UAC SECURITIZATION CORPORATION
UNION ACCEPTANCE CORPORATION
AND
[UNDERWRITER]
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
UACSC TRUSTS
AUTOMOBILE RECEIVABLE BACKED CERTIFICATES
-----------------
[Underwriter]
as representative of the several
Underwriters named in the respective
Underwriting Agreements hereinafter
described
c/o
----------------
Dear Sirs:
From time to time, UAC Securitization Corporation ("UACSC") and Union
Acceptance Corporation ("UAC") may enter into one or more underwriting
agreements that provide for the sale of Securities (as defined herein) to you
and to such other underwriters as may be named therein. The standard provisions
set forth herein (the "Standard Provisions") may be incorporated by reference in
any such underwriting agreement (each, an "Underwriting Agreement") with such
changes hereto as provided in the Underwriting Agreement. Any such Underwriting
Agreement shall be in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined
and terms not otherwise defined in this Agreement are used herein as defined in
the Pooling and Servicing Agreement referred to below.
I.
UACSC proposes to sell to the several underwriters named in the
Underwriting Agreement automobile receivable pass-through and/or automobile
receivable backed certificates (the "Securities") representing undivided
interests in a trust fund including a pool of automotive retail installment sale
contracts, or other similar evidences of installment indebtedness, secured by
new and used automobiles and light trucks (the "Receivables"). The Securities
will be issued by a trust (the "Trust") pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") between UACSC and the bank or
trust company or other financial institution identified as trustee therein (the
"Trustee"). The terms and rights of any particular issuance of Securities shall
be as specified in the Underwriting Agreement relating thereto and in or
pursuant to the Pooling and Servicing Agreement identified in such Underwriting
Agreement. The Securities which are the subject of any particular Underwriting
Agreement into which these Standard Provisions are incorporated are herein
referred to as the "Offered Securities." The Securities will represent undivided
interests in a trust fund consisting of a pool of the Receivables, certain
monies due thereunder after a specified date, security interests in the vehicles
financed thereunder, and other instruments, funds, and accounts as may be
specified in the Pooling and Servicing Agreement (collectively, the "Trust
Fund"). The Securities with respect to each Underwriting Agreement and the
related Pooling and Servicing Agreement shall be issued with the title and in
the amount set forth in such Underwriting Agreement.
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Particular sales of Securities may be made from time to time to you, or
to the Underwriters named in the Underwriting Agreement, for whom you, or you
together with such other firm or firms specified in the Underwriting Agreement,
will act as representatives (the "Representatives"). The terms "Representatives"
and "Underwriters" shall mean you in such instances where you act as sole
Underwriters. These Standard Provisions shall not be construed as an obligation
of UACSC to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of UACSC to sell any of
the Securities and the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Underwriting Agreement with respect to
the Securities specified therein. Each Underwriting Agreement shall specify the
aggregate original principal amount of such Securities or, if applicable, an
indication that the offering will be an at-the- market offering, the purchase by
the Underwriters of such Securities, the names of the Representatives of such
Underwriters (if applicable), and the aggregate original principal amount of
such Securities to be purchased by each Underwriter and shall set forth the
date, time, and delivery of such Securities and the manner of payment therefor.
The Underwriting Agreement shall also specify (to the extent not set forth in
the Pooling and Servicing Agreement and the registration statement and
prospectus with respect thereto) the terms of such Securities. An Underwriting
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communication
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligation of the Underwriters under an
Underwriting Agreement shall be several and not joint.
II.
Representations and Warranties. UACSC represents and warrants to, and
agrees with, each Underwriter of any Offered Securities as of the date hereof
and as of the date of any Underwriting Agreement that:
(a) A registration statement on Form S-1 or S-3, including a
prospectus, relating to the Certificates has been filed with the
Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Act of 1933, as amended (the "Act"), and such registration
statement may have been amended. If the registration statement has been
filed on Form S-3, UACSC is eligible to use Form S-3 in connection with
the offer and sale of the Offered Securities. UACSC, as registrant,
will file with the Commission either, prior to effectiveness of such
registration statement, an amendment thereto (including the form of
final prospectus and prospectus supplement) or, after effectiveness of
such registration statement, final prospectus and/or prospectus
supplement in accordance with Rules 430A and 424(b)(1), (2) or (4). As
filed, such amendment and form of final prospectus and prospectus
supplement, or such final prospectus and/or prospectus supplement,
shall include all Rule 430A Information and, except to the extent that
the Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Underwriters
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained
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in the latest Preliminary Prospectus) as UACSC has advised the
Underwriters, prior to the Execution Time, will be included or made
therein.
As used herein, the term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto relating to the Offered Securities became or
become effective. "Execution Time" shall mean the date and time that
the Underwriting Agreement is executed and delivered by the parties
thereto. "Preliminary Prospectus" shall mean any preliminary prospectus
and prospectus supplement referred to in the preceding paragraph and
any preliminary prospectus included in the Registration Statement at
the Effective Date that omits Rule 430A Information. "Base Prospectus"
and "Prospectus Supplement" shall mean the prospectus and prospectus
supplement relating to the Certificates that is filed pursuant to Rule
424(b) in respect of the Offered Securities or, if no filing pursuant
to Rule 424(b) is required, shall mean the form of final prospectus and
prospectus supplement included in the Registration Statement at the
Effective Date (the Base Prospectus and Prospectus Supplement are
hereinafter referred to as the "Prospectus"). "Registration Statement"
shall mean the registration statement referred to in the preceding
paragraph, including any Registration Statement serving as a shelf
registration for multiple issuances of Securities thereunder,
incorporated documents, exhibits and financial statements, in the form
in which it has or shall become effective and, in the event any
post-effective amendment relating to the Offered Securities thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended; such term
shall include Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 424" and "Rule 430A"
refer to such rules under the Act. "Rule 430A Information" means
information with respect to the Offered Securities and the offering
thereof permitted to be omitted from the Registration Statement, at the
Effective Date, pursuant to Rule 430A.
