Exhibit 1.1
USAA AUTO OWNER TRUST 200_-[ ]
Asset Backed Notes
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
USAA ACCEPTANCE, LLC
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
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___________, 200_
[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 an owner trust, USAA Auto Owner Trust 200_-[ ]
(the "Issuer"), pursuant to an amended and restated trust agreement to be
dated as of _________, 200_ (the "Trust Agreement"), between the Depositor and
Wachovia Trust Company, National Association, as owner trustee (the "Owner
Trustee"), which will issue (i) $______________ principal amount of its Class
[ ] [o]% Asset Backed Notes (the "Class [ ] Notes"), (ii) $____________
principal amount of its Class [ ] [o]% Asset Backed Notes (the "Class [ ]
Notes"), (iii) $__________ principal amount of its Class [ ] [o]% Asset Backed
Notes (the "Class [ ] Notes") and (iv) $________ principal amount of its Class
[ ] [o]% Asset Backed Notes (the "Class [ ] Notes" and, together with the
Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes, the "Notes")
pursuant to an indenture to be dated as of __________, 200_ (the "Indenture"),
between the Issuer and _________________, as indenture trustee (the "Indenture
Trustee"). The Issuer will also issue $___________ certificate balance of its
Class [ ] [o]% Asset Backed Certificates (the "Certificates" and, together
with the Notes, the "Securities"). The assets of the Issuer will include,
among other things, a pool of motor vehicle installment loans made by USAA
Federal Savings Bank, a federally chartered savings association (the "Bank"),
and secured by new and used cars and light duty trucks (the "Receivables"),
certain monies due or received thereunder on or after _______, 200_, security
interests in the vehicles financed thereby, certain accounts, and
the proceeds thereof, and the proceeds from claims on certain insurance
policies. The Receivables will be transferred to the Depositor by the Bank, as
seller (in such capacity, the "Seller"), pursuant to a receivables purchase
agreement to be dated as of ________, 200_ (the "Receivables Purchase
Agreement"), between the Seller and the Depositor, as purchaser (the
"Purchaser"), and the Depositor will transfer the Receivables to the Issuer in
exchange for the Securities, pursuant to a sale and servicing agreement to be
dated as of ________, 200_ (the "Sale and Servicing Agreement"), among the
Depositor, the Bank, as servicer (in such capacity, the "Servicer"), and the
Issuer. The Servicer will service the Receivables pursuant to the Sale and
Servicing Agreement. Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Sale and Servicing Agreement.
This is to confirm the agreement concerning the purchase of the Notes
from the Depositor by the several Underwriters named in Schedule I hereto (the
"Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND THE
BANK. The Depositor and the Bank (each, a "Representing Party" and,
collectively, the "Representing Parties"), jointly and severally, represent
and warrant to, and agree, with the several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-[o]) relating to
the Securities has been filed by Depositor with the Securities and
Exchange Commission (the "Commission") and has become effective under the
Securities Act of 1933, as amended (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 ________, 200_ (the
"Prospectus Supplement") to the prospectus dated ________, 200_, relating
to the Securities and the method of distribution thereof. Copies of such
registration statement, any amendment or supplement thereto, including
the Term Sheet dated ________, 200_ relating to the Securities (the "Term
Sheet") disseminated by the Underwriters, such prospectus and the
Prospectus Supplement have been delivered to you. Such registration
statement, including exhibits thereto and the Term Sheet as incorporated
by reference therein, and such prospectus, as amended or supplemented to
the date hereof, and as further supplemented by the Prospectus
Supplement, are hereinafter referred to as the "Registration Statement"
and the "Prospectus," respectively. The conditions to the use of a
registration statement on Form S-3 under the Securities Act have been
satisfied. The Depositor filed the Term Sheet on Form 8-K with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), within two business days of its dissemination by
the Underwriters.
(b) The Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Securities
Act and the Rules and Regulations and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and did not include any untrue statement of a
material fact and, in the case of the Registration Statement and any
post-effective amendment thereto, did not omit to state any material fact
required to be stated therein or necessary to make the
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statements therein not misleading and, in the case of the Prospectus, did
not omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; on the Closing Date (as hereinafter defined),
the Registration Statement and the Prospectus, as amended or supplemented
as of the Closing Date, will comply in all material respects with the
applicable requirements of the Securities Act and the Rules and
Regulations and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and neither the Prospectus nor any amendment or
supplement thereto will include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The representation and warranty in the
preceding sentence does not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the Trust
Indenture Act or (ii) that information contained in or omitted from the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Underwriters'
Information (as defined herein). The Indenture has been qualified under
the Trust Indenture Act.
