Exhibit 1.1
EXECUTION VERSION
$440,000,000
WACHOVIA AUTO LOAN OWNER TRUST 2008-1
$107,000,000 3.9433% Class A-1 Asset Backed Notes
$30,000,000 4.04% Class A-2a Asset Backed Notes
$174,000,000 LIBOR plus 0.85% Class A-2b Asset Backed Notes
$129,000,000 4.27% Class A-3 Asset Backed Notes
WDS RECEIVABLES LLC
Depositor
WACHOVIA DEALER SERVICES, INC.
Originator
UNDERWRITING AGREEMENT
January 18, 2008
Wachovia Capital Markets, LLC
as Representative of the several Underwriters
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-06010
Ladies and Gentlemen:
WDS Receivables LLC, a Nevada limited liability company (the "Depositor")
and Wachovia Dealer Services, Inc., a California corporation (the
"Originator"), hereby confirm their agreement with Wachovia Capital Markets,
LLC ("Wachovia") and each of the other underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10), for whom
Xxxxxxxx is acting as representative (in such capacity, the "Representative"),
with respect to the sale by the Depositor and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in Schedule A of $107,000,000 aggregate principal amount of
3.9433% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), $30,000,000
aggregate principal amount of 4.04% Class A-2a Asset Backed Notes (the "Class
A-2a Notes"), $174,000,000 aggregate principal amount of LIBOR plus 0.85%
Class A-2b Asset Backed Notes (the "Class A-2b Notes") and $129,000,000
aggregate principal amount of 4.27% Class A-3 Asset Backed Notes (the "Class
A-3 Notes" and, together with the Class A-1 Notes, the Class A-2a Notes and
the Class A-2b Notes, the "Notes") of the Wachovia Auto Loan Owner Trust
2008-1 (the "Trust") under the terms and conditions contained herein.
Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue the Wachovia Auto Loan Owner Trust 2008-1 Asset
Backed Certificates (the "Certificates"), $60,000,000 aggregate principal
amount of Wachovia Auto Loan Owner Trust 2008-1 4.59% Class A-4 Asset Backed
Notes (the "Class A-4 Notes"), $22,455,000 aggregate principal amount of
Wachovia Auto Loan Owner Trust 2008-1 5.12% Class B Asset Backed Notes (the
"Class B Notes"), $26,946,000 aggregate principal amount of Wachovia Auto Loan
Owner Trust 2008-1 5.89% Class C Asset Backed Notes (the "Class C Notes"),
$34,431,000 aggregate principal amount of Wachovia Auto Loan Owner Trust
2008-1 7.60% Class D Asset Backed Notes (the "Class D Notes") and $14,970,000
aggregate principal amount of Wachovia Auto Loan Owner Trust 2008-1 9.05%
Class E Asset Backed Notes (the "Class E Notes" and, together with the
Certificates, the Notes, the Class A-4 Notes, the Class B Notes, the Class C
Notes and the Class D Notes, the "Securities").
The Notes will be issued pursuant to an indenture, dated as of January 1,
2008 (the "Indenture"), between the Trust and U.S. Bank National Association,
as trustee (the "Indenture Trustee"). The Trust was created and the
Certificates will be issued pursuant to an amended and restated trust
agreement, dated as of January 1, 2008 (the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as trustee (the "Owner Trustee"). Each
Note will represent an obligation of the Trust, each Certificate will
represent an undivided beneficial interest in the Trust and the Certificates
will be subordinated to the Notes to the extent described in the Indenture and
the Trust Agreement.
The assets of the Trust will include, among other things, (i) a pool of
motor vehicle retail installment sale contracts and installment loans (the
"Receivables") secured by the new and used motor vehicles financed thereby
(the "Financed Vehicles"), (ii) certain monies payable under the Receivables
after January 19, 2008, (iii) security interests in the Financed Vehicles,
(iv) amounts on deposit in certain accounts, (v) certain rights under a
receivables purchase agreement, dated as of January 1, 2008 (the "Receivables
Purchase Agreement"), between the Originator and the Depositor, pursuant to
which the Originator will sell the Receivables to the Depositor, (vi) certain
rights under a sale and servicing agreement, dated as of January 1, 2008 (the
"Sale and Servicing Agreement"), among the Trust, the Depositor and the
Originator, as seller (in such capacity, the "Seller") and Wachovia Bank,
National Association (the "Bank"), as master servicer (in such capacity, the
"Master Servicer"), pursuant to which the Receivables and other property of
the Trust will be sold to the Trust and the Receivables will be serviced by
the Master Servicer, (vii) certain rights under an interest rate swap
agreement, dated as of January 24, 2008 (the "Swap Agreement") between the
Trust and the Bank and (viii) all proceeds of the foregoing.
Pursuant to the Indenture, the Trust property will be held by the
Indenture Trustee on behalf of the holders of the Notes. Pursuant to an
administration agreement, dated as of January 1, 2008 (the "Administration
Agreement"), among the Bank, as administrator (in such capacity, the
"Administrator"), the Trust, the Depositor and the Indenture Trustee, the
Administrator will perform certain administrative obligations of the Trust
under the Indenture, the Trust Agreement and the Sale and Servicing Agreement.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture or the Sale and Servicing
Agreement, as the case may be.
The Indenture, the Trust Agreement, the Administration Agreement, the
Sale and Servicing Agreement, the Receivables Purchase Agreement, the Swap
Agreement and the depository account control agreement, dated as of January 1,
2008 (the "Control Agreement"), among Seller, the Trust, the Bank, as account
bank, and the Indenture Trustee, as secured party, are referred to herein
collectively as the "Basic Documents".
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The Depositor has prepared and filed with the Securities and Exchange
Commission (the "Commission"), a registration statement on Form S-3 (File No.
333-138043), and Amendment No. 1 thereto filed on November 16, 2006, including
a base prospectus and a form of preliminary prospectus supplement relating to
the offering of asset backed notes and asset backed certificates, issued in
series from time to time in accordance with Rule 415 of the rules and
regulations of the Commission (the "Securities Act Regulations") under the
Securities Act of 1933, as amended (the "Securities Act").
Promptly after execution and delivery of this Agreement, the Depositor
will prepare and file with the Commission a final base prospectus and a final
prospectus supplement relating to the Notes in accordance with the provisions
of Rule 430B of the Securities Act Regulations ("Rule 430B") and paragraph (b)
of Rule 424 of the Securities Act Regulations ("Rule 424(b)"). Any information
included in such base prospectus and prospectus supplement that was omitted
from such registration statement at the time it became effective but that is
deemed to be part of and included in such registration statement pursuant to
Rule 430B is referred to as "Rule 430B Information".
Such registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference pursuant to the Securities Act at such
time and documents otherwise deemed to be a part thereof or included therein
by the Securities Act Regulations, is herein called the "Registration
Statement".
"Base Prospectus" means the base prospectus included in the Registration
Statement, as amended at the time of the filing of the Prospectus.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus", as defined in Rule 433 of the Securities Act Regulations ("Rule
433"), relating to the Notes that (i) is required to be filed with the
Commission by the Depositor, (ii) is a "road show that is a written
communication" within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission, or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes
or of the offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Depositor's records pursuant to Rule
433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is intended for general distribution to prospective
investors, including but not limited to the Pricing Information.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
"Preliminary Prospectus" means the Base Prospectus and the Preliminary
Prospectus Supplement (including the information referred to under the caption
"Static Pool Data" therein regardless of whether such information is deemed a
part of the Registration Statement or Prospectus), used in connection with the
offering of the Notes, that omitted the Rule 430B Information and is used
prior to the filing of the Prospectus.
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"Preliminary Prospectus Supplement" means any preliminary prospectus
supplement included in the Preliminary Prospectus.
"Pricing Information" means the pricing information contained in Schedule
B hereto.
"Prospectus" means the prospectus supplement (including the information
referred to under the caption "Static Pool Data" therein regardless of whether
such information is deemed a part of the Registration Statement or Prospectus)
to the Base Prospectus that is first filed after the Time of Sale pursuant to
Rule 424(b) of the Securities Act Regulations, together with the Base
Prospectus, as amended at the time of such filing, including the documents
incorporated by reference therein pursuant to the Securities Act at the Time
of Sale.
"Prospectus Supplement" means the prospectus supplement to the Base
Prospectus included in the Prospectus.
At or prior to the time when sales to purchasers of the Notes were first
made by the Underwriters, which was approximately 10:00 a.m., New York City
time, on January 18, 2008 (the "Time of Sale"), the Depositor had prepared the
Preliminary Prospectus, dated January 18, 2008 (collectively, the "Time of
Sale Information").
