
of the Trust which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
D. The Seller will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by the
Underwriters or dealer may be required by the Act, as many copies of the
Prospectus and any supplement thereto as the Underwriters may reasonably
request.
E. The Household Entities, jointly and severally, agree to pay all
expenses incidental to the performance of their obligations under this
Agreement, including without limitation (i) expenses of preparing, printing and
reproducing the Registration Statement, the Prospectus, and any document
incorporated by reference in the Prospectus (including exhibits thereto), (ii)
any fees charged by any rating agency for the rating of the Series _____ Offered
Certificates, (iii) any expenses (including reasonable fees and disbursements of
counsel not to exceed $10,000) incurred by the Underwriters in connection with
qualification of the Series _____ Offered Certificates for sale under the laws
of such jurisdictions as the Underwriters designate, (iv) the fees and expenses
of (A) Xxxxx Xxxxxxxxxx LLP as special counsel for the Household Entities and
(B) KPMG LLP, (v) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Pooling and Servicing Agreement and the Series _____ Offered
Certificates, [(vi) certain fees and expenses of the Certificate Insurer and its
counsel] in connection with the Pooling and Servicing Agreement and the Series
_____ Offered Certificates (it being understood that, except as provided in this
paragraph (E) and in Sections 9 and 10 hereof, each Underwriter will pay its own
expenses, including the expense of preparing and reproducing this Agreement, the
fees and expenses of counsel for the Underwriters, any transfer taxes on resale
of any of the Series _____ Offered Certificates by it and advertising expenses
connected with any offers that the Underwriters may make).
F. The Seller will take all reasonable actions requested by the
Underwriters to arrange for the qualification of the Series _____ Offered
Certificates for sale under the laws of such jurisdictions within the United
States or as necessary to qualify for the Euroclear System or Clearstream
Banking, societe anonyme and as the Underwriters may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Series _____ Offered Certificates and will arrange for the determination of the
legality of the Series _____ Offered Certificates for purchase by institutional
investors.
G. For so long as the Series _____ Offered Certificates are
outstanding, HFC, the Seller, HAFC and HACC will furnish to the Underwriters (i)
as soon as practicable after the end of each fiscal year of the Trust, all
documents required to be distributed to Noteholders under the Pooling and
Servicing Agreement and (ii) as soon as practicable after filing, any other
information concerning the Household Entities filed with any government or
regulatory authority which is otherwise publicly available, as the Underwriters
may reasonably request.
13
H. To apply the net proceeds from the sale of the Series _____
Offered Certificates in the manner set forth in the Prospectus.
I. If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the knowledge of
the Seller, there shall have been any material change, or any development
involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
any of the Household Entities, the Seller will give prompt written notice
thereof to the Underwriters.
J. The Seller, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, will file all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Act and the Rules and Regulations
thereunder.
K. To the extent, if any, that the ratings provided with respect to
the Series _____ Offered Certificates by the Rating Agency that initially rate
the Series _____ Offered Certificates are conditional upon the furnishing of
documents or the taking of any other actions by the Seller, HAFC or HACC, the
Seller shall use its best efforts to furnish or cause to be furnished such
documents and take any such other actions.
L. Other than any warehouse financings, neither HAFC, HACC nor the
Seller will, without the prior written consent of the Representative, contract
to sell any automobile receivable-backed certificates or notes or other similar
securities either directly or indirectly for a period of five (5) business days
after the later of the termination of the underwriting syndicate or the Closing
Date.
M. So long as any of the Series _____ Offered Certificates are
outstanding, if so requested, HFC, the Seller, HAFC and HACC, as applicable,
shall furnish to the Underwriters as soon as such statements are furnished to
the Trustee: (i) the annual statement as to compliance of the Master Servicer
delivered to the Trustee pursuant to Section 4.10 of the Pooling and Servicing
Agreement, and (ii) the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 4.11 of the Pooling and
Servicing Agreement with respect to the Master Servicer.
N. The Seller will, at the expense of the Underwriters, file the
Derived Information provided to it by the Underwriters under Section 3 with the
Commission pursuant to a Current Report on Form 8-K not later than 5:00 p.m. on
the day the Prospectus is delivered to the Underwriters; provided, HOWEVER, that
as a condition to the filing of the Derived Information by the Seller, the
Seller must receive a letter from a firm of independent certified public
accountants reasonably acceptable to the Seller, which letter shall be
satisfactory in form and substance to the Seller, HFC and their counsel, to the
effect that such accountants have performed certain specified procedures, all of
which have been agreed to by the Seller, as a result of which they have
determined the accuracy in all material respects of the numerical and financial
information included in the Derived Information provided by the Underwriters to
the Seller for filing with the Commission.
