Exhibit 1.1
$[ ]
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NATIONAL CITY AUTO TRUST 200__-__
[____]% ASSET BACKED NOTES, CLASS [__]
[____]% ASSET BACKED NOTES, CLASS [__]
[____]% ASSET BACKED CERTIFICATES, CLASS [__]
NATIONAL CITY VEHICLE RECEIVABLES INC.
FORM OF UNDERWRITING AGREEMENT
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[DATE]
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as representative of the several Underwriters
listed on Schedule I hereto
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
1. INTRODUCTION. National City Vehicle Receivables Inc., a Delaware
corporation (the "Depositor") and a wholly owned subsidiary of National City
Bank, a national banking association, proposes to cause National City Auto
Receivables Trust 200__-__ (the "Trust") to issue and sell $[________] principal
amount of its [____]% Asset Backed Notes, Class [__] (the "Class [__] Notes"),
$[________] principal amount of its [____]% Asset Backed Notes, Class [__] (the
"Class [__] Notes" and with the Class [__] Notes, the "Notes") and $[________]
principal amount of its [____]% Asset Backed Certificates, Class [__] (the
"Certificates") to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and the
other several underwriters listed on Schedule I hereto (collectively, the
"Underwriters"). The Notes and the Certificates are hereinafter referred to
collectively as the "Offered Securities".
The Trust Property will include, among other things, a pool of [retail
installment sales contracts, retail installment loans, purchase money notes or
other notes] to be transferred by the Depositor to the Trust on the Closing Date
(the "Receivables"), the related security interests in [new and used
automobiles, light-duty trucks, motorcycles, recreational vehicles, vans,
minivans and/or sport utility vehicles] financed thereby (the "Financed
Vehicles"), certain monies received thereon after [DATE] (the "Cutoff Date"),
all insurance proceeds and liquidation proceeds with respect thereto, the
related Receivables Files, the Collection Account, proceeds of the foregoing and
certain rights with respect to funds on deposit from time to time in the Reserve
Account.
The Receivables have been originated or purchased by National City Bank
("National City Bank") [and will be sold to the Depositor by National City Bank
(in such capacity, the "Seller")]. The Receivables will be serviced for the
Trust by National City Bank (in such capacity, the "Servicer"). The Notes will
be issued pursuant to an Indenture to be dated as of [DATE] (the "Indenture"),
between the Trust and [INDENTURE TRUSTEE], as indenture trustee (the "Indenture
Trustee"). The Certificates will be issued pursuant to an Amended and Restated
Trust Agreement to be dated as of [DATE] (as amended and supplemented from time
to time, the "Trust Agreement"), between National City Vehicle Receivables Inc.,
as Depositor, and [OWNER TRUSTEE], as owner trustee (the "Owner Trustee").
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement to be dated as of
[DATE] (the "Sale and Servicing Agreement"), among the Trust, the Seller, the
Servicer, the Administrator, the Custodian, the Depositor and the Indenture
Trustee, or, if not defined therein, in the Trust Agreement or, if not defined
therein, in the Indenture.
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to, and agrees with, each Underwriter that:
(a) The Depositor meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-74756) on such Form, including a related preliminary base
prospectus and a preliminary prospectus supplement, for the registration under
the Act of the offering and sale of the Offered Securities. The Depositor may
have filed one or more amendments thereto, each of which amendments has
previously been furnished to you. The Depositor will next file with the
Commission (i) prior to the effectiveness of such registration statement, an
amendment thereto (including the form of final base prospectus and the form of
final prospectus supplement relating to the Offered Securities) or (ii) after
the effectiveness of such registration statement, either (A) a final base
prospectus relating to the Notes in accordance with Rules 430A and 424(b)(1) or
(4) under the Act or (B) a final base prospectus and a final prospectus
supplement relating to the Offered Securities in accordance with Rules 415 and
424(b)(2) or (5).
In the case of clauses (ii) (A) and (B) above, the Depositor has
included in such registration statement, as amended at the Effective Date (as
defined herein), all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in the Prospectus with respect
to the Offered Securities and the offering thereof. As filed, such amendment and
form of final prospectus supplement, or such final prospectus supplement, shall
include all Rule 430A Information, together with all other required information,
with respect to the Offered Securities and the offering thereof 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 you 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 in the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have previously been furnished to you) as the Depositor
has advised you, prior to the Execution Time, will be included or made therein.
If the Registration Statement contains the undertaking
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specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the date and time
as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
including all information deemed to be a part of such registration statement as
of the Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base Prospectus" shall
mean any prospectus referred to above contained in the Registration Statement at
the Effective Date, including any Preliminary Prospectus Supplement.