If, at or subsequent to the Time of Sale and prior to the Closing Time,
such information included an untrue statement of material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and as
a result investors in the Notes may terminate their old "Contracts of Sale"
(as that term is used in Rule 159 under the Securities Act) for any Notes and
the Underwriters enter into new Contracts of Sale with investors in the Notes,
then "Time of Sale Information" will refer to the information conveyed to
investors at the time of entry into the first such new Contract of Sale in
connection with an amended Preliminary Prospectus approved by the Depositor
and the Representative that corrects such material misstatements or omissions
(a "Corrected Prospectus") and "Time of Sale" will refer to the time and date
on which such new Contracts of Sale were entered into.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the
Prospectus or any Corrected 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 are or are deemed to be incorporated by
reference in or otherwise deemed by the Securities Act Regulations to be a
part of or included in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Corrected Prospectus, as the case may be. All references
in this Agreement to the terms "amend", "amendments" or "supplements" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Prospectus or any Corrected Prospectus shall be deemed to mean
and include the filing of any documents under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the effective date (the
"Effective Date") of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus, the Prospectus or any Corrected
Prospectus, as the case may be, which are or are deemed to be incorporated by
reference therein or otherwise deemed by the Securities Act Regulations to be
a part thereof or
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included therein. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus, the
Corrected Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Depositor. The Depositor
represents and warrants to the Underwriters as of the date hereof, the Time of
Sale and as of the Closing Time referred to in Section 2(b) and agrees with
the Underwriters as follows:
(i) Compliance with Registration Requirements. The Depositor meets
the requirements for use of Form S-3 under the Securities Act. If the
Registration Statement contains the undertaking specified by Regulation
S-K Item 512(a), the Registration Statement, at the Time of Sale, meets
the requirements set forth in Rule 415(a)(1)(x). At the time the
Registration Statement was originally filed, at the earliest time
thereafter that the Depositor or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Securities Act
Regulations) of the Notes, at the date hereof and at the date the
Depositor delivers or causes to be delivered the Issuer General Use Free
Writing Prospectus, the Depositor was not, is not and will not be an
"ineligible issuer", as defined in Rule 405 of the Securities Act
Regulations.
(ii) Registration Statement, Prospectus and Disclosure at Time of
Sale.
(A) The Registration Statement became effective on November 27,
2006, and any post-effective amendment thereto also has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Depositor, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. The Indenture has
been duly qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act").
(B) At the respective times the Registration Statement and each
post-effective amendment thereto became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) and at the Closing Time, the Registration Statement
complied and will comply in all material respects with the
requirements of the Securities Act, the Securities Act Regulations,
the Trust Indenture Act and the rules and regulations of the
Commission under the Trust Indenture Act (the "Trust Indenture Act
Regulations") and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(C) When filed with the Commission, each Preliminary Prospectus
(including the prospectus and prospectus supplement filed as part of
the
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Registration Statement or any amendment thereto) complied when so
filed in all material respects with the Securities Act Regulations,
and each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(D) When filed with the Commission, the Prospectus shall
include all information with respect to the offering of the Notes
required by the Securities Act and the Securities Act Regulations
and shall be in all substantive respects in the form furnished to
the Representative prior to the Time of Sale or, to the extent not
completed at the Time of Sale, shall contain only such specific
additional information and other changes (beyond those contained in
the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have been previously furnished to the
Representative) as the Depositor has advised the Representative,
prior to the Time of Sale, will be included or made therein.
(E) Neither the Prospectus (or any Corrected Prospectus) nor
any amendment or supplement thereto, at the time the Prospectus (or
any Corrected Prospectus) or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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.
(F) As of the Time of Sale neither (1) the Time of Sale
Information, (2) the Pricing Information nor (3) any individual
Issuer Limited Use Free Writing Prospectus, when considered together
with the Time of Sale Information and the Pricing Information,
included any untrue statement of a material fact or omitted 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.
(G) Each Issuer Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the public
offer and sale of the Notes or until any earlier date that the
Depositor notified or notifies the Representative as described in
the next subsection, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference therein
and any Preliminary Prospectus or other prospectus deemed to be a
part thereof that has not been superseded or modified.
(H) If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a
material fact or omitted or would omit to state a material
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fact necessary in order to make the statements therein, in the light
of the circumstances prevailing at that subsequent time, not
misleading, the Depositor will promptly notify the Representative
and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or the Time of Sale
Information made in reliance upon and in conformity with the
Underwriters' Information (as defined in Section 7(a)) or the Swap
Counterparty Information (as defined in Section 7(a)).
(iii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations") and, when read together with the other
information in the Prospectus, at the Effective Date, at the Time of Sale
and at the Closing Time, did not and will not include an untrue statement
of a material fact required to be stated therein 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.
(iv) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement, the Time of
Sale Information and the Prospectus, except as otherwise set forth
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Depositor, whether or not arising in the ordinary course
of business, or in the ability of the Depositor to perform its
obligations under this Agreement and each Basic Document to which it is a
party (the "Depositor Agreements" and any such material adverse change, a
"Material Adverse Effect") and (B) there have been no transactions
entered into by the Depositor, other than those in the ordinary course of
business, which are material with respect to it.
(v) Due Organization of the Depositor. The Depositor has been duly
formed and is validly existing as a limited liability company under the
laws of the State of Nevada, and all filings required at the date hereof
under the Limited Liability Company Act of the State of Nevada (Chapter
86 of the Nevada Revised Statutes (2005)) (the "LLC Act") with respect to
the due formation and valid existence of the Depositor as a limited
liability company have been made; the Depositor has all requisite power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, any Preliminary
Prospectus and the Prospectus and to enter into and to perform its
obligations under each Depositor Agreement, this Agreement and the
Securities; 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 the ownership
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of property or the conduct of business, except where the failure to so
qualify or register or to be in good standing would not result in a
Material Adverse Effect.
(vi) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Depositor.
(vii) Authorization of Basic Documents. As of the Closing Time, each
Depositor Agreement will have been duly authorized, executed and
delivered by the Depositor, and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, will
constitute a valid and binding agreement of the Depositor, enforceable
against it in accordance with its terms, except as the enforcement
thereof may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) Issuance of the Notes. The Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes
have been duly authorized and, at the Closing Time, will have been duly
executed and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Trust, enforceable against the Trust
in accordance with their terms, except as the enforcement thereof may be
subject to or limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(ix) Issuance of the Certificates. The Certificates have been duly
authorized and, at the Closing Time, will have been duly executed and,
when authenticated, issued and delivered in the manner provided for in
the Trust Agreement, will be validly issued, fully paid, non-assessable
and outstanding and will be in the form contemplated by, and entitled to
the benefits of, the Trust Agreement.
(x) Description of the Securities and Basic Documents. The
Securities and the Basic Documents conform in all material respects to
the descriptions thereof and the statements relating thereto contained in
the Registration Statement, the Time of Sale Information, any Corrected
Prospectus and the Prospectus.
(xi) Absence of Defaults and Conflicts. The Depositor is not in
violation of its limited liability company agreement or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it is bound, or to which any of its
properties or assets is subject (collectively, the "Agreements and
Instruments"), except for violations or defaults that would not,
individually or in the aggregate, result in a Material
8
Adverse Effect; and the execution, delivery and performance by the
Depositor of the Depositor Agreements, this Agreement and the Securities,
the consummation of the transactions contemplated herein and therein, in
the Registration Statement and in the Prospectus and compliance by it
with its obligations hereunder and thereunder have been duly and validly
authorized by all necessary action and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, a default under, or result in the creation or
imposition of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively, "Liens") upon any of its
property or assets pursuant to the Agreements and Instruments except for
Liens permitted by the Basic Documents and conflicts, breaches or
defaults that, individually or in the aggregate, will not result in a
Material Adverse Effect, nor will such action result in any violation of
the provisions of its limited liability company agreement or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Depositor or any of its assets,
properties or operations.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending or, to the knowledge of
the Depositor, threatened, against or affecting the Depositor which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein or in a document incorporated by reference
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect its properties or assets; the aggregate of all pending
legal or governmental proceedings to which the Depositor is a party or of
which any of its properties or assets is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Time of Sale Information, the Prospectus or the documents incorporated by
reference therein which have not been so described and filed as required.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court, governmental authority or agency
or any other person is necessary in connection with the (A) issuance of
the Securities and the offering and sale of the Notes, (B) authorization,
execution, delivery and performance by the Depositor of the Depositor
Agreements and this Agreement or (C) consummation by the Depositor of the
transactions contemplated hereby or thereby, except such as have been
obtained and are in full force and effect as of the Closing Time.
(xv) Possession of Licenses and Permits. The Depositor possesses (or
at the Closing Time will possess) such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business
9
now operated by it; the Depositor is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect or render a material portion of
the Receivables unenforceable; and the Depositor has not received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect or would render a material portion of the
Receivables unenforceable.
(xvi) Title to Receivables; Payment of Fees. As of the Closing Time
and immediately prior to the transfer to the Trust, the Depositor will
have (a) good and marketable title to, and will be the sole owner of each
Receivable, free and clear of Liens other than the Lien in favor of the
Indenture Trustee under the Indenture and other Liens permitted by the
Basic Documents, and (b) paid or caused to have been paid all taxes, fees
and other governmental charges arising in connection with the
transactions contemplated by this Agreement, the Basic Documents and the
delivery of the Receivables.
(xvii) Investment Company Act. Neither the Depositor nor the Trust
is required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xviii) Incorporation of Representations and Warranties. The
representations and warranties of the Depositor in each Depositor
Agreement are true and correct in all material respects and are hereby
incorporated by reference herein and restated for the benefit of the
Underwriters with the same effect as if set forth in full herein.
(xix) Actions with Respect to the Receivables. At or before the
Closing Time the Depositor shall mark its accounting and other records,
if any, relating to the Receivables and shall cause the Originator and
the Master Servicer to mark their records (including computer records) to
show ownership by the Trust of the Receivables and none of the Depositor,
the Originator or the Master Servicer shall take any action inconsistent
with the ownership by the Trust of the Receivables other than as
permitted by the Basic Documents.
(b) Officer's Certificates. Any certificate signed by any officer of the
Depositor or any of its Affiliates and delivered at the Closing Time to the
Representative or to counsel for the Underwriters shall be deemed a
representation and warranty by the Depositor or such Affiliate, as the case
may be, to the Underwriters as to the matters covered thereby. When used in
this Agreement, the term "Affiliate" shall have the meaning assigned by Rule
501(b) of the Securities Act Regulations.
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Section 2. Sale and Delivery to the Underwriters; Closing.