(b) On the Effective Date, the Registration Statement did or
will, and, when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations"); on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that UACSC makes no representations
or warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with written information furnished
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to UACSC by or on behalf of the Underwriters specifically for use in
connection with preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The computer tape of the Receivables underlying the
Offered Securities made available to the Representatives by UACSC was
complete and accurate as of the date that it was delivered to the
Representatives and includes a description of the Receivables that are
described in the "Schedule of Receivables" that will be an exhibit to
the Pooling and Servicing Agreement.
(d) UACSC has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware and has
corporate and other power and authority to own its properties and
conduct its business, as now conducted by it, and to enter into and
perform its obligations under these Standard Provisions, the
Underwriting Agreement, and the Pooling and Servicing Agreement. UAC
has been duly incorporated and is validly existing under the laws of
the State of Indiana, UAFC has been duly incorporated and is validly
existing under the laws of the State of Delaware, and each of UAC and
UAFC has corporate and other power and authority to own its properties
and conduct its business, as now conducted by it. All other
subsidiaries of UAC have been duly incorporated and are validly
existing under the laws of the State of their incorporation and have
corporate and other power and authority to own their properties and
conduct their businesses, as now conducted by them.
(e) UACSC is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification with respect to
the suspension of the qualification of the Offered Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(f) These Standard Provisions have been duly authorized,
executed, and delivered by UACSC, the Underwriting Agreement, the
Purchase Agreement and the Pooling and Servicing Agreement, when
delivered by UACSC, will each have been duly authorized, executed, and
delivered by UACSC, and these agreements will each constitute a legal,
valid, and binding agreement of UACSC, enforceable against UACSC in
accordance with its terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, and other similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether
the enforcement of such remedies is considered in a proceeding in
equity or at law).
(g) The Offered Securities will conform in all material
respects to the description thereof contained in the Prospectus and,
assuming that the Offered Securities have been duly and validly
authorized, executed, and issued by the Trustee in accordance with the
Pooling
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and Servicing Agreement, will, when duly and validly authenticated by
the Trustee and delivered to and paid for by the Underwriters in
accordance with these Standard Provisions and the Underwriting
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
(h) As of the Closing Date, each of the Receivables will meet
the criteria for selection described in the Prospectus, and on such
Closing Date the representations and warranties of UACSC with respect
to the Receivables contained in the Pooling and Servicing Agreement
will be true and correct.
(i) Neither the sale of the Offered Securities, nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms of the Pooling and Servicing Agreement, or
these Standard Provisions, or the Underwriting Agreement, will
constitute a breach of any term or provision of the certificate of
incorporation or by-laws of UACSC, or conflict with or constitute a
breach, violation, or acceleration of or a default under the terms of
any indenture or other material agreement or instrument to which UACSC
is a party or by which it is bound, or any statute, regulation, or
order applicable to UACSC of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over UACSC or
UACSC's material properties. UACSC is not a party to, bound by or in
breach or violation of any indenture or other material agreement or
instrument, or subject to or in violation of any statute, regulation,
or order of any governmental body, administrative agency, regulatory
body, or court having jurisdiction over it, that materially and
adversely affects or would in the future materially and adversely
affect (i) the ability of UACSC to perform its obligations under these
Standard Provisions, the Underwriting Agreement, the Purchase Agreement
or the Pooling and Servicing Agreement or (ii) the business,
operations, or financial condition, or the material properties or
assets of UACSC.
(j) There are no actions or proceedings against, or
investigations of, UACSC pending or, to the knowledge of UACSC,
threatened before any court, administrative agency, or other tribunal
(i) asserting the invalidity of these Standard Provisions, the
Underwriting Agreement, the Purchase Agreement, the Pooling and
Servicing Agreement, or the Offered Securities, (ii) seeking to prevent
the issuance of the Offered Securities or the consummation of any of
the transactions contemplated by this Agreement, the Underwriting
Agreement, or the Pooling and Servicing Agreement, (iii) that might
materially and adversely affect the performance by UACSC of its
obligations under, or the validity or enforceability of, this
Agreement, the Underwriting Agreement, the Pooling and Servicing
Agreement, or the Offered Securities, (iv) seeking to affect adversely
the federal income tax attributes of the Offered Securities described
in the Prospectus, or (v) that if determined adversely as to UACSC
would have a material adverse effect on the business, operations, or
financial condition or the material properties or assets of UACSC.
(k) There has not been any material adverse change, or
development involving a material adverse prospective change, in the
business, operations, or financial condition or the
5
material properties or assets of UACSC and UAC, taken as a whole, since
the end of the most recent fiscal quarter for which publicly available
earnings statements were delivered to the Representatives prior to the
date of the related Underwriting Agreement.
(l) Any taxes, fees, and other governmental charges in
connection with the execution and delivery of this Agreement, the
Underwriting Agreement, and the Pooling and Servicing Agreement and the
execution, delivery, and sale of the Offered Securities have been or
will be paid at or before the Closing Date.
III.