14
The Seller shall not be obligated to file any Derived Information that
has been determined to contain any material errors or omission; provided,
HOWEVER, that, at the request of an Underwriter the Seller shall file Derived
Information containing material errors or omissions if clearly marked
"superseded by materials dated ________" and accompanied by corrected Derived
Information that is marked "these materials supersede and correct the materials
dated ________."
Section 8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Series _____ Offered
Certificates on the Closing Date pursuant to this Agreement are subject to (i)
the material accuracy of the representations and warranties on the part of the
Household Entities herein contained as of the date and time that this Agreement
is executed and delivered by the parties hereto (the "EXECUTION TIME"), (ii) the
material accuracy of the statements of officers of the Household Entities made
pursuant hereto, (iii) the performance by the Household Entities of all of their
respective obligations hereunder, and the performance by the Household Entities
of all of their respective obligations under the HAFC Agreements, HACC
Agreements, Seller Agreements and HFC Agreements and (iv) the following
conditions as of the Closing Date:
A. If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than 12:00 Noon New
York City time on the business day following the day on which the public
offering price was determined; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus shall have been
filed in the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or
threatened by the Commission.
B. Each of the Household Entities shall have delivered a certificate,
dated the Closing Date signed by its President or any Vice President and its
principal financial or principal accounting officer or its Treasurer or any
Assistant Treasurer or its Secretary or any Assistant Secretary to the effect
that the signers of such certificate, on behalf of the named Household Entity,
have carefully examined the Related Documents, the Prospectus and the
Registration Statement, stating that:
(i) the representations and warranties of such Household
Entity in this Agreement are true and correct in all material respects
at and as of the date of such certificate as if made on and as of such
date (except to the extent they expressly relate to an earlier date);
(ii) such Household Entity has complied, in all material
respects, with all the agreements and satisfied, in all material
respects, all the conditions on its part to be performed or satisfied
at or prior to the date of such certificate;
(iii) nothing has come to the attention of such Household
Entity that would lead it to believe that the Registration Statement
contains any untrue statement of a material fact or omits to state any
material fact necessary in order
15
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(iv) the Registration Statement is effective under the
Act and 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 knowledge of the xxxxxx, threatened.
C. Xxxx Xxxxxx, Vice President - Corporate Law and Assistant Secretary
of Household International, Inc., shall have delivered a favorable opinion with
respect to clauses (i) through (xi) of this paragraph (c), and Xxxxx Xxxxxxxxxx
LLP, special counsel to the Household Entities, shall have delivered a favorable
opinion with respect to clauses [(xii) through (xiv)] of this paragraph (c);
each opinion shall be dated the Closing Date and shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, to the
effect that:
(i) each of HFC, HAFC, HACC and the Seller is duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties, to conduct its business and
to enter into and perform its obligations under the HFC Agreements,
HAFC Agreements, the HACC Agreements or Seller Agreements, as
applicable, except where failure to have such power and authority or
to be so qualified will not have a material adverse effect, as
applicable, on the business or consolidated financial condition of HFC
and its subsidiaries, taken as a whole;
(ii) each of the HFC Agreements, HAFC Agreements, HACC
Agreements and Seller Agreements has been duly authorized, executed
and delivered by HFC, HAFC, HACC or the Seller, as applicable, and
each such agreement constitutes the valid and binding obligation of
HFC, HAFC, HACC or the Seller, as applicable, enforceable against HFC,
HAFC, HACC or the Seller, as applicable, in accordance with its
respective terms, except, in each case, that as to enforceability (A)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought, and (C) the
enforceability as to rights to indemnification under each of the HFC
Agreements, HAFC Agreements, HACC Agreements, Seller Agreements and
any other agreements calling for indemnification may be subject to
limitations of public policy under applicable securities laws;
(iii) the issuance and sale of the Series _____ Offered
Certificates have been duly authorized and, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be validly issued and outstanding,
entitled to the benefits of the Pooling and Servicing Agreement,
enforceable in accordance with their terms subject, as to
16
enforceability (A) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights generally and the rights and remedies of creditors of thrifts,
savings institutions or national banking associations and (B) to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(iv) neither the execution nor the delivery of the
Underwriting Agreement, the Master Receivables Purchase Agreements, or
the Pooling and Servicing Agreement nor the issuance or delivery of
the Series _____ Offered Certificates, nor the consummation of any of
the transactions contemplated herein or therein, nor the fulfillment
of the terms of the Series _____ Offered Certificates, the
Underwriting Agreement, the Master Receivables Purchase Agreements, or
the Pooling and Servicing Agreement will conflict with or violate any
term or provision of the charter or by-laws of the Household Entities,
or result in a breach or violation of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Household Entities (except the lien
of the Indenture) pursuant to, any material statute currently
applicable to any of them or any order or regulation known to such
counsel to be currently applicable to any of them of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Household Entities, or the terms of any
indenture or other agreement or instrument known to such counsel to
which the Household Entities is a party or by which any of them or any
of their properties are bound, except where any such conflict, breach,
violation, default or encumbrance would not have a material adverse
effect on the transactions contemplated by this Agreement.