(a) Purchase of the Notes. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Depositor agrees to sell to the Underwriters,
and the Underwriters severally agree to purchase from the Depositor, the
aggregate principal amount of Notes set forth opposite each Underwriter's name
on Schedule A at a purchase price equal to, in the case of (i) the Class A-1
Notes, 99.88000% of the principal amount thereof, (ii) the Class A-2a Notes,
99.80057% of the principal amount thereof, (iii) the Class A-2b Notes,
99.81000% of the principal amount thereof and (iv) the Class A-3 Notes,
99.73428% of the principal amount thereof.
(b) Payment. Payment of the purchase price, and delivery of the Notes
shall be made at the offices of the Depositor, 000 Xxxx Xxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or at such other place as shall be agreed
upon by the Representative and the Depositor, at 10:00 A.M. (New York time) on
January 24, 2008, or such other time not later than three business days after
such date as shall be agreed upon by the Representative and the Depositor
(such date and time of payment and delivery being called the "Closing Time"
and such date of payment and delivery, the "Closing Date"). Pursuant to Rule
15c6-1(d) of the Exchange Act Regulations, the parties hereto have agreed that
the Closing Time will be not less than three business days following the date
hereof.
Each class of Notes will initially be represented by one or more
certificates registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Notes will be represented by book entries on the records of DTC and
participating members thereof. Certificates for the Securities shall be made
available for examination by the Representative in Las Vegas, Nevada not later
than 10:00 A.M. (New York time) on the business day prior to the Closing Time.
Delivery of the Notes shall be made against payment of the purchase price
by wire transfer of immediately available funds to a bank account designated
by the Depositor.
Section 3. Covenants of the Depositor. The Depositor agrees with each
Underwriter and each Underwriter agrees with the Depositor, as applicable, as
follows:
(a) Compliance with Securities Act Regulations and Commission Requests.
The Depositor, subject to Section 3(b), will comply with the requirements of
Rules 424(b) and 430B, if and as applicable, and will notify the
Representative immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt
of any comments from the Commission, (iii) any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or otherwise
deemed to be a part thereof or for additional information, (iv) the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes and (v) the happening of any event
during the period referred to in Section 3(d) which, in the
11
judgment of the Depositor, makes the Registration Statement, the Time of Sale
Information, the Pricing Information or the Prospectus contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered or made
available to a purchaser, not misleading. The Depositor will effect the
filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take
such steps as it deems necessary to ascertain promptly whether the Prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Depositor will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Depositor will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement, any amendment, supplement or revision to either any preliminary
prospectus (including any prospectus included in the Registration Statement or
amendment thereto at the time it became effective) or to the Prospectus,
whether pursuant to the Securities Act, the Exchange Act or otherwise, and the
Depositor will furnish the Representative with copies of each such document a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representative
or counsel for the Underwriters shall object.
(c) Delivery of Registration Statement. The Depositor has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein or otherwise deemed to be a part thereof) and a signed copy of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
and of each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Offering Documents. The Depositor will deliver to each
Underwriter, without charge, as many copies of each Issuer Free Writing
Prospectus and Preliminary Prospectus as such Underwriter may reasonably
request, and the Depositor hereby consents to the use of such copies for
purposes permitted by the Securities Act. The Depositor will furnish to each
Underwriter, without charge, during the period when a prospectus is required
to be delivered under the Securities Act or the Exchange Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Depositor will comply
with the Securities Act and the Securities Act Regulations, the Exchange Act
and the Exchange Act Regulations and the Trust Indenture Act Regulations so as
to permit the completion of the
12
distribution of the Notes as contemplated in this Agreement, the Basic
Documents, the Registration Statement, the Time of Sale Information and the
Prospectus. If at any time when a prospectus is required by the Securities Act
to be delivered in connection with sales of the Notes, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or counsel to the Depositor, to amend the
Registration Statement or to amend or supplement the Prospectus in order that
the Registration Statement or the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the Securities Act or the Securities Act
Regulations, the Depositor will promptly prepare and file with the Commission,
subject to the review and approval provisions afforded to the Representative
described in Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements, the Depositor will use its best
efforts to have such amendment declared effective as soon as practicable and
the Depositor will furnish to the Underwriters, without charge, such number of
copies of such amendment or supplement as the Underwriters may reasonably
request. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time, not
misleading, the Depositor will promptly notify the Representative and will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(f) State Securities Law Qualifications. The Depositor will use its best
efforts, in cooperation with the Underwriters, in arranging for the
registration and qualification of the Notes for offering and sale and the
determination of their eligibility for investment, as the case may be, under
the laws of such jurisdictions as the Underwriters designate and will continue
to assist the Underwriters in maintaining such registrations and
qualifications in effect for a period of not less than one year from the date
of the Prospectus and in filing such consents to service of process or other
documents as may be necessary in order to effect such registrations and
qualifications; provided, however, that the Depositor shall not be obligated
to file any general consent to service of process or to qualify as a foreign
limited liability company or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
The Depositor will also supply the Underwriters with such information as is
necessary for the determination of the legality of the offering and sale of
the Notes for investment under the laws of such jurisdictions as the
Underwriters may reasonably request.
(g) Earnings Statement. The Depositor will timely file such reports
pursuant to the Exchange Act as are necessary in order to cause the Trust to
make generally available to holders of the Notes as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the
benefits contemplated by, the last paragraph of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
13
(h) Use of Proceeds. The Depositor shall cause the Trust to use the net
proceeds received by it from the sale of the Notes in the manner specified in
the Preliminary Prospectus and the Prospectus under "Use of Proceeds".
(i) Reports, Statements and Certificates. So long as any Notes are
outstanding, the Depositor shall deliver or cause to be delivered to the
Underwriters, as soon as copies become available, copies of (i) each Master
Servicer's Certificate, (ii) the annual statements of compliance, notice of an
Event of Default, notice of default by the Master Servicer, notice of a
Servicer Termination Event, notice of a default by the Administrator, annual
independent certified public accountants' reports and annual opinions of
counsel furnished to the Indenture Trustee or the Owner Trustee pursuant to
the Basic Documents, as soon as such statements, reports and opinions are
furnished to the Indenture Trustee or the Owner Trustee, as the case may be,
(iii) all documents of the Depositor or the Trust required to be filed with
the Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (iv) such other information concerning the Depositor, the Trust
or the Securities as the Underwriters may reasonably request from time to
time.
(j) Reporting Requirements. The Depositor, during the period when the
Prospectus is required to be delivered under the Securities Act or the
Exchange Act, will file all documents required to be filed with the Commission
pursuant to the Exchange Act within the time periods required by the Exchange
Act and the Exchange Act Regulations.
Section 4. Payment of Expenses.
(a) Expenses. The Depositor shall pay all of its own expenses incident to
the performance of its obligations under this Agreement, including without
limitation (i) the preparation, printing, filing and delivery of the
Registration Statement, any Issuer Free Writing Prospectus, the Preliminary
Prospectus, the Prospectus and each amendment or supplement thereto, (ii) the
preparation, reproduction and delivery to the Underwriters of this Agreement,
any agreement among the Underwriters, each Basic Document and each other
document as may be required in connection with the issuance and delivery of
the Securities or the offering, purchase or sale of the Notes, (iii) the
preparation, issuance and delivery of the certificates for the (A) Notes to
the Underwriters and (B) the Class A-4 Notes, Class B Notes, Class C Notes,
Class D Notes and Class E Notes and Certificates to the Depositor, (iv) the
fees and expenses of the counsel, accountants and other advisors of the
Depositor and any of its Affiliates in connection with the transactions
contemplated by this Agreement, (v) the qualification of the Notes under state
securities laws in accordance with the provisions of Section 3(f), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith, (vi) any fees and expenses of the
Indenture Trustee and the Owner Trustee, including the reasonable fees and
disbursements of their respective counsel in connection with the transactions
contemplated by this Agreement, (vii) any fees payable to Fitch, Inc.
("Fitch"), Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's
Ratings Services, a Division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
Poor's" and, together with Fitch and Moody's, the "Rating Agencies"), in
connection with the rating of the Notes and (viii) the costs and expenses
(including any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale
of the Notes made by the Underwriters caused by a breach of the representation
contained in Section 1(a)(ii)(F);
14
however, the Underwriters shall have provided notice to the Depositor prior to
reforming any contracts for sale of the Notes.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section
10(a)(i), the Depositor shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters are subject to the accuracy of the
representations and warranties of the Depositor contained in Section 1 and in
certificates of any officer of the Depositor or any of its Affiliates
delivered pursuant to the provisions hereof, to the performance by the
Depositor of its covenants and other obligations hereunder and to the
following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act and at the Closing Time no proceedings for that purpose shall
have been instituted or be pending or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel for the
Underwriters. A prospectus containing information relating to the description
of the Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule 424(b)
without reliance on Rule 424(b)(8) (or any required post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430B).
(b) Accountants' Comfort Letter. At the Closing Time, the Underwriters
and the Depositor shall have received from KPMG LLP a letter or letters dated
as of the Closing Date, in form and substance as previously agreed upon by the
Representative and otherwise satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to certain financial, statistical and other information contained
in or incorporated by reference into the Time of Sale Information and the
Prospectus.
(c) Officer's Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the Time of Sale Information, any
Material Adverse Effect with respect to the Depositor whether or not arising
in the ordinary course of business, and the Underwriters shall have received a
certificate, dated as of the Closing Date, of an authorized officer of the
Depositor to the effect that (i) there has been no such Material Adverse
Effect, (ii) the representations and warranties in Section 1(a) are true and
correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Depositor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Time and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted, are pending or, to the best of such officer's knowledge,
are threatened by the Commission.