Purchase By the Underwriters. The Offered Securities to be purchased by
the Underwriters pursuant to the Underwriting Agreement relating thereto, in
definitive form to the extent practicable, and in such authorized denominations
and registered in such names as the Underwriters may request upon three full
Business Days prior notice to UACSC, shall be delivered by or on behalf of UACSC
to the Representatives for the account of such Underwriters, against payment by
such Underwriters or on such Underwriters' behalf of the purchase price therefor
(i) by wire transfer or by certified or official bank check or checks, payable
to the order of UACSC in immediately available funds, or (ii) by such other
means and in such other form as is specified in the Underwriting Agreement, all
at the place, time, and date specified in the Underwriting Agreement or at such
other place, time, and date as the Underwriters and UACSC may agree upon in
writing, such time and date being herein called the "Closing Date" for such
Offered Securities.
UACSC agrees to have the Offered Securities available for inspection,
checking, and packaging by the Representatives in New York, New York (or such
other location as may be specified by the Representatives) not later than 10:00
A.M. on the Business Day prior to the Closing Date.
IV.
Offering by the Underwriters. UACSC is advised by the Representatives
that upon the execution of the Underwriting Agreement and authorization by the
Representatives of the release of such Offered Securities, the Underwriters
propose to offer such Offered Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented. The Underwriters intend
to make a market in the Offered Securities, as permitted by the applicable laws
and regulations. The Underwriters are not obligated to make a market in the
Offered Securities and any such market-making may be discontinued at any time in
the Underwriters' sole discretion.
V.
Agreements. UACSC agrees with each of the Underwriters of any Offered
Securities that:
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(a) UACSC will promptly advise each such Underwriter (i) when
any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv)
of the receipt by UACSC of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. UACSC will not file any amendment to the Registration
Statement or supplement to the Prospectus after the date of the
Underwriting Agreement and prior to the Closing Date for such Offered
Securities unless UACSC has furnished each such Underwriter a copy for
its review prior to filing and will not file any such proposed
amendment or supplement to which any such Underwriter reasonably
objects. Subject to the foregoing sentence, UACSC will cause the
Prospectus, as supplemented or amended, to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in timely filing with the Commission
pursuant to said rule. UACSC will use its best efforts to prevent the
issuance of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the rules under the Act, UACSC
will promptly prepare and file with the Commission, subject to
paragraph (a) of this Article V, an amendment or supplement that will
correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible.
(c) UACSC will furnish to the Underwriters and/or their
counsel, upon request, and without charge, executed copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Underwriters or a dealer may be
required by the Act, as many copies of the Prospectus, as amended or
supplemented, and any amendments and supplements thereto as the
Underwriters may reasonably request. UACSC will pay the expenses of
printing all offering documents relating to the offering of the Offered
Securities.
(d) UACSC agrees that, so long as the Offered Securities shall
be outstanding, it will deliver or cause to be delivered to the
Representatives the annual statement as to compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the
Trustee
7
pursuant to the Pooling and Servicing Agreement, as soon as such
statements are furnished to UACSC.
(e) As soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, UACSC will
cause the Trust to make generally available to securityholders of the
Trust an earnings statement of the Trust covering a period of at least
12 months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the Act
and, at the option of UACSC, will satisfy the requirements of Rule 158
under the Act.
(f) UACSC will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify
the Offered Securities for sale (including, but not limited to, such
action as may be required for the qualification or exemption of the
sale of the Offered Securities under state securities or Blue Sky laws)
and to determine their eligibility for investment under the laws of
such jurisdictions as the Underwriters may designate and will maintain
such qualification in effect so long as required for the distribution
of the Offered Securities. UACSC will furnish such information, execute
such instruments and take such action, if any, as the Underwriters may
reasonably request in connection with any filing with the National
Association of Securities Dealers, Inc. relating to the Offered
Securities should the Underwriters determine that such filing is
required or appropriate.
(g) UACSC will pay all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to,
the fees and disbursements of its counsel; the costs and expenses of
printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement, and the Underwriting Agreement, and printing or
engraving and distributing the Offered Securities; any transfer taxes
relating to the transfer of the Offered Securities to the Underwriters;
accounting fees and disbursements; the costs and expenses in connection
with the qualification or exemption of the sale of the Offered
Securities under state securities or Blue Sky laws and the
determination of their eligibility for investment under state and
federal laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith and the costs and
expenses of preparing and distributing any memoranda concerning the
Offered Securities' eligibility for investment; the cost and expenses
in connection with the preparation, printing, and filing of the
Registration Statement (including exhibits thereto) and the Prospectus
and amendments and supplements thereto, the preparation and printing of
this Agreement and any Underwriting Agreement and the furnishing to the
Underwriters of such copies of each Preliminary Prospectus, Prospectus,
and any amendments and supplements thereto as the Underwriters may
reasonably request, the fees of the rating agency that initially rates
the Offered Securities, and any filing fees of the National Association
of Securities Dealers, Inc. relating to the Offered Securities should
the Underwriters determine that such filing is required or appropriate.
Except as expressly provided in the Underwriting Agreement, UACSC shall
not be obligated to pay the fees or disbursements of the Underwriters'
counsel.
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(h) During a period of 20 calendar days from the date as of
which the respective Underwriting Agreement is executed, neither UACSC
nor any affiliate of UACSC will, without the Underwriters' prior
written consent (which consent shall not be unreasonably withheld),
enter into any agreement to offer or sell receivables or securities as
identified in such Underwriting Agreement.