(c) The Bank has been duly organized and is validly existing as a
federally chartered savings association and is a member of the Federal
Home Loan Bank System. The Bank is in good standing with the Office of
Thrift Supervision and has the power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
such properties are presently owned, leased and operated and as such
business is presently conducted, and had at all relevant times, and now
has, the power, authority and legal right to own and sell the
Receivables.
(d) 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. Section 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.
(e) The representations and warranties of the Bank in Section 3.02
of the Receivables Purchase Agreement will be true and correct as of the
Closing Date.
(f) The representations and warranties of the Depositor in Section
5.1 of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
(g) The representations and warranties of the Servicer in Section
6.1 of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
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(h) 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.
(i) This Agreement has been duly executed and delivered by the
Representing Parties.
(j) When authenticated by the Owner Trustee in accordance with the
Trust 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 Trust Agreement and the Sale and Servicing
Agreement.
(k) When authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for pursuant to this Agreement, the
Notes will be duly issued and constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights in general or the rights of
creditors of federal savings associations and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(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 registration of the Securities
under the Securities Act, the qualification of the Indenture under the
Trust Indenture 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 Notes 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
Securities, (ii) seeking to prevent the issuance of any of the Securities
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
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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 Securities or this Agreement, or (iv)
that may adversely affect the federal or state income, excise, franchise
or similar tax attributes of the Securities.
(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 or (iii) is not
in violation in any respect of any law, order, rule or regulation
applicable to such Representing Party or any of such Representing Party's
property of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or any of its property, except, in the case of
clauses (ii) and (iii), for any defaults or violations that would not,
individually or in the aggregate, have a material adverse effect on (A)
the performance by such Representing Party's of its obligations under, or
the validity or enforceability of, the Securities, 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 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 their behalf
has taken any action that would require qualification of the Trust
Agreement under the Trust Indenture 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
Notes set forth opposite the name of such Underwriter in Schedule 1 hereto at
a purchase price equal to (i) with respect to the Class [ ] Notes, [o]% of the
principal amount thereof, (ii) with respect to the Class [ ] Notes, [o]% of
the principal amount thereof, (iii) with respect to the Class [ ] Notes, [o]%
of the principal amount thereof and (iv) with respect to the Class [ ] Notes,
[o]% of the principal amount thereof.
The Depositor shall not be obligated to deliver any of the Notes except
upon payment in full for all the Notes to be purchased as provided herein.
3. DELIVERY OF AND PAYMENT FOR THE NOTES. Delivery of and payment for the
Notes shall be made at the office of Sidley Xxxxxx Xxxxx & Xxxx 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
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Depositor, at 9:00 A.M., New York time, on ________, 200_, 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 Notes against payment to or upon the order of the
Depositor of the purchase price in immediately available funds. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, each class of the Notes 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 Notes will be represented by book-entries on the records of DTC and
participating members thereof. Definitive certificates representing the Notes
will be available only under limited circumstances.
4. 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
Securities 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
(i) the effectiveness of any post-effective amendment to the
Registration Statement, (ii) any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (iii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (iv) the issuance by the Commission of any order
preventing or suspending the use of any prospectus relating to the
Securities or the initiation or threatening of any proceedings for
that purpose and (v) the receipt by the Depositor of any
notification with respect to the suspension of the qualification of
the Securities 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 Securities 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 Securities 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
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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 (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: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and each of the Basic
Documents) and (ii) any preliminary prospectus supplement, the Term
Sheet, the Prospectus and any amendment or supplement thereto.
(v) During any period in which a prospectus relating to the
Securities is required to be delivered under the Securities Act, to
file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that
may, in the judgment of the Depositor or the Representatives, be
required by the Securities Act or requested by the Commission.
(vi) For so long as any of the Notes are outstanding or until
such time as the Underwriters shall cease to maintain a secondary
market in the Notes, to furnish to the Underwriters (i) copies of
all materials furnished by the Issuer to the holders of the Notes
and all reports and financial statements furnished by the Issuer to
the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder and (ii) from time to time,
such other information concerning the 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 Notes 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 Notes; provided, that in connection therewith
the Depositor shall not
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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 Notes, to deliver to you the annual statement of
compliance and the annual independent certified public accountants'
report furnished to the Owner Trustee and the Indenture Trustee,
pursuant to the Sale and Servicing Agreement, as soon as such
statements and reports are furnished to the Owner Trustee and the
Indenture Trustee, respectively.
(x) To cause the Trust to make generally available to
Noteholders 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.
(b) The Depositor and the Bank agree with each of the several
Underwriters:
(i) To the extent, if any, that the ratings provided with
respect to the Notes 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.