15
(d) Opinion of In-House Counsel for the Originator. At the Closing Time,
the Underwriters and the Depositor shall have received the favorable opinion,
dated as of the Closing Date, of in-house counsel for the Originator, in form
and substance reasonably satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Originator has been duly organized and is validly existing
and in good standing as a California corporation, and has the requisite
power and authority to originate, purchase, hold, sell and service the
Receivables, to enter into and perform its obligations under each Basic
Document to which it is a party (collectively, the "Originator
Agreements") and to conduct its business as described in the Time of Sale
Information and the Prospectus.
(ii) Each Originator Agreement has been duly authorized, executed
and delivered by the Originator.
(iii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of any court or governmental
authority or agency or any other person is necessary or required by the
Originator in connection with the authorization, execution, delivery and
performance of any Originator Agreement or for the issuance, delivery,
offer or sale of the Securities, other than those which have already been
made, obtained or rendered.
(iv) The execution, delivery and performance by the Originator of
the Originator Agreements do not violate, result in a breach of or
constitute a default under (A) any term or provision of the articles of
association or bylaws of the Originator, (B) in any material respect, any
statute, order known to such counsel, rule or regulation of any court or
governmental agency or body having jurisdiction over the Originator or
(C) in any material respect, any indenture or other agreement or
instrument known to such counsel to which the Originator is a party or by
which it or any of its properties is bound.
(v) To the best of such counsel's knowledge and information, there
is no pending or threatened action, suit or proceeding before any court,
administrative agency or other tribunal (A) asserting the invalidity of
any Originator Agreement or (B) seeking to prevent the consummation by
the Originator of the transactions contemplated by any Originator
Agreement.
(vi) The Originator possesses such Governmental Licenses issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by the Originator;
the Originator is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a material adverse effect on the
financial condition or business affairs of the Originator; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
material adverse effect on the financial condition or business affairs of
the Originator or would not render a material portion of the Receivables
unenforceable; and, to the best of such counsel's knowledge, the
Originator has not
16
received any notice of proceedings against the Originator relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse effect on the
financial condition or business affairs of the Originator or would render
a material portion of the Receivables unenforceable.
(e) Opinion of Special Insolvency Counsel for the Originator. At the
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of Sidley Austin LLP, special insolvency counsel
to the Originator, in form and substance satisfactory to counsel for the
Underwriters, regarding (i) the conveyance of the Receivables by the
Originator to the Depositor constituting a "true sale"; and (ii) the
substantive consolidation of the assets and liabilities of the Originator with
those of the Depositor.
(f) Opinion of Local Counsel for the Originator. At the Closing Time, the
Underwriters and the Depositor shall have received the favorable opinion,
dated as of the Closing Date, of Xxxxxxxx Xxxxxxxxxx & Xxxxx LLP, special
California counsel for the Originator, in form and substance satisfactory to
counsel for the Underwriters, to the effect that (i) the form of contract used
in the State of California is sufficient to create a first priority perfected
security interest in a Financed Vehicle in the State of California in favor of
the Originator; and (ii) as to each security interest in a Financed Vehicle in
the State of California created by a Receivable originated in the State of
California, no filing or other action is necessary to perfect or continue the
perfected status of such security interest against creditors of or transferees
from the Obligor under such Receivable.
(g) Opinion of Special New York Counsel for the Originator. At the
Closing Time, the Underwriters and the Depositor shall have received the
favorable opinion, dated as of the Closing Date, of Sidley Austin LLP, special
New York counsel for the Originator, in form and substance satisfactory to
counsel for the Underwriters, to the effect that assuming due authorization,
execution and delivery by the parties thereto, each Basic Document to which
the Originator is a party and which is governed by the laws of the State of
New York, will constitute a valid and binding obligation of the Originator,
enforceable against the Originator in accordance with its terms, except that
such enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer and other similar laws
relating to or affecting creditors generally and to general equitable
principles (regardless of whether considered in a proceeding in equity or at
law), including concepts of commercial reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief.
(h) Opinion of Counsel for the Bank. At the Closing Time, the
Underwriters and the Depositor shall have received the favorable opinion,
dated as of the Closing Time, of in-house counsel of Wachovia Corporation, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Bank has been duly organized and is validly existing as a
national banking association under the law of the United States, and
continues to hold a valid certificate to transact business as such, and
has the requisite power and authority to service the Receivables, to
enter into and perform its obligations under each Basic
17
Document to which it is a party (collectively, the "Bank Agreements") and
to conduct its business as described in the Preliminary Prospectus and
the Prospectus.
(ii) Each Bank Agreement has been duly authorized, executed and
delivered by the Bank.
(iii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of any court or governmental
authority or agency or any other person is necessary or required by the
Bank in connection with the authorization, execution, delivery and
performance of any Bank Agreement or for the issuance, delivery, offer or
sale of the Securities, other than those which have already been made,
obtained or rendered.
(iv) The execution, delivery and performance by the Bank of the Bank
Agreements do not violate, result in a breach of or constitute a default
under (A) any term or provision of the articles of association or bylaws
of the Bank, (B) in any material respect, any statute, order known to
such counsel, rule or regulation of any court or governmental agency or
body having jurisdiction over the Bank or (C) in any material respect,
any indenture or other agreement or instrument known to such counsel,
after a limited, reasonable inquiry, to which the Bank is a party or by
which it or any of its properties is bound.
(v) To the best of such counsel's knowledge and information, there
is no pending or threatened action, suit or proceeding before any court,
administrative agency or other tribunal (A) asserting the invalidity of
any Bank Agreement or (B) seeking to prevent the consummation by the Bank
of the transactions contemplated by any Bank Agreement.
(i) Opinion of Special New York Counsel for the Bank. At the Closing
Time, the Underwriters and the Depositor shall have received the favorable
opinion, dated as of the Closing Time, of Sidley Austin LLP, special New York
counsel for the Bank, in form and substance satisfactory to counsel for the
Underwriters, to the effect that assuming due authorization, execution and
delivery by the parties thereto, each Basic Document to which the Bank is
party and which is governed by the laws of the State of New York, will
constitute a valid and binding obligation of the Bank, enforceable against the
Bank in accordance with its terms, except that such enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or
affecting creditors generally, and creditors of national banking associations
and financial institutions the accounts of which are insured by the Federal
Deposit Insurance Corporation in particular, and to general equitable
principles (regardless of whether considered in a proceeding in equity or at
law), including concepts of commercial reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief.
(j) Opinion of Counsel for the Depositor. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of Sidley Austin LLP, counsel for the Depositor, in form and
substance reasonably satisfactory to counsel for the Underwriters,
substantially to the effect that:
18
(i) Each of this Agreement and each Depositor Agreement has been
duly executed and delivered by the Depositor.
(ii) Assuming due authorization, execution and delivery by the
parties thereto (other than execution and delivery of each Depositor
Agreement by the Depositor), each Depositor Agreement other than the
Trust Agreement constitutes a valid and binding agreement, enforceable
against the Depositor in accordance with its terms, except as the
enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent transfer
and other similar laws relating to or affecting creditors' rights
generally and to general equitable principles (regardless of whether
considered in a proceeding in equity or at law), including concepts of
commercial reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief.
(iii) Assuming that the Notes have been duly executed and delivered
by the Trust, authenticated by the Indenture Trustee in accordance with
the Indenture and delivered against payment of the purchase price
therefor pursuant to this Agreement, the Notes will be validly issued and
entitled to the benefits of the Indenture and will constitute valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their terms, except as the enforcement thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or
affecting creditors' rights generally and to general equitable principles
(regardless of whether considered in a proceeding in equity or at law),
including concepts of commercial reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or
injunctive relief.
(iv) The Securities and the Basic Documents conform in all material
respects to the descriptions thereof and the statements relating thereto
contained in the Prospectus.
(v) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of any court or governmental
authority or agency or any other person is necessary or required by the
Depositor in connection with the authorization, execution, delivery and
performance of this Agreement or any Depositor Agreement or for the
issuance, sale or delivery of the Securities, other than those which have
already been made, obtained or rendered under the Securities Act, the
Securities Act Regulations, the Trust Indenture Act, the Trust Indenture
Act Regulations or those that may be required under the state securities
or blue sky laws of the various states, and except for the filing of
UCC-1 financing statements relating to the conveyance of the Receivables
and other Collateral from the Originator to the Depositor, from the
Depositor to the Trust and from the Trust to the Indenture Trustee, which
UCC financing statement filings are in the process of being made.
(vi) The statements in the Prospectus under the headings "Summary -
Tax Status", "Summary - ERISA Considerations", "Material Federal Income
Tax Consequences", "ERISA Considerations" and "Material Legal Issues
Relating to the Receivables", to the extent that they constitute matters
of law or legal conclusions with
19
respect thereto, have been prepared or reviewed by such counsel and
provide a fair summary in all material respects.
(vii) Neither the Trust nor the Depositor is required to register as
an "investment company" under the Investment Company Act.
(viii) The Indenture has been duly qualified under the Trust
Indenture Act.
(ix) The Receivables Purchase Agreement creates a valid security
interest in favor of the Depositor in the Receivables and the proceeds
thereof.
(x) The Sale and Servicing Agreement creates a valid security
interest in favor of the Trust in the Receivables and the proceeds
thereof.
(xi) The Indenture creates a valid security interest in favor of the
Indenture Trustee in the Receivables and the proceeds thereof.
(xii) The Registration Statement has become effective under the
Securities Act; the Prospectus has been filed pursuant to Rule 424(b) in
the manner and within the time period required by Rule 424(b) (without
reference to Rule 424(b)(8)); any required filing of each Issuer Free
Writing Prospectus pursuant to Rule 433 has been made in the manner and
within the time period required by Rule 433(d); and, to the best of such
counsel's knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted
or are pending or threatened by the Commission.