(i) So long as any of the Offered Securities are outstanding,
UACSC will furnish to the Underwriters as soon as practicable after the
end of the fiscal year, (i) all documents required to be distributed to
securityholders of the Trust or filed with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any order of the Commission thereunder and (ii) from time to time,
any other information concerning UACSC filed with any government or
regulatory authority that is otherwise publicly available, as the
Underwriters may reasonably request.
(j) On or before the Closing Date UACSC shall cause its
computer records relating to the Receivables to be marked in such a
manner as shall clearly indicate the Trust's absolute ownership of the
Receivables, and from and after the Closing Date UACSC shall not take
any action inconsistent with the Trust's ownership of such Receivables,
other than as permitted by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by the rating agency that initially
rates the Offered Securities is conditional upon the furnishing of
documents or the taking of any other actions by UACSC, UACSC shall, as
soon as practicable, furnish such documents and take any such other
actions.
VI.
Conditions to the Obligations of the Underwriters. The obligation of
the Underwriters of any Offered Securities under the Underwriting Agreement to
purchase the Offered Securities shall be subject to the accuracy of the
representations and warranties on the part of UACSC contained herein as of the
date hereof and the Closing Date, to the accuracy of the statements of UACSC
made in any certificates pursuant to the provisions hereof, to the performance
by UACSC of its obligations hereunder and to the following additional conditions
with respect to the Offered Securities:
(a) The Registration Statement shall have become effective not
later than 4:00 p.m., New York City time, on the day following the date
of the Underwriting Agreement; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened; and the Prospectus shall have been timely filed with the
Commission pursuant to Rule 424(b) under the Act.
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(b) The Underwriters shall have received from Xxxxxx &
Xxxxxxxxx and Xxxxxxx & XxXxxxx, counsel for UACSC, favorable opinions,
dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters, to the effect set forth in Exhibit A.
Such opinions (a) may express reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to these Standard
Provisions, the Underwriting Agreement, and the Pooling and Servicing
Agreement, (b) may assume the due authorization, execution, and
delivery of the instruments and documents referred to therein by the
parties thereto other than UACSC, and (c) to the extent such opinion
relates to law other than the laws of the State of Indiana and the
federal laws of the United States, may rely on a favorable opinion of
local counsel satisfactory to the Representatives, dated the Closing
Date, and satisfactory in form and substance to counsel for the
Underwriters. The counsel for UACSC will also deliver an opinion to the
Underwriters, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters with respect to the
characterization of the transfer of the Receivables from UACSC to the
Trust as a sale.
(c) The Underwriters shall have received from Cadwalader,
Xxxxxxxxxx & Xxxx, counsel for the Underwriters, a favorable opinion,
dated the Closing Date and satisfactory in form and substance to the
Underwriters.
(d) The Underwriters shall have received on the Closing Date,
addressed to the Underwriters and dated the Closing Date, any opinion
delivered to the rating agency in connection with its rating of the
Offered Securities.
(e) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, to the effect set
forth in Exhibit B.
(f) The Underwriters shall have received a favorable opinion
addressed to the Underwriters and UACSC from counsel for the third
party credit enhancer, if any, dated the Closing Date and satisfactory
in form and substance to counsel for the Underwriters and UACSC, to the
effect set forth in Exhibit C.
(g) The Offered Securities shall be rated in the highest
category by a nationally recognized rating agency or such other
category as shall be designated in the Underwriting Agreement. Further,
subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded (i)
the Offered Securities by any nationally recognized rating agency which
rates the Offered Securities, (ii) any rated debt instrument issued by
UACSC or (iii) any rated debt instrument issued by the third party
credit enhancer, if any.
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(h) UACSC and UAC will enter into the Pooling and Servicing
Agreement at or before the Closing Date and, when delivered by UACSC
and UAC, the Pooling and Servicing Agreement will have been duly
authorized, executed, and delivered by UACSC and UAC and will
constitute the legal, valid, and binding agreement of UACSC and UAC.
(i) UACSC shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President or a Vice
President of UACSC to the effect that the signer of such certificate
has carefully examined these Standard Provisions, the Underwriting
Agreement, and the Pooling and Servicing Agreement and to the effect
that: (i) the representations and warranties of UACSC contained in such
agreements are true and current in all material respects at and as of
the Closing Date with the same effect as if made at the Closing Date,
(ii) UACSC has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to UACSC's knowledge threatened, (iv)
there shall have been no material adverse change in the condition of
UACSC and any of its subsidiaries, taken as a whole, from that set
forth in the Registration Statement, (v) nothing has come to his
attention that would lead him to believe that the Prospectus contains
any untrue statement of a material fact or omits 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, (vi)
UACSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
with corporate and other power and authority to own its properties and
conduct its business, as now conducted by it, and to enter into and
perform its obligations under this Agreement and the Pooling and
Servicing Agreement, (vii) each of UAC and UAFC has been duly
incorporated and is validly existing under the laws of the State of its
incorporation and has corporate and other power and authority to own
its properties and conduct its business, as now conducted by it, (viii)
all other subsidiaries of UAC that have engaged in any business
activity have been duly incorporated and are validly existing under the
laws of the State of their incorporation and have corporate and other
power and authority to own their properties and conduct their
businesses, as now conducted by them, (ix) these Standard Provisions,
the Underwriting Agreement and the Pooling and Servicing Agreement have
been duly authorized, executed, and delivered by UACSC, (x) the
fulfillment of the terms of these Standard Provisions, the Underwriting
Agreement and the Pooling and Servicing Agreement will not constitute a
breach of any term or provision of the charter or by-laws of UACSC, or
conflict with or constitute a breach, violation, or acceleration of or
a default under, the terms of any indenture or other material agreement
or instrument to which UACSC is a party, and (xi) UACSC is not a party
to, bound by, or in breach or violation of any indenture or other
material agreement or instrument, or subject to or in violation of any
statute, regulation, or order of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over UACSC, that
materially and adversely affects or would in the future materially and
adversely affect the business, operations, or financial condition or
the material properties or assets of UACSC.