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator with respect
to the Underwriting Agreement, the Trust, the Series _____ Offered
Certificates, the Master Receivables Purchase Agreements, the Trust
Agreement, or the Pooling and Servicing Agreement or any of the
transactions contemplated herein or therein or with respect to the
Household Entities which, in the case of any such action, suit or
proceeding with respect to any of them, would have a material adverse
effect on the Certificateholders or the Trust or upon the ability of
any of the Household Entities to perform their obligations under any
of such agreements, and there is no material contract, franchise or
document relating to the Trust or property conveyed to the Trust which
is not disclosed in the Registration Statement or Prospectus; and the
statements included in the Registration Statement and Prospectus
describing statutes (other than those relating to tax and ERISA
matters), legal proceedings, contracts and other documents fairly
summarize the matters therein described;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus or any supplement
thereto pursuant to Rule 424 has been made in the manner and within
the time period required by Rule 424; to the best knowledge of such
counsel, no stop order suspending the
17
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened; the
Registration Statement and the Prospectus (other than information
included in Derived Information and the financial and statistical
information contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules thereunder;
(vii) such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date,
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (other
than financial and statistical information contained therein as to
which such counsel need express no opinion);
(viii) to the best knowledge of such counsel, no consent,
approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or governmental agency or
regulatory body under the federal law of the United States or the laws
of the State of New York is required in connection with the
consummation of the transactions contemplated in the Underwriting
Agreement, the Master Receivables Purchase Agreements, or the Pooling
and Servicing Agreement, except (A) such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses or permits as have been made or obtained or as may be
required under the State securities or blue sky laws of any
jurisdiction in connection with the purchase of the Series _____
Offered Certificates by the Underwriters and the subsequent
distribution of the Series _____ Offered Certificates by the
Underwriters or (B) where the failure to have such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses or permits would not have a material adverse
effect on the Trust's interests in the Receivables or the transactions
contemplated by such agreements;
(ix) the Series _____ offered Certificates, the
Underwriting Agreement, the Master Receivables Purchase Agreements,
and the Pooling and Servicing Agreement conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus;
(x) Issuer is not required to be registered under the
Investment Company Act of 1940;
(xi) the statements (a) in the Base Prospectus under the
captions "Summary of Terms -- Material Federal Income Tax
Consequences," "Summary of Terms -- ERISA Considerations," "Material
Federal Income Tax Consequences," "ERISA Considerations" and "Material
Legal Aspects of the Auto Loans" and (b) in the Prospectus Supplement
under the captions "Summary -- Federal Income Tax Consequences,"
"Summary -- ERISA Considerations,"
18
"Material Federal Income Tax Consequences" and "ERISA Considerations"
to the extent that they constitute matters of law or legal conclusions
with respect thereto, have been reviewed by counsel and represent a
fair and accurate summary of the matters addressed therein, under
existing law and the assumptions stated therein.
(xii) no other filings or other actions, with respect to
the Trustee's interest in the Receivables, are necessary to perfect
the interest of the Trustee in the Receivables, and proceeds thereof,
against third parties, except that appropriate continuation statements
must be filed in accordance with the applicable state's requirements,
which is presently at least every five years; and
(xiii) the conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and
Regulations thereunder which have not been filed.
In rendering such opinion, counsel may rely (A) as to matters
involving the application of the law of any jurisdiction other than, in the case
of Xxxx X. Xxxxxx, the laws of the State of Illinois and United States Federal
laws, and in the case of Xxxxx Xxxxxxxxxx LLP, the laws of the State of New
York, the laws of the State of California, the corporate law of the State of
Delaware and the United States Federal laws, to the extent deemed proper and
stated in such opinion, upon the opinion of other counsel of good standing
believed by such counsel to be reliable and acceptable to you and your counsel,
and (B) as to matters of fact, to the extent deemed proper and as stated
therein, on the certificates of responsible officers of the Trust, Household
Entities and public officials. References to the Prospectus in this paragraph C
include any supplements thereto.
D. Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, shall have
delivered a favorable opinion dated the Closing Date with respect to the
validity of the Series _____ Offered Certificates, the Underwriting Agreement,
the Registration Statement, the Prospectus and such other related matters as the
Underwriters may reasonably require and the Household Entities shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on such matters. In giving their opinion, Xxxxx
Xxxxxxxxxx LLP may rely (i) as to matters of Illinois and Delaware law (other
than Delaware corporation law) upon the opinions of counsel delivered pursuant
to subsection (c) above, (ii) as to matters involving the application of laws of
any jurisdiction other than the State of New York and the State of California,
the United States Federal laws or the corporation law of the State of Delaware,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable, and (iii) as to matters
of fact, to the extent deemed proper and as stated therein on certificates of
responsible officers of the Trust, Household Entities and public officials.
E. Counsel to the Trustee shall have delivered a favorable opinion,
dated the Closing Date, and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, the Household Entities and their
counsel, to the effect that:
19
(i) The Trustee has been duly incorporated and is validly existing
as a national banking association in good standing under the laws of the
United States of America.
(ii) The Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Pooling and Servicing
Agreement, including, but not limited to, its obligation to serve in the
capacity of the Trustee and to execute, issue, countersign and deliver the
Series _____ Offered Certificates.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee, in
accordance with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(iv) The Series _____ Offered Certificates have been duly authorized,
executed and authenticated by the Trustee on the date hereof on behalf of
the Trust in accordance with the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of the Pooling and
Servicing and the Series _____ Offered Certificates by the Trustee will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of the
Trustee pursuant to the terms of the articles of association or the by-laws
of the Trustee or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction over the
Trustee or its property or assets or any agreement or instrument known to
such counsel, to which the Trustee is a party or by which the Trustee or
any of its respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is necessary
in connection with the execution, delivery and performance by the Trustee
of the Pooling and Servicing and the Series _____ Offered Certificates.
F. The Class A Certificates shall have been rated "___" or its
equivalent, by at least two nationally recognized Ratings Agencies.
G. The Underwriters shall have received copies of letters dated as of
the Closing Date, from the Ratings Agencies stating the current ratings of the
Series _____ Offered Certificates as set forth in Section F above.
H. The Underwriters shall have received from Xxxxx Xxxxxxxxxx LLP,
counsel to the Household Entities, a favorable opinion, dated the Closing Date
and satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Series _____ Offered Certificates.
20
I. [The Underwriters shall have received from special counsel to the
Certificate Insurer, reasonably acceptable to the Underwriters, a favorable
opinion dated the Closing Date as to such matters and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.]
J. [The Indemnification Agreement shall have been executed and
delivered, in which the Certificate Insurer shall represent, among other
representations, that (i) the Insurer Information was approved by the
Certificate Insurer and does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
(ii) there has been no change in the financial condition of the Certificate
Insurer since __________, which would have a material adverse effect on the
Certificate Insurer's ability to meet its obligations under the Certificate
Insurance Policy.]
K. [The Certificate Insurance Policy shall have been issued by the
Certificate Insurer and shall have been duly countersigned by an authorized
agent of the Certificate Insurer, if so required under applicable state law or
regulation.]
L. All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such other information, opinions, certificates and documents as they
may reasonably request in writing.
M. The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the rules and regulations
under the Act and Section 2 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
N. At the Closing Date, KPMG LLP shall have furnished to the
Underwriters a letter, dated as of the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
If any condition specified in this Section 8 shall not have been
fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to each of the Household Entities at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 9 and
(ii) the provisions of Section 9, the indemnity set forth in Section 10, the
contribution provisions set forth in Section 10 and the provisions of Sections
13 and 16 shall remain in effect.
Section 9. REIMBURSEMENT OF EXPENSES. If the sale of the Series _____
Offered Certificate provided for herein is not consummated because any condition
to the Underwriter's obligations set forth in Section 8 hereof is not satisfied,
because of any termination pursuant to Section 12 hereof or because of any
refusal, inability or failure on the part of the Indenture
21
Trustee or the Household Entities to perform any agreement herein or comply with
any provision hereof other than by reason of a default by the Underwriters, the
Household Entities, jointly and severally, will reimburse the Underwriters upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in connection with
the proposed purchase and sale of the Series _____ Offered Certificate.