5. REPRESENTATION OF THE UNDERWRITERS. Each Underwriter hereby represents
and warrants that the Term Sheet constitutes the only "Series Term Sheet" (as
such term is defined in the no-action letter addressed to Greenwood Trust
Company, Discover Card Master Trust I dated April 5, 1996) and the only
"Computational Materials," "ABS Term Sheets," "Structural Term Sheets" or
"Collateral Term Sheet" (as such terms are defined in the no-action letters
addressed to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al. dated May 20,
1994 and to the Public Securities Association dated February 17, 1995)
disseminated by it in connection with offering of the Notes contemplated
hereunder.
6. 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
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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 with the Commission pursuant
to Rule 424(b) of the Rules and Regulations within the time period
prescribed by such rule.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Securities,
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 Trust Agreement shall have been duly executed and delivered
by the Depositor and the Owner Trustee and the Certificates shall have
been duly executed and delivered by the Owner Trustee on behalf of the
Issuer and duly authenticated by the Owner Trustee.
(d) The Sale and Servicing Agreement shall have been duly executed
and delivered by the Depositor, the Servicer and the Issuer.
(e) The Indenture shall have been duly executed and delivered by the
Issuer and the Indenture Trustee and the Notes shall have been duly
executed and delivered by the Issuer and duly authenticated by the
Indenture Trustee.
(f) The Receivables Purchase Agreement shall have been duly executed
and delivered by the Seller and the Depositor.
(g) The Representatives shall have received evidence satisfactory to
it and its counsel that on or before the Closing Date, UCC-1 financing
statements required to be filed on or prior to the Closing Date pursuant
to the Basic Documents have been filed.
(h) Xxxxxx X. Xxxxxxx, Esq., Senior Vice President and General
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.
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(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 Trust 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
interests created by the Indenture, in each case, in form and substance
reasonably satisfactory to the Representatives and their counsel.
(k) Sidley Xxxxxx Xxxxx & Xxxx 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 Trust Agreement and the Note Depository
Agreement), (ii) the validity of the security interests created thereby,
(iii) the due issuance and enforceability of the Notes, (iv) the
qualification of the Indenture under the Trust Indenture Act, (v) no
violations of law, (vi) compliance with applicable federal securities
laws, (vii) exemption of the Bank, the Depositor and the Issuer from
registration as an investment company under the Investment Company Act of
1940, (viii) the conformity in all material respects of each of the Basic
Documents to the description thereof contained in the Registration
Statement and the Prospectus and (ix) negative assurances concerning the
Prospectus, in each case in form and substance reasonably satisfactory to
the Representatives and their counsel.
(l) Gardere Xxxxx Xxxxxx L.L.P., 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 interests created
by the Receivable Purchase Agreements, in form and substance reasonably
satisfactory to the Representatives and their counsel.
(m) Sidley Xxxxxx Xxxxx & Xxxx 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 Xxxxxx Xxxxx & Xxxx 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, (ii) the
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Notes will be characterized as indebtedness for federal income tax
purposes and (iii) the statements set forth in the Prospectus under the
heading "Certain Federal Income Tax Consequences", to the extent that
they are statements of law are true and correct in all material respects,
in form and substance reasonably satisfactory to the 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) ________________________________, counsel to the Owner Trustee,
shall have furnished to the Representatives their written opinion, as
counsel to the Owner Trustee, addressed to the Underwriters and dated the
Closing Date, regarding the due organization of the Owner Trustee, the
due authorization, execution and delivery by the Owner Trustee of the
Trust Agreement, 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.
(q) ____________________, counsel to the Indenture Trustee, shall
have furnished to the Representatives their written opinion, as counsel
to the Indenture Trustee, addressed to the Underwriters and dated the
Closing Date, regarding the due organization of the Indenture Trustee,
the due authorization, execution and delivery by the Indenture 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 as the Representatives shall deem advisable. In
addition, if any amendment or 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 (A) 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, (B) 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, (C)
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted
or, to the best of his or her knowledge,
11
are contemplated by the Commission, and (D) since ______________, there
has been no material adverse change in the financial position or results
of operations of the 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 [ ] Notes have received a rating of "Prime-1"
and (ii) the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes
have received a rating of "Aaa".
(u) The Representatives shall have received a letter from S&P
stating that (i) the Class [ ] Notes have received a rating of "A-1+" and
(ii) the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes
have received a rating of "AAA".
(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) 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 Notes on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
7. 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 Notes 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.