11
(j) The Underwriters shall have received from independent
accountants of UACSC, one or two letters, one such letter dated the
date of the Prospectus relating to such Offered Securities and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters, and a second letter, if necessary, dated the Closing
Date, as to such matters as the Underwriters may reasonably request in
form and substance satisfactory to the Underwriter and counsel to the
Underwriters, provided by UACSC.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and the Underwriting Agreement and all
documents incident hereto or thereto shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates, opinions, and documents as the Underwriters
may reasonably request.
VII.
Reimbursement of Underwriters' Expenses. If the sale of any Offered
Securities provided for in the Underwriting Agreement relating thereto is not
consummated because any condition to the obligations of the Underwriters set
forth in Article VI hereof is not satisfied or because of any refusal,
inability, or failure on the part of UACSC to perform any agreement herein or
therein or comply with any provision hereof, other than by reason of a default
by the Underwriters, UACSC will reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of such Offered Securities.
VIII.
Indemnification and Contribution. (a) UACSC and UAC agree to indemnify
and hold harmless the Underwriters and each person who controls any Underwriter
within the meaning of the Act or the Exchange Act from and against any and all
losses, claims, damages, or liabilities, joint or several, to which the
Underwriters may become subject under the Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) arise out of or are based upon any untrue statement of a material fact or
omission or alleged omission to state a material fact contained in the
Prospectus (together with any supplement thereto) necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, on the Effective Date, if not filed pursuant to Rule
424(b), and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date; and agree to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim,
12
damage, liability, or action, as such expenses are incurred; provided, however,
that UACSC and UAC will not be liable in any such case to the extent that any
such loss, claim, damage, or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to UACSC and/or UAC as herein stated by or on behalf of the
Underwriters specifically for use in connection with the preparation thereof.
This indemnity agreement will be in addition to any liability that UACSC and UAC
may otherwise have.
(b) The Underwriters agree, severally and not jointly, to indemnify and
hold harmless UACSC and UAC, its directors, each of UACSC and UAC's officers who
sign the Registration Statement, and each person, if any, who controls UACSC and
UAC within the meaning of the Act, to the same extent as the foregoing indemnity
from UACSC and UAC to the Underwriters, but only insofar as such losses, claims,
damages, or liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission that was made in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as amended
or supplemented, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to UACSC and/or UAC as herein
stated by or on behalf of the Underwriters specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that the Underwriters
may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraphs (a) or (b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
in addition to any local counsel for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by [Underwriter] in the case of parties indemnified
pursuant to paragraph (a) of this Article VIII and by UACSC in the case of
parties indemnified pursuant to paragraph (b) of this Article VIII. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an
13
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 calendar days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under paragraphs (a) or (b) of this Article
VIII or is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by UACSC and/or UAC on the one hand, and the Underwriters on
the other, from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of UACSC or UAC on the one hand,
and the Underwriters on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by UACSC or UAC on the one hand, and the Underwriters on the other, in
connection with the offering of the Offered Securities shall be deemed to be in
the same proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by UACSC or UAC bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of UACSC and/or UAC on the one hand, and the
Underwriters on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by UACSC and/or UAC or the Underwriters and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
(e) UACSC, UAC and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess
14
of the amount by which the total price at which the Offered Securities
underwritten and distributed to the public by such Underwriter were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VIII are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters (as defined in the
Agreement Among Underwriters), and not joint.
IX.
Termination. These Standard Provisions and each Underwriting Agreement
shall be subject to termination in your absolute discretion, by notice given to
UACSC, if (a) after the execution and delivery of these Standard Provisions and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or New
York State authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in your judgment, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iii), such event singly
or together with any other such event makes it, in your judgment, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
X.
Substitution Of and Default By An Underwriter. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase the Offered
Securities which it or they have agreed to purchase under the Underwriting
Agreement relating thereto, and the aggregate principal amount of the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Offered Securities to which such Underwriting Agreement relates,
the other Underwriters shall be obligated severally in the proportions which the
amounts of such Offered Securities set forth opposite their names in such
Underwriting Agreement bear to the aggregate principal amount of such Offered
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase; provided that in no event shall the principal
amount of the Offered Securities which any Underwriter has agreed to purchase
hereunder be increased pursuant to this Article X by an amount in excess of
one-ninth of
15
such principal amount of such Offered Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase the Offered Securities which it or they agreed to
purchase hereunder and the aggregate principal amount of the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is more than one-tenth of the aggregate principal amount of the
Offered Securities to which such Underwriting Agreement relates and arrangements
satisfactory to the Representatives and UACSC for the purchase of such Offered
Securities are not made within 36 hours after such default, such Underwriting
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or of UAC or UACSC. In any such case either the Representatives or
UACSC shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be affected. Any action taken under this Article X or any such
termination shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under these Standard Provisions or
such Underwriting Agreement.
XI.
Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities, and other statements of UACSC or UAC
or on their behalf by its officers and the Underwriters set forth in or made
pursuant to these Standard Provisions and each Underwriting Agreement will
remain in full force and effect, regardless of any investigation made by the
Underwriters or on the Underwriters' behalf, UACSC or UAC or any of the
officers, directors, or controlling persons referred to in Article VIII hereof,
and will survive delivery of and payment for the Offered Securities. The
provisions of Sections V(g), VII, and VIII hereof shall survive the termination
or cancellation of these Standard Provisions or any Underwriting Agreement.