(xiii) The Registration Statement and the Prospectus (in each case
other than the (A) financial statements and supporting schedules and
other financial, numerical, statistical and quantitative information
included or incorporated by reference therein or omitted therefrom, (B)
documents incorporated or deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, pursuant to
Item 12 of Form S-3 and (C) Indenture Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which such counsel expresses no
opinion), as of their respective effective or issue dates, as the case
may be, each appeared on its face to be appropriately responsive in all
material respects with the applicable requirements of the Securities Act
and the Securities Act Regulations.
(k) Negative Assurances Letter from Special Counsel to the Depositor. At
the Closing Time, the Underwriters shall have received a letter, dated as of
the Closing Date, of Xxxxxx Xxxxxx LLP, counsel for the Depositor, in form and
substance satisfactory to counsel for the Underwriters, substantially to the
effect that such counsel has examined the Preliminary Prospectus and the
Prospectus and nothing has come to such counsel's attention that would lead
such counsel to believe that (i) the Time of Sale Information at the Time of
Sale, when considered together with the information omitted therefrom as
blanks but included in the Prospectus, included an untrue statement of a
material fact or omitted 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; and (ii) the Prospectus, as of its date or on the
Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material
20
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading other than, in each
case (i) and (ii), information relating to the financial statements and
schedules and other financial, numerical, statistical and quantitative
information, in each case included therein or omitted from the Preliminary
Prospectus or the Prospectus, any exhibits, schedules or annexes to the
Preliminary Prospectus or the Prospectus, the Form T-1 and additionally in the
case of (i), the omission of pricing and price-dependent information, which
information shall appear only in the Prospectus.
(l) Opinion of In-House Counsel for the Depositor. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of in-house counsel for the Originator and counsel to the
Depositor, in form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The execution, delivery and performance by the Depositor of the
Depositor Agreements do not violate, result in a breach of or constitute
a default under (A) any term or provision of the certificate of formation
or limited liability company agreement of the Depositor, (B) in any
material respect, any statute, order known to such counsel, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Depositor or (C) in any material respect, any
indenture or other agreement or instrument known to such counsel to which
the Depositor is a party or by which it or any of its properties is
bound.
(ii) To the best of such counsel's knowledge and information, there
is no pending or threatened action, suit or proceeding before any
administrative agency or other tribunal (A) asserting the invalidity of
any Depositor Agreement or (B) seeking to prevent the consummation by the
Depositor of the transactions contemplated by any Depositor Agreement.
(iii) To the best of such counsel's knowledge and information, no
default by the Depositor exists in the due performance or observance of
any obligation, agreement, covenant or condition contained in the
Agreements and Instruments, except for defaults that would not result in
a Material Adverse Effect.
(m) Opinion of Special Nevada Counsel for the Depositor. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, special Nevada counsel for the
Depositor, in form and substance reasonably satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Depositor has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the State
of Nevada.
(ii) The Operating Agreement of the Depositor, dated as of February
27, 2006, (the "Depositor LLC Agreement"), by the Originator (in such
capacity, the "Member"), as the sole equity member of the Depositor, and
the special members named therein, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member in
accordance with its terms, except as the enforcement thereof may be
subject to the effect upon the Depositor LLC Agreement of bankruptcy,
insolvency,
21
fraudulent transfer, fraudulent conveyance, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally and principles
of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity
or at law).
(iii) Under the LLC Act and the Depositor LLC Agreement, the
bankruptcy or dissolution of the Member will not, by itself, cause the
Depositor to be dissolved or its affairs to be wound up.
(iv) Under the LLC Act, creditors of the Member may only claim
against the Member's ownership interest and have no direct claim to any
assets of the Depositor.
(v) Under the LLC Act, the Depositor has perpetual existence until
articles of dissolution are filed with the Secretary of State and the
Depositor is a separate legal entity.
(vi) Under the LLC Act and the Depositor LLC Agreement, the
Depositor has all necessary limited liability company power and authority
to execute and deliver this Agreement and the Depositor Agreements, and
to perform its obligations under this Agreement and the Depositor
Agreements.
(vii) Under the LLC Act and the Depositor LLC Agreement, the
execution and delivery by the Depositor of this Agreement and the
Depositor Agreements, and the performance by the Depositor of its
obligations hereunder and thereunder, have been duly authorized by all
necessary limited liability company action on the part of the Depositor.
(viii) The execution and delivery by the Depositor of this Agreement
and the Depositor Agreements, and the performance by the Depositor of its
obligations hereunder and thereunder, do not violate (A) any Nevada law,
rule or regulation or (B) the LLC Act or the Depositor LLC Agreement.
(ix) No authorization, consent, approval or order of any Nevada
court or any Nevada governmental or administrative body is required to be
obtained by the Depositor solely in connection with the execution and
delivery by the Depositor of this Agreement and the Depositor Agreements
or the performance by the Depositor of its obligations hereunder and
thereunder.
(x) The financing statement on form UCC-1, naming the Depositor as
debtor, the Trust as secured party/assignor and the Indenture Trustee as
secured party/assignee (the "Depositor Financing Statement") is in an
appropriate form for filing in the State of Nevada and has been duly
filed in the appropriate filing office in the State of Nevada and the
fees and document taxes, if any, payable in connection with the filing of
the Depositor Financing Statement have been paid in full.
(xi) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the State of Nevada on the date hereof (the "Nevada UCC") is
applicable (without regard to conflict of laws principles), (i) the Trust
has a perfected security interest in the Depositor's rights in that
portion of the Trust property described in the Depositor
22
Financing Statement that may be perfected by the filing of a UCC
financing statement with the Nevada Secretary of State (the "Secretary of
State") (the "Depositor Filing Collateral") and the proceeds (as defined
in Section 9-102 (111) of the Nevada UCC) thereof, and (ii) such security
interest will be prior to any other security interest granted to any
other secured party in the Depositor Filing Collateral granted by the
Depositor that is perfected solely by the filing of financing statements
with the Secretary of State under the Nevada UCC. We note that, pursuant
to the Indenture, the Trust has assigned such security interest to the
Indenture Trustee.
(xii) The search report from the Secretary of State showing certain
items filed against the Depositor as debtor dated approximately January
18, 2008 (the "Depositor Search Report") sets forth the proper filing
office and the proper debtor necessary to identify those Persons who
under the Nevada UCC have on file financing statements against the
Depositor covering the Depositor Filing Collateral dated as of January
18, 2008. The Depositor Search Report identifies no secured party who has
on file with the Secretary of State a currently effective financing
statement naming the Depositor as debtor and describing the Depositor
Filing Collateral.
(n) Opinion of Special Federal Income Tax Counsel for the Depositor. At
the Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of Sidley Austin LLP, special Federal income tax
counsel to the Depositor, in form and substance satisfactory to counsel for
the Underwriters, to the effect that, for federal income tax purposes, (A) the
Notes will be characterized as debt if held by Persons other than the
beneficial owner of the equity interest in the Trust and (B) the Trust will
not be an association (or a publicly traded partnership) taxable as a
corporation.
(o) Opinion of Special Delaware Counsel for the Trust. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Date, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
for the Trust, in form and substance reasonably satisfactory to counsel for
the Underwriters, substantially to the effect that:
(i) The Trust has been duly formed and is validly existing as a
statutory trust pursuant to the laws of the State of Delaware, 12 Del. C.
xx.xx. 3801, et seq. (the "Statutory Trust Act"), and has the power and
authority under the Trust Agreement and the Statutory Trust Act to
execute, deliver and perform its obligations under the Basic Documents to
which the Trust is a party, to issue the Certificates and the Notes and
to grant the Trust property to the Indenture Trustee as security for the
Notes.
(ii) The Basic Documents to which the Trust is a party and the Notes
have been duly authorized by the Trust.
(iii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Depositor and the Owner Trustee, enforceable against
the Depositor and the Owner Trustee in accordance with its terms, except
as the enforcement thereof may be subject to applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, fraudulent transfer
and similar laws relating to and affecting the rights and remedies of
creditors generally, principles of equity, including applicable law
relating to fiduciary duties
23
(regardless of whether considered and applied in a proceeding in equity
or at law) and applicable public policy with respect to the
enforceability of provisions relating to indemnification or contribution.
(iv) The Certificates have been duly authorized by the Trust and,
when executed by the Trust, authenticated by the Owner Trustee and
delivered to the purchasers thereof in accordance with the Trust
Agreement, the Certificates will be validly issued and outstanding and
entitled to the benefits of the Trust Agreement.
(v) Neither the execution, delivery and performance by the Trust of
the Basic Documents to which the Trust is a party or the Securities, nor
the consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of
Delaware, other than the filing of the Certificate of Trust with the
Secretary of State pursuant to the Trust Agreement and the filing of a
financing statement on form UCC-1 with the Secretary of State pursuant to
the Indenture.
(vi) Neither the execution, delivery and performance by the Trust of
the Basic Documents to which the Trust is a party or the Securities, nor
the consummation by the Trust of the transactions contemplated thereby,
will conflict with or result in a breach of, or constitute a default
under the provisions of the Trust Agreement or any law, rule or
regulation of the State of Delaware applicable to the Trust or, its
properties or, to such counsel's knowledge without independent
investigation, any indenture, mortgage, contract or other agreement or
instrument to which the Trust is a party or by which it is bound.
(vii) Under Section 3805(b) of the Statutory Trust Act, no creditor
of any holder of a Certificate (each a "Certificateholder") shall have
any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the Trust property except in
accordance with the terms of the Trust Agreement and except as the
enforcement thereof may be subject to applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent transfer and similar
laws relating to and affecting the rights and remedies of creditors
generally, principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law) and applicable public policy with respect
to the enforceability of provisions relating to indemnification or
contribution.