"Preliminary Prospectus Supplement" shall mean the preliminary prospectus
supplement, if any, to the Base Prospectus which describes the Offered
Securities and the offering thereof and is used prior to the filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement relating to the
Offered Securities that, together with the Base Prospectus, as amended at the
time of such filing, is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
prospectus supplement relating to the Offered Securities, including the Base
Prospectus, included in the Registration Statement at the Effective Date. "Rule
430A Information" means information with respect to the Offered Securities and
the offering of the Offered Securities permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement,
the Base Prospectus, a Preliminary Prospectus Supplement or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, such Preliminary Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus Supplement or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, 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
(and any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the respective rules and
regulations of the Commission thereunder (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
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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 the Depositor 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 information furnished
in writing to the Depositor by or on behalf of the Underwriters through ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated specifically for use in connection
with the preparation of the Registration Statement or the Prospectus or any
supplement thereto.
(c) This Agreement has been duly authorized, executed and delivered by
the Depositor.
(d) None of the Depositor, any of its Affiliates or anyone acting on
behalf of the Depositor or any of its Affiliates has taken any action that would
require qualification of the Trust Agreement under the Trust Indenture Act or
registration of the Depositor or the Trust under the Investment Company Act, nor
will the Depositor or any of its Affiliates act, nor have they authorized or
will they authorize any person to act, in such manner.
3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each Underwriter
represents and warrants to, and agrees with, the Depositor that:
(a) It has not offered or sold, and will not offer or sell, any Offered
Security to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances that have not resulted and will not result in an
offer to the public in the United Kingdom for the purposes of the Public Offers
of Securities Regulation 1995.
(b) It has complied and will comply with all applicable provisions of
the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation
to the Offered Securities in, from or otherwise involving the United Kingdom.
(c) It has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the issue of
the Offered Securities to a person who is of a kind described in Article 11(3)
of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1995 or is a person to whom such document may otherwise lawfully be issued
or passed on.
4. PURCHASE, SALE, AND DELIVERY OF THE OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Depositor agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, Offered Securities in the principal
amounts and at the purchase prices set forth opposite its name in Schedule II
hereto. Delivery of and payment for the Offered
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Securities shall be made at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on [DATE] (the "Closing Date"). Delivery
of the Securities shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Depositor. The Offered
Securities to be so delivered will be initially represented by one or more Notes
and Certificates registered in the name of Cede & Co., the nominee of the
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Offered Securities will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes or definitive Certificates will
be available only under limited circumstances.
5. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
6. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees with
each Underwriter that:
(a) The Depositor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, to
become effective. Prior to the termination of the offering of the Offered
Securities, the Depositor will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Depositor has furnished you
a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Depositor will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend or
supplement the Registration Statement, as filed, or the related Prospectus and
will not effect such amendment or supplement without your consent, which consent
will not unreasonably be delayed or withheld; the Depositor will also advise you
promptly of any request by the Commission for any amendment of or supplement to
the Registration Statement or the Prospectus or for any additional information;
and the Depositor will also advise you promptly of the effectiveness of the
Registration Statement (unless the Registration Statement has become effective
prior to Execution Time) and any amendment thereto, when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b) and of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threat of any
proceeding for that purpose, and the Depositor will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Depositor promptly will
notify you and will prepare and file, or cause to be prepared and filed, with
the Commission, subject to the second sentence of paragraph
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(a) of this Section 6, an amendment or supplement that will correct such
statement or omission or effect such compliance. Any such filing shall not
operate as a waiver or limitation of any right of any Underwriter hereunder.
(d) The Depositor will furnish to the Underwriters copies of the
Registration Statement, each related preliminary prospectus (including the
Preliminary Prospectus Supplement, if any), the Prospectus and all amendments
and supplements to such documents, in each case as soon as available and in such
quantities as the Underwriters request.
(e) The Depositor will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United States as
you may reasonably designate and will continue such qualifications in effect so
long as required for the distribution.
(f) For a period from the date of this Agreement until the retirement of
the Offered Securities, or until such time as the Underwriters shall cease to
maintain a secondary market in the Offered Securities, whichever occurs first,
the Depositor will cause the Servicer to agree to deliver to you the monthly
servicing report, the annual statements of compliance and the annual independent
certified public accountants' reports furnished to the Indenture Trustee or the
Owner Trustee pursuant to the Sale and Servicing Agreement, as soon as such
statements and reports are furnished to the Indenture Trustee or the Owner
Trustee by the Servicer.
(g) So long as any of the Offered Securities is outstanding, the
Depositor will make arrangements to have furnished to you (i) as soon as
practicable after the end of the fiscal year all documents required to be
distributed to holders of Offered Securities or filed with the Commission
pursuant to the Exchange Act or any order of the Commission thereunder and (ii)
from time to time, any other information concerning the Depositor, filed with
any government or regulatory authority that is otherwise publicly available, as
you may reasonably request.
(h) The Depositor will cooperate with the Underwriters and use its best
efforts to permit the Offered Securities to be eligible for clearance and
settlement through the Depository Trust Company.