XII.
Notices. In all dealings hereunder, NationsBanc Xxxxxxxxxx Securities
LLC shall act on behalf of each of the Underwriters and the other parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement (including, without limitation, any Underwriting Agreement) on behalf
of any Underwriter made or given by [Underwriter]. All communications hereunder
or under any Underwriting Agreement will be in writing and effective only on
receipt, and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to ___________
;
or, if sent to UACSC, will be mailed, delivered or telegraphed and confirmed to
UACSC at UAC Securitization Corporation, 0000 Xxxxxx Xxxxx Xxxx, Xxxxx 0000-X,
Xxxxxx Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx and if sent to UAC to
Union Acceptance Corporation, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000, Attention: Xxxx X. Xxxxxxxxxx.
16
XIII.
Successors. These Standard Provisions and each Underwriting Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Article VIII hereof, and their successors and assigns, and no
other person will have any right or obligation hereunder.
XIV.
Applicable Law. These Standard Provisions and each Underwriting
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed therein.
These Standard Provisions and any Underwriting Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument.
XV.
Headings. The headings used in these Standard Provisions are for
convenience of reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Agreement.
[Next page is signature page]
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between UACSC and
you.
Very truly yours,
UAC SECURITIZATION CORPORATION
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UNION ACCEPTANCE CORPORATION
By:
Name: Xxxx X. Xxxxx
Title: Vice President
The foregoing Standard Provisions are hereby confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By:
Name:
Title:
18
EXHIBIT A
OPINION OF COUNSEL FOR UAC SECURITIZATION CORPORATION
The Opinion of Counsel for UAC Securitization Corporation ("UACSC") and
the Trust Fund, to be delivered pursuant to Article VI, paragraph (b) of the
document entitled the UAC Securitization Corporation and
_____________________________________ Underwriting Agreement Standard Provisions
for UACSC Trusts, Automobile Receivable Backed Certificates (the "Agreement")
shall
be to the effect that:
(i) UACSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Agreement, the
Underwriting Agreement, the Pooling and Servicing Agreement, and the Offered
Securities and had at all times relevant to such agreement and now has requisite
power, authority and legal right to acquire, own, sell, and service the
Receivables.
(ii) UAFC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Purchase Agreement, and
had at all times relevant to such agreement and now has the power, authority and
legal right to acquire, own, and sell the Receivables.
(iii) To such counsel's knowledge, each of UACSC and UAFC is duly
qualified to do business and in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would have a material adverse effect on the
transactions contemplated in the Agreement, the Underwriting Agreement, the
Purchase Agreement or the Pooling and Servicing Agreement or would render any
receivable unenforceable by UACSC or the Trustee on behalf of any holder of the
Offered Securities.
(iv) The Registration Statement (which for purposes of such opinion
shall not be deemed to include any exhibits filed therewith) has become
effective under the Act and, to such counsel's knowledge, no proceedings for a
stop order have been instituted or are threatened under Article 8(d) of the Act.
(v) The Registration Statement, as of its effective date, and the
Prospectus, as amended or supplemented, for the Offered Securities, as of its
date, complied as to form in all material respects with the requirements of the
Act and the rules thereunder.
(vi) The Agreement, the Underwriting Agreement, the Purchase Agreement
and the Pooling and Servicing Agreement have been duly authorized, executed, and
delivered by UACSC and each constitute a legal, valid, and binding agreement of
UACSC, enforceable against UACSC in accordance with its respective terms, except
(i) as enforceability may be limited by bankruptcy,
1
insolvency, reorganization, moratorium, receivership, or other similar laws
affecting the enforcement of creditors' rights in general and may be further
limited by the exercise of judicial discretion in applying principles of equity,
including (but not limited to) the availability or effects of a preliminary
injunction, a restraining order, or specific performance (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and (ii)
the enforcement of certain provisions respecting indemnification and
contribution may be limited by applicable law or public policy.
(vii) The Purchase Agreement has been duly authorized, executed, and
delivered by UAFC and constitutes a legal, valid, and binding agreement of UAFC
enforceable against UAFC in accordance with its terms, except (i) as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, receivership, or other similar laws affecting the enforcement of
creditors' rights in general and may be further limited by the exercise of
judicial discretion in applying principles of equity, including (but not limited
to) the availability or effects of a preliminary injunction, a restraining
order, or specific performance (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(viii) Neither UACSC nor the Trust Fund is an "investment company" or
under the "control" of an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund
is not required to be registered under the Investment Company Act of 1940, as
amended.
(x) No registration with or consent, approval, authorization or order
of any Federal court or governmental agency or body is required for the
consummation by UACSC of the transactions contemplated by the Agreement or the
Underwriting Agreement, except such as may be required under the Blue Sky laws
of any jurisdiction in connection with the offer and sale of the Offered
Securities.