(viii) Under Section 3805(c) of the Statutory Trust Act, except to
the extent otherwise provided in the Trust Agreement, a Certificateholder
has no interest in specific trust property, except as the enforcement
thereof may be subject to applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent transfer and similar laws
relating to and affecting the rights and remedies of creditors generally,
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law) and applicable public
24
policy with respect to the enforceability of provisions relating to
indemnification or contribution.
(ix) Under Section 3808(a) and (b) of the Statutory Trust Act, the
Trust may not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder shall not
result in the termination or dissolution of the Trust, except to the
extent otherwise provided in the Trust Agreement and except as the
enforcement thereof may be subject to applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent transfer and similar
laws relating to and affecting the rights and remedies of creditors
generally, principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law) and applicable public policy with respect
to the enforceability of provisions relating to indemnification or
contribution.
(x) Under the Statutory Trust Act, the Trust is a separate legal
entity and, assuming that the Sale and Servicing Agreement conveys good
title to the Trust property to the Trust as a contribution and not as a
security arrangement, the Trust rather than the Certificateholders will
hold whatever title to the Trust property as may be conveyed to it from
time to time pursuant to the Sale and Servicing Agreement, except to the
extent that the Trust has taken action to dispose of or otherwise
transfer or encumber any part of the Trust property and, except as the
enforcement thereof may be subject to applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent transfer and similar
laws relating to and affecting the rights and remedies of creditors
generally, principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law) and applicable public policy with respect
to the enforceability of provisions relating to indemnification or
contribution.
(xi) To the extent that Article 9 of the UCC as in effect in the
State of Delaware is applicable (without regard to conflicts of laws
principles), and assuming that the security interest created by the
Indenture in the Collateral has been duly created and has attached, upon
the filing of the Financing Statement with the Delaware Secretary of
State, the Indenture Trustee will have a perfected security interest in
the Trust's rights in that portion of the Collateral described in the
Financing Statement that constitutes "chattel paper", "general
intangibles" or "accounts" (as such terms are defined in the UCC) and the
proceeds (as defined in Section 9-102(a)(64) of the UCC) thereof; and
such security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of financing
statements under the UCC, subject to Section 9-103 of the UCC (with
respect to purchase money security interests) and Section 9-315 of the
UCC (with respect to temporarily perfected security interests in
proceeds).
(p) Opinion of Special New York Counsel for the Trust. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Date, of Xxxxxx Xxxxxx LLP, special New York counsel for the
Trust, in form and substance satisfactory to counsel for the Underwriters
regarding the perfection of the Indenture Trustee's security interest by
control (as defined in Section 8-106 of the New York UCC) of the security
entitlements in the Trust Accounts.
25
(q) Opinion of Special New York Counsel to the Trust. At the Closing
Time, the Underwriters and the Depositor shall have received the favorable
opinion, dated as of the Closing Date, of Xxxxxx Xxxxxx LLP, special New York
counsel to the Trust, in form and substance satisfactory to counsel for the
Underwriters, to the effect that each Basic Agreement governed by the laws of
the State of New York, to which the Trust is a party, assuming the due
authorization, execution and delivery thereof by the parties thereto, will
constitute a valid and binding agreement of the Trust, enforceable against it
in accordance with its terms, except as the enforcement thereof may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(r) Opinion of Counsel for the Indenture Trustee. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxx & Xxxxxxx LLP, counsel for the Indenture Trustee, in
form and substance reasonably satisfactory to counsel for the Underwriters,
substantially to the effect that:
(i) The Indenture Trustee has been duly formed and is validly
existing as a national banking association under the laws of the United
States.
(ii) The Indenture Trustee, at the time of its execution and
delivery of the Indenture, had full power and authority to execute and
deliver the Basic Documents to which the Indenture Trustee is a party
(collectively, the "Indenture Trustee Agreements") and has full power and
authority to perform its obligations thereunder.
(iii) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting
the Indenture Trustee before or by any court, arbitrator, administrative
agency or other governmental authority which, if adversely decided, would
materially and adversely affect the ability of the Indenture Trustee to
carry out the transactions contemplated in the Indenture Trustee
Agreements.
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of
the United States of America or any state thereof was or is required for
the execution, delivery or performance by the Indenture Trustee of the
Indenture Trustee Agreements.
(v) Each of the Indenture Trustee Agreements has been duly and
validly authorized, executed and delivered by the Indenture Trustee and
constitutes a legal, valid and binding obligation of the Indenture
Trustee enforceable against the Indenture Trustee in accordance with its
respective terms, except that certain of such obligations may be
enforceable solely against the Collateral and except that such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the enforcement
of creditors' rights generally, and by general principles of equity,
including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
26
(vi) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the terms of the Indenture.
(s) Opinion of Counsel for the Owner Trustee. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel for the Owner
Trustee, in form and substance reasonably satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Owner Trustee has been duly formed and is validly existing
as a national banking association under the laws of the United States.
(ii) The Owner Trustee, at the time of its execution and delivery of
the Indenture, had full power and authority to execute and deliver the
Basic Documents to which the Owner Trustee is a party (collectively, the
"Owner Trustee Agreements") and has full power and authority to perform
its obligations thereunder.
(iii) The Owner Trustee has duly executed and delivered each Basic
Document to which the Trust is a party and the Notes on behalf of the
Trust in accordance with the authorization contained in the Trust
Agreement.
(iv) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware or of the United States
having jurisdiction over the banking or trust powers of the Owner Trustee
is required by or with respect to the Owner Trustee for the valid
execution, delivery and performance of the Trust Agreement, the valid
execution and delivery by the Owner Trustee on behalf of the Trust of the
Basic Documents to which the Trust is a party, or for the validity or
enforceability thereof, other than the filing of the Certificate of Trust
with the Delaware Secretary of State.
(v) Each of the Owner Trustee Agreements has been duly and validly
authorized, executed and delivered by the Owner Trustee and constitutes a
legal, valid and binding obligation of the Owner Trustee enforceable
against the Owner Trustee in accordance with its respective terms, except
that certain of such obligations may be enforceable solely against the
Collateral and except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(vi) Neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, the execution and delivery by the Owner
Trustee on behalf of the Trust of the Basic Documents to which the Trust
is a party, nor the consummation of the transactions contemplated
thereby, nor compliance with the terms thereof, will conflict with or
result in a breach of, or constitute a default under the charter or
bylaws of the Owner Trustee or any law, rule or regulation of the State
of Delaware or of the United States governing the banking or trust powers
of the Owner Trustee or, to such counsel's
27
knowledge, without independent investigation, any judgment or order of
the State of Delaware or of the United States applicable to the Owner
Trustee or its properties or, to such counsel's knowledge, without
independent investigation, any indenture, mortgage, contract or other
agreement or instrument to which the Owner Trustee is a party or by which
it is bound.
(vii) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority of the State of Delaware which, if adversely
determined, would materially and adversely affect the ability of the
Owner Trustee to carry out the transactions contemplated by the Trust
Agreement.
(t) Opinion of Counsel for the Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Date, of Dechert LLP, counsel for the Underwriters, in form and
substance satisfactory to the Underwriters. In rendering such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel reasonably satisfactory to the
Underwriters.
(u) Reliance Letters. At the Closing Time, counsel to the Depositor shall
provide reliance letters to the Underwriters relating to each legal opinion
relating to the transaction contemplated hereby rendered to the Indenture
Trustee, the Owner Trustee or any Rating Agency.
(v) Maintenance of Rating. At the Closing Time, the Class A-1 Notes shall
be rated by each Rating Agency in its highest short-term rating category and
the Class A-2a Notes, Class A-2b Notes and Class A-3 Notes shall be rated in
the highest rating category by each Rating Agency and the Depositor shall have
delivered to the Underwriters a letter dated the Closing Date from each Rating
Agency, or other evidence satisfactory to the Representative, confirming that
the Notes have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Notes.
(w) Officer's Certificates. At the Closing Time, a certificate of the
Secretary, an Assistant Secretary or a Vice President of the Depositor, the
Bank and the Originator, dated as of the Closing Date, certifying as to the
accuracy of the representations and warranties in each of the Basic Documents
to which the Depositor, the Bank or the Originator is a party.
(x) Additional Rating Agency Requirements. The Depositor will, to the
extent, if any, that the ratings provided with respect to the Notes by any
Rating Agency are conditioned upon the furnishing or the taking of any other
actions by the Depositor or an Affiliate thereof, furnish such documents and
take, or cause to be taken, all such other actions.
(y) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the
issuance of the Securities and the sale of the Notes as herein contemplated,
or in order to evidence the accuracy of any of the representations or
warranties or the fulfillment of any of the conditions herein contained; and
all proceedings taken by
28
the Depositor in connection with the foregoing shall be reasonably
satisfactory in form and substance to counsel for the Underwriters.
(z) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Depositor at
any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that this Section and Sections 1, 7, 8, 9, 10 and 14
shall survive any such termination and remain in full force and effect.
Section 6. Written Communications.
(a) The following terms have the specified meanings for purposes of this
Agreement:
(i) "Derived Information" means such written information (including
any Intex CDI file) regarding the Notes as is disseminated by any
Underwriter to a potential investor, which information is neither (A)
Issuer Information nor (B) contained in (1) the Registration Statement,
the Preliminary Prospectus, the Prospectus or any amendment or supplement
to any of them, taking into account information incorporated therein by
reference (other than information incorporated by reference from any
information regarding the Notes that is disseminated by any Underwriter
to a potential investor) or (2) any computer tape in respect of the Notes
or the related receivables furnished by the Depositor to any Underwriter.