Section 10. INDEMNIFICATION.
A. The Household Entities jointly and severally agree to indemnify and
hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of the Act or the Exchange Act, from and against
any and all loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Series _____ Offered
Certificates), to which the Underwriters or any such controlling person may
become subject, under the Act or the Exchange Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) the omission or
alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless (a) such untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Household Entities, or
information, if any, electronically transmitted to the Household Entities by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereof) or (b) such untrue statement or omission or alleged untrue statement or
omission relates to information in any Derived Information provided by the
Underwriters to a prospective investor (except to the extent that such untrue
statements contained therein are Seller-Provided Information); and shall
reimburse the Underwriters and each such controlling person promptly upon demand
for any documented legal or documented other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the foregoing
indemnity with respect to any untrue statement contained in or omission from the
Prospectus shall not inure to the benefit of the Underwriters if a Household
Entity shall sustain the burden of proving that the person asserting against the
Underwriters the loss, liability, claim, damage or expense purchased any of the
Series _____ Offered Certificates which are the subject thereof and was not sent
or given a copy of the appropriate Prospectus (or the appropriate Prospectus as
amended or supplemented) (the term Prospectus as used in this clause shall not
include documents incorporated by reference thereto), if required by law, at or
prior to the written confirmation of the sale of such Series _____ Offered
Certificates (unless such Prospectus is amended or supplemented after the
Prospectus has been delivered pursuant to Rule 424(b)) to such person and the
untrue statement contained in or omission from such Prospectus was corrected in
the appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented).
The foregoing indemnity agreement is in addition to any liability
which a Household Entity may otherwise have to the Underwriters or any
controlling person of any of the Underwriters.
22
B. Each of the Underwriters agrees to severally and not jointly
indemnify and hold harmless the Household Entities, the directors and the
officers of the Household Entities who signed the Registration Statement, and
each person, if any, who controls any Household Entity within the meaning of the
Act or the Exchange Act against any and all loss, claim, damage or liability, or
any action in respect thereof, to which a Household Entity or any such director,
officer or controlling person thereof may become subject, under the Act or the
Exchange Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Underwriter Information (as
defined below) or (ii) information in any Derived Information provided by such
Underwriter (except to the extent that such untrue statements or errors
contained therein are Seller-Provided Information), and shall reimburse the
applicable Household Entity, promptly on demand, and any such director, officer
or controlling person for any documented legal or other documented expenses
reasonably incurred by such Household Entity, or any director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. Underwriter Information means the information set forth
under the caption "Underwriting" in the Prospectus.
The foregoing indemnity agreement is in addition to any liability
which the Underwriters may otherwise have to any Household Entity or any such
director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
10 of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 10, promptly notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure; and PROVIDED, FURTHER, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 10.
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, unless such indemnified party reasonably objects to such assumption on
the ground that there may be legal defenses available to it which are different
from or in addition to those available to such indemnifying party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, except to the extent provided in the next
following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 10 for any fees and expenses of counsel
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
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
23
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 the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, 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 more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Representative, if the indemnified
parties under this Section 10 consist of the Underwriters or any of their
controlling persons, or by the Household Entities, if the indemnified parties
under this Section 10 consist of any of the Household Entities or any of the
Household Entities' directors, officers or controlling persons, but in either
case reasonably satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 10A and B, shall use its best 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 consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which such indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action.
D. If the indemnification provided for in this Section 10 shall for
any reason be unavailable to hold harmless an indemnified party under Section
10A or B in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, 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, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Household Entities
on the one hand and the Underwriters on the other from the offering of the
Series _____ Offered 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 Household Entities 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, or action in respect thereof,
as well as any other relevant equitable considerations.
24
The relative benefits of the Underwriters and the Household Entities
shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Household Entities
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Household Entities or by one of the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission and
other equitable considerations.
The Household Entities and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10D were to be
determined by pro rata allocation 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, or action in respect thereof, referred to above in this
Section 10D shall be deemed to include, for purposes of this Section 10D, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the meaning
of the Act or the Exchange Act shall have the same rights to contribution as
each of the Underwriters and each director of a Household Entity, each officer
of a Household Entity who signed the Registration Statement, and each person, if
any, who controls a Household Entity within the meaning of the Act or the
Exchange Act shall have the same rights to contribution as the applicable
Household Entity.