(xi) The execution and delivery of the Agreement, the Underwriting
Agreement, the Purchase Agreement and the Pooling and Servicing Agreement, sale
of the Offered Securities to the Underwriters pursuant to the Agreement and the
Underwriting Agreement, the transfer of the Receivables, the assignment of the
security interest in the vehicles financed under any of the Receivables (the
"Financed Vehicles"), to UACSC and by UACSC to the Trustee acting on behalf of
the Trust, the consummation of the other transactions contemplated by the
Agreement, Underwriting Agreement or the Purchase Agreement, and the fulfillment
of the terms of the Pooling and Servicing Agreement, the Purchase Agreement, the
Agreement and the Underwriting Agreement do not constitute a breach or violation
of any term or provision of, or a default under, the Charter or Certificate of
Incorporation or By-laws of UACSC or UAFC, or, to the knowledge of such counsel,
any indenture or other material agreement or instrument to which UACSC or UAFC
is a party or by which either of them is bound, or any Federal statute or
regulation known to such counsel to be applicable to UACSC or UAFC or, to the
knowledge of such counsel, any order of any Federal court,
2
regulatory body, administrative agency or governmental body having jurisdiction
over UACSC or UAFC.
(xii) No filing or other action other than the filing of the Uniform
Commercial Code financing statements (i) naming UAFC as Seller and UACSC as
buyer and (ii) naming UACSC as seller and the Trustee as buyer, which has been
completed, is necessary to perfect the sale and transfer of the Receivables by
UAFC to UACSC acting on behalf of the Trust; provided, however, that any such
transfer may be subject to the rights of purchasers who take possession of any
of the Receivables for value in the ordinary course of business without
knowledge of the transfer to the Trustee.
(xiii) Such counsel is familiar with UAC's and the Predecessor's
standard operating procedures relating to the acquisition of a perfected first
priority security interest in the vehicles financed by the retail installment
sale contracts purchased by UAC or the Predecessor in the ordinary course of
business. Assuming that UAC's and the Predecessor's standard procedures are
followed with respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that UAC or the Predecessor
has not or will not continue to follow their standard procedures in connection
with the perfection of security interests in the Financed Vehicles), either UAFC
or the Predecessor has acquired or will acquire a perfected first priority
security interest in the Financed Vehicles.
(xiv) The Offered Securities have been duly authorized and assuming
that the Offered Securities are duly executed, authenticated, and delivered by
the Trustee as specified in the Pooling and Servicing Agreement and are issued
and delivered to, and paid for by, the Underwriters pursuant to the Agreement
and the Underwriting Agreement, will be validly issued and outstanding, will
evidence valid ownership interests in the Trust Fund, and will be entitled to
the benefits of the Pooling and Servicing Agreement.
(xv) UACSC has the corporate power and authority to assign and deliver
the Trust Fund to the Trustee under the Pooling and Servicing Agreement in
exchange for the Offered Securities, has duly authorized such assignment and
delivery to the Trustee by all necessary action on the part of UACSC, and the
Trust Fund has been duly and validly assigned and delivered by UACSC to the
Trustee under the Pooling and Servicing Agreement.
(xvi) The statements in the Prospectus under the captions "Prospectus
Summary," "Formation of the Trust," "The Trust Property," "The Receivables
Pool," "Yield Considerations," "Certificate Factors and Other Certificate
Information," "Use of Proceeds," "Union Acceptance Corporation and Affiliates,"
"The Certificates," and "Certain Legal Aspects of the Receivables," insofar as
such statements constitute a summary of the Offered Securities, the Pooling and
Servicing Agreement, the Purchase Agreement or other documents and other matters
of law or legal conclusions referred to therein, have been reviewed by such
counsel and are accurate in all material respects.
3
(xvii) The statements in the Prospectus under the captions "Certain
Federal Income Tax Consequences" (including the description of such counsel's
opinion expressed therein) and "ERISA Considerations", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are accurate in all material respects.
(xviii) To such counsel's knowledge and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental proceedings
pending, threatened, or contemplated to which UACSC or UAFC is a party or by
which any property of UACSC or UAFC is the subject (A) asserting the invalidity
of the Agreement, the Underwriting Agreement, the Offered Securities, the
Purchase Agreement or the Pooling and Servicing Agreement, (B) seeking to
prevent the issuance of the Offered Securities or the consummation of any of the
transactions contemplated by the Agreement, the Underwriting Agreement, the
Purchase Agreement or the Pooling and Servicing Agreement, or (C) which, if
determined adversely to UACSC or UAFC, would individually or in the aggregate
have a material adverse effect on (1) the ability of UACSC or UAFC to perform
its obligations under the Agreement, the Underwriting Agreement, the Purchase
Agreement or the Pooling and Servicing Agreement, or (2) the business,
operations, financial condition, properties or assets of UACSC.
Such counsel shall also state that, during the preparation of the
Registration Statement and the Prospectus, including amendments and supplements
thereto, such counsel participated in conferences with officers and other
representatives of UACSC, its accountants, the Underwriters and counsel for the
Underwriters and that, while such counsel has not undertaken to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (and amendments and supplements thereto) on the
basis of such conferences and such counsel's review of the documents referenced
in such counsel's opinion, no facts have come to the attention of such counsel
that have caused such counsel to believe that (1) the Registration Statement
contained, at the time that the Registration Statement became effective, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(2) the Prospectus contained on the date of the Underwriting Agreement or
contains, as amended or supplemented, if applicable, on the Closing Date, an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (3) there are any
material contracts, indentures, or other documents of a character required to be
described in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement other than those described therein or so filed.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Agreement.