(ii) "Issuer Information" has the meaning given to such term in Rule
433(h)(2) and footnote 271 of the Commission's Securities Offering Reform
Release No. 33-8591 of the Securities Act, and shall also include any
information in any Issuer Free Writing Prospectus or in any Underwriter
Free Writing Prospectus prepared or approved by the Depositor.
(iii) "Underwriter Free Writing Prospectus" means "written
communications" (as defined in Rule 405 under the Securities Act)
containing no more than the following: (1) information included in the
Preliminary Prospectus with the consent of the Depositor (except as
provided in clauses (2) through (5) below), (2) information relating to
the class, size, rating, price, CUSIPs, coupon, yield, spread, benchmark,
status and/or legal maturity date of the Notes, the weighted average
life, expected final payment date, trade date, settlement date and
payment window of one or more classes of Notes and the underwriters for
one or more classes of the Notes, (3) the eligibility of the Notes to be
purchased by XXXXX plans, (4) a column or other entry showing the status
of the subscriptions for the Notes (both for the issuance as a whole and
for each Underwriter's retention) and/or expected pricing parameters of
the Notes and (5) any Derived Information.
(b) The Depositor will not disseminate to any potential investor any
information relating to the Securities that constitutes a "written
communication" within the meaning of Rule 405 under the Securities Act, other
than the Time of Sale Information, the Pricing Information and the Prospectus,
unless the Depositor has obtained the prior consent of the Representative.
29
(c) Neither the Depositor nor any Underwriter shall disseminate or file
with the Commission any information relating to the Notes in reliance on Rule
167 or 426 under the Securities Act, nor shall the Depositor or any
Underwriter disseminate any Underwriter Free Writing Prospectus "in a manner
reasonably designed to lead to its broad unrestricted dissemination" within
the meaning of Rule 433(d) under the Securities Act.
(d) Each Underwriter Free Writing Prospectus shall bear the following
legend, or a substantially similar legend that complies with Rule 433 under
the Securities Act:
The Depositor has filed a registration statement (including a prospectus)
with the SEC for the offering to which this communication relates. Before
you invest, you should read the prospectus in that registration statement
and other documents the Depositor has filed with the SEC for more
complete information about the Depositor, the issuing trust, and this
offering. You may get these documents for free by visiting XXXXX on the
SEC Website at xxx.xxx.xxx. Alternatively, the Depositor, any underwriter
or any dealer participating in the offering will arrange to send you the
prospectus if you request it by calling 0-000-000-0000.
The information in this free writing prospectus supersedes information
contained in any prior similar free writing prospectus relating to these
securities prior to the time of your commitment to purchase.
(e) In the event the Depositor becomes aware that, as of any Time of
Sale, any Time of Sale Information with respect thereto contains or contained
any untrue statement of material fact or omits or omitted to state a material
fact necessary in order to make the statements contained therein (when read in
conjunction with all Time of Sale Information) in the light of the
circumstances under which they were made, not misleading (a "Defective
Prospectus"), the Depositor shall promptly notify the Representative of such
untrue statement or omission no later than one business day after discovery
and the Depositor shall, if requested by the Representative, prepare and
deliver to the Underwriters a Corrected Prospectus.
(f) Each Underwriter represents, warrants, covenants and agrees with the
Depositor that:
(i) Other than the Time of Sale Information, the Pricing Information
and the Prospectus, it has not made, used, prepared, authorized, approved
or referred to and will not prepare, make, use, authorize, approve or
refer to, in any communications with potential investors, any "written
communication" (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Notes, including but not limited to any "ABS informational and
computational materials" as defined in Item 1101(a) of Regulation AB
under the Securities Act; provided, however, that (A) each Underwriter
may prepare and convey one or more Underwriter Free Writing Prospectuses,
and may convey the Registration Statement, any Corrected Prospectus and
Time of Sale Information, including via Bloomberg; (B) unless otherwise
consented to by the Depositor, no such Underwriter Free Writing
Prospectus shall be conveyed if, as a result of such conveyance, the
Depositor or the Trust shall be required to make any registration or
other filing solely as a result of such Underwriter Free
30
Writing Prospectus pursuant to Rule 433(d) under the Securities Act other
than the filing of the final terms of the Notes pursuant to Rule
433(d)(5) of the Securities Act; and (C) each Underwriter will be
permitted to provide confirmations of sale.
(ii) In disseminating information to prospective investors, it has
complied and will continue to comply fully with the Rules and
Regulations, including but not limited to Rules 164 and 433 under the
Securities Act and the requirements thereunder for filing and retention
of any "free writing prospectus", as defined in Rule 405 under the
Securities Act (each a "Free Writing Prospectus"), including retaining
any Underwriter Free Writing Prospectuses they have used but which are
not required to be filed for the required period.
(iii) Prior to entering into any Contract of Sale, it shall convey
the Preliminary Prospectus and any Issuer General Use Free Writing
Prospectus to the prospective investor. The Underwriter shall maintain
sufficient records to document its conveyance of such information to the
potential investor prior to the formation of the related Contract of Sale
and shall maintain such records as required by the Rules and Regulations.
(iv) If a Defective Prospectus has been corrected with a Corrected
Prospectus, it shall (A) deliver the Corrected Prospectus to each
investor with whom it entered into a Contract of Sale and that received
the Defective Prospectus from it prior to entering into a new Contract of
Sale with such investor, (B) notify such investor in a prominent manner
that the prior Contract of Sale with the investor, if any, has been
terminated and of the investor's rights as a result of such agreement and
(C) provide such investor with an opportunity to elect to enter into or
not enter into a new Contract of Sale based on the information set forth
in the Corrected Prospectus.
(v) Immediately following the use of any Underwriter Free Writing
Prospectus containing any Issuer Information, it has provided the
Depositor a copy of such Underwriter Free Writing Prospectus, unless such
Issuer Information consists of the terms of the Notes or such information
is not the final information to be included in the Prospectus Supplement.
(g) The Depositor shall file with the Commission, within the applicable
period of time required under the Securities Act and the Rules and
Regulations, any Free Writing Prospectus delivered to investors in accordance
with this Section, that the Depositor is required to file under the Securities
Act and the Rules and Regulations. The Depositor shall file with the
Commission the final terms of the Notes pursuant to Rule 433(d)(5) of the
Securities Act.
Section 7. Indemnification.
(a) Indemnification of Underwriters. The Depositor and the Originator
severally and jointly 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 or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
31
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included
in the Time of Sale Information or the Pricing Information at the Time of
Sale, or the Prospectus (or any amendment or supplement thereto) as of
its date and as of the Closing Date, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d)) any such settlement is effected with the written consent of the
Depositor and the Originator; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever, based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Depositor (A) by the Underwriters through the
Representative, expressly for use in the Registration Statement (or any
amendment thereto), any preliminary prospectus, including the Rule 430B
Information or any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto), it being understood and agreed that
the only such information furnished by the Representative consists of the
following information under the caption "Underwriting" in the Prospectus
Supplement, the (i) concession and reallowance figures appearing in the
second table and (ii) information in the fourth paragraph insofar as it
relates to market-making transactions (collectively, the "Underwriters'
Information") or (B) by the Bank, expressly for use in the Registration
Statement (or any amendment thereto), any preliminary prospectus,
including the Rule 430B Information or any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto) and set forth
in the first paragraph under the caption "The Swap Counterparty" in the
Prospectus Supplement (the "Swap Counterparty Information"); and provided
further that the foregoing indemnity agreement with respect to the Time
of Sale Information shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting
any such losses, claims, damages or liabilities purchased Notes, where it
shall have been determined by a court of competent jurisdiction by final
32
and nonappealable judgment that (i) the original Preliminary Prospectus
or any other Time of Sale Information contained an untrue statement of
material fact or omitted to state therein a material fact required to be
stated therein in order to make the statements therein not misleading,
(ii) such untrue statement or omission of a material fact was corrected
in a Corrected Prospectus and such Corrected Prospectus was provided to
such Underwriter far enough in advance of the Time of Sale so that such
Corrected Prospectus could have been conveyed to such person prior to the
Time of Sale, (iii) such Corrected Prospectus was not conveyed to such
person by such Underwriter at or prior to the Time of Sale, and (iv) such
loss, claim, damage or liability would not have occurred had the
Corrected Prospectus been conveyed to such person contrary to clause
(iii) above.
(b) Indemnification of the Depositor and the Originator. The Underwriters
severally and not jointly agree to indemnify and hold harmless the Depositor
and the Originator and each person, if any, who controls the Depositor or the
Originator within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 7(a), as incurred, but
only with respect to untrue statements or omissions, of material facts or
alleged untrue statements or omissions, made in the Prospectus (or any
amendment thereto), any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Registration Statement (or any amendment or supplement
thereto), in reliance upon and in conformity with the Underwriters'
Information.
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
7(a), counsel to the indemnified parties shall be selected by the
Underwriters, and, in the case of parties indemnified pursuant to Section
7(b), counsel to the indemnified parties shall be selected by the Depositor
and the Originator. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section or Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
33
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
by Section 7(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
Section 8. Contribution. If the indemnification provided for in Section 7
is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor and the
Originator on the one hand and the Underwriters on the other hand from the
offering of the Notes pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 Depositor and the
Originator on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Depositor and the Originator on the
one hand and the Underwriters on the other hand in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses) received by the
Depositor and the Originator and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate initial public
offering prices of the Notes. The relative fault of the Depositor and the
Originator on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such 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 Depositor, the
Originator or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Depositor, the Originator and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this
Section shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever, based upon
any such untrue or alleged untrue statement or omission or alleged omission.