8. DEFAULTING UNDERWRITERS.
(a) If any one or more of the Underwriters shall fail to purchase
and pay for any of the Notes 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 Notes by
other persons satisfactory to the Bank, the Depositor and the
Representatives, including any of the Underwriters, but if no such
arrangements are made
12
by the Closing Date, then each remaining non-defaulting Underwriter shall
be severally obligated to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing
Date in the respective proportions which the principal amount of Notes
set forth opposite the name of each remaining non-defaulting Underwriter
in Schedule 1 hereto bears to the aggregate principal amount of Notes 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
Notes on the Closing Date if the aggregate principal amount of Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds one-eleventh of the aggregate principal
amount of the Notes 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 Notes which it
agreed to purchase on the Closing Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded and the remaining Underwriters
or other underwriters satisfactory to the Representatives, the Bank and
the Depositor do not elect to purchase the Notes 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
Notes which a defaulting Underwriter agreed but failed to purchase.
(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 Notes of a defaulting
Underwriter, either 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 Bank agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus that effects
any such changes.
9. 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 Notes for delivery to
the Underwriters for any reason permitted under this Agreement or (c) the
Underwriters shall decline to purchase the Notes 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 Notes, and upon demand the Bank shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 8 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.
13
10. 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
10 and Section 11 as the Underwriter) against any loss, claim, damage or
liability, joint or several, to which that Underwriter may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage or liability (or any action in respect thereof) arises out
of or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus supplement,
the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they are made, not misleading, and shall reimburse each Underwriter for
any legal or other expenses reasonably incurred by that Underwriter
directly in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection
with any such loss, claim, damage or liability (or any action in respect
thereof) as such expenses are incurred; provided, however, that the
Representing Parties shall not be liable in any such case to the extent
that any such loss, claim, damage or liability (or any action in respect
thereof) arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from (i) 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 or (ii) any Statement of
Eligibility and Qualification (Form T-1) filed with the Registration
Statement; provided, further, that such indemnity with respect to any
preliminary prospectus supplement or any amendment or supplement thereto
shall not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the Notes
which are the subject thereof (or to the benefit of any person
controlling such Underwriter) if at or prior to the written confirmation
of the sale of such Notes a copy of the Prospectus (or the Prospectus as
amended or supplemented) was not sent or delivered to such person and the
untrue statement or omission of a material fact contained in such
preliminary prospectus supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented) unless such failure is the result
of noncompliance by the Depositor with Section 4(a)(iv).
(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 10 and Section 11 as the "Representing Party
Indemnified Parties"), against any loss, claim, damage or liability,
joint or several, to which the Representing Party Indemnified Parties may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage or liability (or any action in respect thereof)
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
supplement, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or
14
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the written information furnished to
the Bank and the Representing Parties by or on behalf of such Underwriter
specifically for use therein, 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
solely of the _________________________ paragraph of text under the
caption "Underwriting" in the Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under this
Section 10 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 10, 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 10 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 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. 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 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, an
indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for
the indemnified party will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based upon advice of counsel to the
indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the
15
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 10(a) and 10(b), shall use
all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent, but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceedings.
The obligations of the Representing Parties and the Underwriters in this
Section 10 and in Section 11 are in addition to any other liability which the
Representing Parties or the Underwriters, as the case may be, may otherwise
have.
11. CONTRIBUTION. If the indemnification provided for in Section 10 is
unavailable or insufficient to hold harmless an indemnified party under
Section 10(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 Notes 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
Notes 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 Notes 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.
16
The Representing Parties and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 11 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 11 shall be deemed to
include, subject to the limitations on the fees and expenses of separate
counsel set forth in Section 10, for purposes of this Section 11, 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 11, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Notes 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 10 and contribute as provided in this Section
11 are several in proportion to their respective underwriting obligations and
not joint.
12. 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 10 and 11 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.
13. EXPENSES. The Representing Parties agree with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes 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, 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 Notes under the securities laws of the several jurisdictions as
provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by Xxxxx'x and S&P for rating the
Securities; (g) all fees and expenses of the Owner Trustee and the Indenture
Trustee and their respective counsel; and (h) all other costs and expenses
incident to the performance of the obligations of the Representing Parties
under this Agreement; provided, that except as otherwise provided in this
Section 13 and in Section 9, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer
taxes on the Notes which they may sell and the expenses of advertising any
offering of the Notes made by the Underwriters.
17
14. 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 Notes 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 Notes.
15. 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 __________________ at
_____________, ___________, _____________ , Attention: ______________,
___________, with a copy to the Legal Department; and __________________
at ________________, _________, _________ __________, Attention:
_______________;
(b) if to the Depositor, shall be delivered or sent by mail or
facsimile transmission and confirmed to 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.
16. 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.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. 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.
19. 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.
18
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
19
SCHEDULE 1
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriter Class [ ] Notes Class [ ] Notes Class [ ] Notes Class [ ] Notes
----------- --------------- --------------- --------------- ---------------
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
1