4
EXHIBIT B
OPINION OF COUNSEL FOR THE TRUSTEE
The Opinion of counsel for the Trustee, to be delivered pursuant to
Article VI, paragraph (e) of the document entitled the UAC Securitization
Corporation and ______________________ ______________ Underwriting Agreement
Standard Provisions for UACSC Trusts, Automobile Receivable Backed Certificates
(the "Agreement") shall be to the effect that:
(i) the Trustee has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate or other) and to enter
into, and to take all action required of it under, the Pooling and Servicing
Agreement;
(ii) the Pooling and Servicing Agreement has been duly authorized,
executed, and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee in accordance
with its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, and other similar laws affecting the
enforcement of creditors' rights generally, as such laws would apply in the
event of a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Trustee, and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Trustee has duly executed the Offered Securities on behalf of
the Trust;
(iv) the Trustee has duly authenticated and delivered the Offered
Securities;
(v) the execution and delivery of the Pooling and Servicing Agreement
by the Trustee and the performance by the Trustee of its terms do not conflict
with or result in a violation of (A) any law or regulation of the United States
of America or the State of New York governing the banking or trust powers of the
Trustee, or (B) the Charter or By-laws of the Trustee; and
(vi) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the banking or trust powers of the Trustee is required
in connection with the execution and delivery by the Trustee of the Pooling and
Servicing Agreement or the performance by the Trustee of the terms of the
Pooling and Servicing Agreement.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
EXHIBIT C
OPINION OF COUNSEL FOR THE CREDIT ENHANCER
The Opinion of Counsel for the Credit Enhancer to be delivered pursuant
to Article VI, paragraph (f) of the document entitled the UAC Securitization
Corporation and __________ ______________ Underwriting Agreement Standard
Provisions for UACSC Trusts, Automobile Receivable Backed Certificates (the
"Agreement") shall be substantially to the effect that:
(i) the Credit Enhancer is duly incorporated, validly existing
and in good standing under the laws of the _______________________;
(ii) the Credit Enhancer of [Credit Bank] has the corporate
power to execute and deliver, and to take all action required of it
under, the [credit enhancement instrument(s)];
(iii) the [credit enhancement instrument(s)] has been duly
authorized by the Credit Enhancer and, when duly executed and delivered
by the Credit Enhancer, will constitute the legal, valid and binding
obligation of Credit Enhancer, enforceable against it in accordance
with its terms subject, as to enforcement, to bankruptcy, insolvency,
liquidation, reorganization, adjustment of debt, moratorium and other
laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies; and
(iv) the [Credit Enhancement instrument] is not required to be
registered under the Securities Act of 1933, as amended.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Agreement.
ANNEX I
Form of Underwriting Agreement
UAC SECURITIZATION CORPORATION
UNION ACCEPTANCE CORPORATION
AND
[UNDERWRITER]
UNDERWRITING AGREEMENT
FOR
UACSC 199_-_ TRUST
[ ] AUTOMOBILE RECEIVABLE BACKED CERTIFICATES
_________, 199_
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___________ ___, 199__
UAC Securitization Corporation
000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxxxxx, Xxxxxxx 00000
Union Acceptance Corporation
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We understand that UAC Securitization Corporation, a Delaware
corporation ("UACSC"), proposes to sell $______ aggregate amount of Certificates
designated "[ ] Automobile Receivable Backed Certificates" (the "Offered
Securities"), issued by UACSC 199_-_ [Auto] Trust. Subject to the terms and
conditions set forth in or incorporated by reference in this Agreement (this
"Agreement"), [we] [the Underwriters named on page __ of the copy of the
Prospectus attached hereto as Annex A (such Underwriters being herein called the
"Underwriters")] hereby agree severally and not jointly to purchase all of the
Offered Securities. The purchase price at which [we] [the Underwriters] will
purchase the Offered Securities is _____% of the original principal amount
thereof, plus, accrued interest from _______________ to the date of payment and
delivery of the Offered Securities pursuant to the following paragraph.
We [the Underwriters] will pay for the Offered Securities in
immediately available funds upon delivery thereof at the offices of Xxxxxx &
Xxxxxxxxx in Indianapolis, Indiana, or at such other location as shall be
designated by [us] [the Underwriters], at _____ A.M. (Indianapolis time) on
____________, 199_, or at such other time, not later than ____________, 199_, as
shall be designated by [us] [the Underwriters].
The Offered Securities shall have the terms set forth in the copy of
the Prospectus attached hereto as Annex A and shall conform in all material
respects to the description thereof contained in such Prospectus.
All the provisions contained in the document entitled UAC
Securitization Corporation and [Underwriter] Underwriting Agreement Standard
Provisions for UACSC [Auto] Trusts, Automobile Receivable Backed Certificates,
dated ____________, 199_ (the "Standard Provisions"), a copy of which you have
previously received, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. All references to the
"Underwriters," the "several Underwriters" or the
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"Representative" in the Standard Provisions shall be deemed to refer to
[Underwriter] and ___________________________, Underwriters hereunder.
In connection with paragraph (h) of Article V of the Standard
Provisions, during the period specified in the Standard Provisions, neither
UACSC nor any affiliate of UACSC will, without our prior written consent, enter
into any agreement to offer or sell any automotive receivables or any securities
issued by UACSC or any affiliate of UACSC secured by, evidencing interests in,
or otherwise backed by automotive receivables, in any single transaction
involving a principal amount of automotive receivables in excess of
$___________.
[Next page is signature page]
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Please confirm your agreement by having authorized officers sign a copy
of this Agreement in the spaces set forth below and returning the signed copy to
us.
Very truly yours,
[UNDERWRITER]
AND ________________________________
[as Underwriters]
By: NationsBanc Xxxxxxxxxx Securities LLC
By:___________________________
Title:_______________________
Accepted:
UAC SECURITIZATION CORPORATION
By:___________________________
Title:_______________________
UNION ACCEPTANCE CORPORATION
By:___________________________
Title:_______________________
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ANNEX A
[Copy of Prospectus]