Except in the case of any loss, claim, damage, liability or expense
resulting solely from a breach of the Underwriter's representation and warranty
set forth in Section 3(a), (b) or (c) hereof, in no case shall any Underwriter
be responsible for any amount in excess of the underwriting discount applicable
to the Series _____ Offered Certificates purchased by such Underwriter
hereunder. 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.
E. The Underwriters severally confirm that the information set forth
(i) in the Prospectus relating to market making and (ii) under the caption
"Underwriting" in the Prospectus Supplement is correct and constitutes the only
information furnished in writing to a Household Entity by or on behalf of the
Underwriters specifically for inclusion in the Prospectus.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters participating in the public offering of the Series
_____ Offered Certificates shall fail at the Closing Date to purchase the Series
_____ Offered Certificates which it is obligated to purchase hereunder (the
"DEFAULTED SECURITIES"), then the non-defaulting Underwriter(s) shall have the
right, within 24 hours thereafter, to make arrangements 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
25
set forth. If, however, the Underwriter(s) have not completed such arrangements
within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of
the Series _____ Offered Certificates to be purchased pursuant to this
Agreement, the non-defaulting Underwriter(s) shall be obligated to
purchase the full amount thereof, severally in the same proportions as
the principal amount of Series _____ Offered Certificates set forth
opposite their respective names in Schedule 1 hereto, or
(ii) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the Series
_____ Offered Certificates to be purchased pursuant to this Agreement,
this Agreement shall terminate, without any liability on the part of
any non-defaulting Underwriter(s).
No action taken pursuant to this Section shall relieve the defaulting
Underwriter(s) from the liability with respect to any default of such
Underwriter(s) under this Agreement.
In the event of a default by an Underwriter as set forth in this
Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 12. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Seller and HAFC prior to delivery of and payment for the Series _____
Offered Certificates if prior to such time (i) trading in securities generally
on the New York Stock Exchange or the National Association of Securities Dealers
National Market System shall have been suspended or limited, or minimum prices
shall have been established on such exchange or market system; (ii) a banking
moratorium shall have been declared by either Federal, New York State
authorities or the State of California; (iii) there shall have occurred any
outbreak or material escalation of hostilities involving the United States of
America where armed conflict or the declaration of war appears imminent, if, the
effect of such event makes it, in the reasonable judgment of the Representative,
impractical or inadvisable to proceed with the completion of the sale and
payment for the Series _____ Offered Certificates; or (iv) any other calamity or
crisis having an effect on the U.S. financial markets that, in the reasonable
judgment of the Representative, makes it impractical or inadvisable to proceed
with the public offering or the delivery of the Securities as contemplated by
the Registration Statement. Upon such notice being given, the parties to this
Agreement shall (except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations under
this Agreement.
Section 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Household Entities
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Representative or
controlling person of the Representative, or by or on behalf of the Household
26
Entities or any officers, directors or controlling persons and shall survive
delivery of any certificates to the Representative or any controlling person.
Section 14. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to the Underwriters at
[Name of Lead Underwriter], ____________________, Attention:
____________________, Fax: (___) ___-____; if sent to any Household Entity to
0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel,
Fax: (000) 000-0000.
Section 15. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Representative and the Household Entities, and their
respective successors or assigns. Nothing expressed or mentioned in this
Agreement is intended nor shall it be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 10 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or with respect to this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and except as provided above for the benefit of no
other person, firm or corporation. No purchaser of Series _____ Offered
Certificates from the Representative shall be deemed to be a successor by reason
merely of such purchase.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 18. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
27
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Seller, HAFC, HACC and HFC in
accordance with its terms.
Very truly yours,
HOUSEHOLD FINANCE CORPORATION
By:
---------------------------------
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES CORPORATION
By:
---------------------------------
Name:
Title:
HOUSEHOLD AUTOMOTIVE FINANCE
CORPORATION
By:
---------------------------------
Name:
Title:
HOUSEHOLD AUTOMOTIVE CREDIT
CORPORATION
By:
---------------------------------
Name:
Title:
[Underwriting Agreement]
28
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF LEAD UNDERWRITER]
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By:
------------------------------------------
Name:
Title: Authorized Signatory
By:
------------------------------------------
Name:
Title: Authorized Signatory
[Underwriting Agreement]
29
Schedule 1
Purchase Price (excluding accrued interest)
[List Names of Underwriters] Class A
%
%
%
%
%
Notional Principal Amount
[List Names of Underwriters] Class A
-----------------------------------------------
Total $
Proceeds (excluding accrued interest)
[List Names of Underwriters] Class A
-----------------------------------------------
Total $