34
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter in respect
of the Notes underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission. The Underwriters' respective obligations to contribute
pursuant to this Section are (i) several and not joint and (ii) subject to the
preceding sentence, in proportion to the principal amount of Notes set forth
opposite their respective names in Schedule A.
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.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Depositor or the
Originator within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as the
Depositor or the Originator.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Depositor and its Affiliates
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
any controlling person, or by or on behalf of the Depositor and its
Affiliates, and shall survive delivery of the Notes to the Underwriters.
Section 10. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Depositor, at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus or the
Time of Sale Information, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Depositor or the Bank, whether or not arising in the ordinary
course of business, (ii) if there has occurred any material adverse change in
the financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Representative, impracticable or
inadvisable to market the Notes or to enforce contracts for the sale of the
Notes, (iii) if trading in any securities of the Bank or any of its Affiliates
has been suspended or materially limited by the Commission or if trading
generally on the American Stock Exchange, the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, (iv) a material disruption has occurred
in commercial banking or
35
securities settlement or clearing services in the United States or (v) if a
banking moratorium has been declared by Federal, North Carolina or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that this Section
and Sections 1, 5(z), 7, 8, 9 and 14 shall survive such termination and remain
in full force and effect.
Section 11. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Notes which it
or they are obligated to purchase (the "Defaulted Notes"), then the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Notes
in such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representative shall not have completed such arrangements within
such 24 hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not exceed
10% of the aggregate principal amount of the Notes to be purchased on such
date, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations in Schedule A bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10% of
the aggregate principal amount of Notes to be purchased on such date, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement either the Representative or the Depositor shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 12. 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. Notices to the
Underwriters shall be directed to the Representative at One Wachovia Center,
000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0610, attention of Xxxxxx X. Xxxxx; notices to the Depositor shall be
directed to it at 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000;
and notices to the Originator shall be directed to it at 00 Xxxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, attention to Xxx Xx Xxxx.
Section 13. Parties. This Agreement shall inure to the benefit of and be
binding upon each Underwriter, the Depositor, the Originator 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 Depositor, the Originator and their respective
successors and the controlling persons, directors and officers referred to in
Sections 7 and 8 and their heirs and legal representatives any legal or
equitable right, remedy or claim under
36
or in respect of 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 Underwriters, the Depositor, the Originator
and their respective successors, and the controlling persons, directors and
officers referred to in Sections 7 and 8 and their heirs and legal
representatives and for the benefit of no other person, firm or corporation.
No purchaser of Notes from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction hereof.
Section 16. USA Patriot Act Notification and Important Information about
Entering into a Business Relationship with Wachovia. To help fight the funding
of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify and record information that
identifies each person or corporation who opens an account or enters into a
business relationship.
Section 17. Fiduciary Duties. The Depositor and the Originator on behalf
of themselves and their Affiliates, hereby acknowledges that in connection
with the offering of the Notes and the transactions related thereto, as
contemplated herein and in the other Basic Documents, and the discussions and
negotiations of the purchase price thereof set forth in this Agreement: (a)
the Underwriters and the Representative have acted at arms length, are not
agents of or advisors to, and owe no fiduciary duties to, any of the Trust,
the Depositor, the Originator or any other Person; (b) the Underwriters and
the Representative owe the Trust, the Depositor and the Originator only those
contractual duties as are set forth in this Agreement and (c) the Underwriters
and the Representative may have interests that differ from those of any of the
Trust or the Depositor or the Originator. Each of the Trust, the Depositor and
the Originator on behalf of themselves and their respective Affiliates hereby
waives to the full extent permitted by applicable law any claims it may have
against the Underwriters and the Representative arising from an alleged breach
of fiduciary duty in connection with the offering of the Notes and the
transactions related thereto, as contemplated herein and in the other Basic
Documents, including the discussions and negotiations of the purchase price
thereof set forth in this Agreement.
Section 18. European Economic Area. In relation to each Relevant Member
State of the European Economic Area which has implemented the Prospectus
Directive, each Underwriter hereby represents and agrees that with effect from
and including the "Relevant Implementation Date" for such Relevant Member
State, which is the date on which the Prospectus Directive is implemented in
that Relevant Member State, it has not made and will not make an offer of
Notes to the public in that Relevant Member State except that it may, with
37
effect from and including the Relevant Implementation Date, make an offer of
Notes to the public in that Relevant Member State:
(a) if the final terms in relation to the Notes specify that an offer of
those Notes may be made other than pursuant to Article 3(2) of the
Prospectus Directive in that Relevant Member State (a "Non-exempt
Offer"), following the date of publication of a prospectus in
relation to those Notes which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, provided that any
such prospectus has subsequently been completed by the final terms
contemplating such Non-exempt Offer, in accordance with the
Prospectus Directive, in the period beginning and ending on the
dates specified in such prospectus or final terms, as applicable;
(b) at any time to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(c) at any time to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000; and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts;
(d) at any time to fewer than 100 natural or legal persons (other than
qualified investors as defined in the Prospectus Directive) subject
to obtaining the prior consent of the relevant Underwriter; or
(e) at any time in any other circumstances falling within Article 3(2)
of the Prospectus Directive,
provided that no such offer of the Notes referred to in (b) to (e) above
shall require the Trust or any Underwriter to publish a prospectus
pursuant to Article 3 of the Prospectus Directive or supplement a
prospectus pursuant to Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Notes to
the public" in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase or subscribe the Notes, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus Directive in
that Relevant Member State.
For purposes of this provision, (i) "Relevant Member State" means each
member state of the European Economic Area, (ii) "European Economic Area"
means the European Union member states (currently Austria, Belgium, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal,
Slovakia, Slovenia, Spain, Sweden, The Netherlands and the United Kingdom),
together with Iceland, Liechtenstein and Norway, and (iii) "Prospectus
Directive" means
38
Directive 2003/71/EC of the European Parliament and of the Council, of
November 4, 2003 and includes any relevant implementing measure in each
Relevant Member State.
Section 19. United Kingdom. If any securities of a series are offered in
the United Kingdom, each Underwriter represents and agrees that:
(a) in relation to any Notes which have a maturity of less than one year,
(i) it is a person whose ordinary activities involve it in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes
of its business and (ii) it has not offered or sold and will not offer or sell
any Notes other than to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or who it is reasonable to expect
will acquire, hold, manage or dispose of investments (as principal or agent)
for the purposes of their businesses where the issue of the Notes would
otherwise constitute a contravention of Section 19 of the FSMA by the Trust;
(b) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of any Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Trust; and
(c) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom.
For purposes of this provision, "FSMA" means the Financial Services and
Markets Act 2000.
Section 20. Ireland. Each Underwriter hereby severally represents to and
agrees with the Depositor that: (i) in respect of a local offer (within the
meaning of Section 38(l) of the Investment Funds, Companies and Miscellaneous
Provisions Act 2005 of Ireland) of Notes in Ireland, it has complied and will
comply with Section 49 of the Investment Funds, Companies and Miscellaneous
Provisions Act 2005 of Ireland; and (ii) at all times:
(a) it has complied and will comply with all applicable provisions of the
Investment Intermediaries Acts, 1995 to 2000 of Ireland (as amended) with
respect to anything done by it in relation to the Notes or operating in, or
otherwise involving, Ireland and, in the case of an underwriter acting under
and within the terms of an authorization to do so for the purposes of European
Union Council Directive 93 /22/EEC of 10 May 1993 (as amended or extended), it
has complied with any codes of conduct made under the Investment
Intermediaries Acts, 1995 to 2000 of Ireland (as amended) and, in the case of
an underwriter acting within the terms of an authorization granted to it for
the purposes of European Union Council Directive 2000/12/EC of 20 March 2000
(as amended or extended), it has complied with any codes of conduct or
practice made under Section 117(l) of the Central Bank Act, 1989 of Ireland
(as amended); and
(b) it has only issued or passed on, and it will only issue or pass on,
in Ireland or elsewhere, any document received by it in connection with the
issue of the Notes to persons who are persons to whom the document may
otherwise lawfully be issued or passed on.
39
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Originator, the Underwriters and the Depositor in
accordance with its terms.
WDS RECEIVABLES LLC,
as Depositor
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
WACHOVIA DEALER SERVICES, INC.
By: /s/ X. Xxxxx Xxxxxx
---------------------------------
Name: X. Xxxxx Xxxxxx
Title: Sr. Vice Presidcent, Treasury
CONFIRMED AND ACCEPTED,
as of the date first above written:
WACHOVIA CAPITAL MARKETS, LLC,
as Representative of the Underwriters named
in Schedule A hereto
By: /s/ Xxxxxxx XxxXxxxx
-----------------------------
Name: Xxxxxxx XxxXxxxx
Title: Vice President
[Signature page to Wachovia Auto Loan Owner Trust 2008-1 Underwriting Agreement]
40
SCHEDULE A
Underwriters of the Amount of Amount of Amount of Amount of
Notes Class A-1 Notes Class A-2a Notes Class A-2b Notes Class A-3 Notes
Wachovia Capital $ 87,050,000 $24,400,000 $141,550,000 $104,940,000
Markets LLC
Barclays Capital, Inc. $ 7,480,000 $ 2,100,000 $ 12,170,000 $ 9,020,000
Xxxxxxx Xxxxx, Xxxxxx, $ 7,480,000 $ 2,100,000 $ 12,170,000 $ 9,020,000
Xxxxxx & Xxxxx,
Incorporated
Xxxxxx & Company $ 4,990,000 $ 1,400,000 $ 8,110,000 $ 6,020,000
Total $107,000,000 $30,000,000 $174,000,000 $129,000,000
SCHEDULE B
Pricing Information