7. PAYMENT OF EXPENSES. As between the Depositor and the Underwriters,
the Depositor agrees to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Offered Securities to the
Underwriters, (iv) the fees and disbursements of the Depositor's counsel and
accountants, (v) the qualification of the Offered Securities under securities
laws in accordance with the provisions of Section 6(e), including filing fees
and the fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the printing
and delivery to the Underwriters of copies of any blue sky or legal investment
survey prepared in connection with the Offered Securities, (viii) any fees
charged by rating agencies for the rating of the Offered
6
Securities, and (ix) the fees and expenses of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
incurred as a result of providing the opinions required by Sections 8(d), 8(g),
8(h) and 8(m) hereof.
8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase and pay for the Offered Securities will be subject
to the accuracy of the representations and warranties on the part of the
Depositor herein, to the accuracy of the statements of officers of the Depositor
made pursuant to the provisions hereof, to the performance by the Depositor of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00 P.M.
New York City time on the date of determination of the public offering price, if
such determination occurs at or prior to 3:00 P.M. New York City time on such
date or (ii) 12:00 noon New York City time on the business day following the day
on which the public offering price was determined, if such determination occurs
after 3:00 P.M. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Sections 2(a) and 2(b) hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor or you, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of
any supplement thereto), there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly the
business or properties of the Seller, the Servicer, the Trust or the Depositor
which, in the judgment of the Underwriters, materially impairs the investment
quality of the Offered Securities or makes it impractical or inadvisable to
market the Offered Securities; (ii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (iii) any suspension of trading of any
securities of the Seller, the Servicer, the Depositor or any of their affiliates
on any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Offered Securities.
(d) The Depositor shall have furnished to the Underwriters the opinion
of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Depositor, dated the Closing
Date and satisfactory in form and substance to the Underwriters, to the effect
that:
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(i) the Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) each of the Receivables Purchase Agreement, the Sale and
Servicing Agreement and the Trust Agreement has been duly
authorized, executed and delivered by the Depositor and constitutes
a legal, valid and binding obligation of the Depositor, enforceable
against the Depositor in accordance with its terms except as limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, receivership, conservatorship or similar laws relating
to or affecting creditors' rights generally, or the rights of the
FDIC as insurer, regulator, conservator or receiver, of banks the
accounts of which are insured by the FDIC in particular and except
that such counsel need express no opinion as to the availability of
equitable remedies or the enforceability of rights of
indemnification for violations of federal securities laws;
(iii) this Agreement has been duly authorized, executed and
delivered by the Depositor;
(iv) the direction by the Depositor to the Owner Trustee to execute
the Certificates has been duly authorized by the Depositor and, when
the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust
Agreement and delivered and paid for pursuant to this Agreement, the
Certificates will be validly issued and outstanding and entitled to
the benefits of the Trust Agreement;
(v) the direction by the Depositor to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Depositor
and, when the Notes have been duly executed and delivered by the
Owner Trustee, authenticated by the Indenture Trustee in accordance
with the Indenture, and delivered and paid for pursuant to this
Agreement, the Notes will constitute legal, valid and binding
obligations of the Trust (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditor's rights generally from time to time
in effect) and will be entitled to the benefits of the Indenture;
(vi) no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated
herein or in the Receivables Purchase Agreement, the Sale and
Servicing Agreement, the Trust Agreement or the Indenture
(collectively, the "Basic Documents"), except such as may be
required under the blue sky or securities laws of any jurisdiction
in connection with the purchase and sale of the Offered Securities
by the Underwriters, the filing of the UCC-1 financing statements
relating to the conveyance of the Receivables and the other Trust
Property by National City Bank to the Depositor and of the
Receivables and the other Trust Property by the Depositor to the
Trust and by the
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Trust to the Indenture Trustee for the benefit of the Noteholders
and the filing of the UCC-1 financing statements relating to the
security interests in the Eligible Investments included in the
Reserve Account, and such other approvals (which shall be specified
in such opinion) as have been obtained and such filings as have been
made or are in the process of being made;
(vii) none of the issue and sale of the Offered Securities, the
execution and delivery of this Agreement, the Sale and Servicing
Agreement, the Trust Agreement or the Receivables Purchase
Agreement, the consummation of any other of the transactions herein
or therein contemplated or the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
constitute a default under, the charter or bylaws of the Depositor
or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Depositor is a party or by which it
is bound, or any judgment, order or decree known to such counsel to
be applicable to the Depositor of any court, regulatory body,
administrative agency, governmental body, or arbitrator having
jurisdiction over the Depositor;
(viii) to the best of such counsel's knowledge, other than as
disclosed in the Prospectus, there are no actions, proceedings or
investigations pending or threatened against the Depositor before
any court, administrative agency or other tribunal (1) asserting the
invalidity of any of the Basic Documents, (2) seeking to prevent the
consummation of any of the transactions contemplated by any of the
Basic Documents or the execution and delivery thereof or (3) that
might materially and adversely affect the validity or enforceability
of this Agreement or any Basic Document;
(ix) the Offered Securities and the Basic Documents conform in all
material respects with the descriptions thereof contained in the
Prospectus;
(x) assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, no qualification of
the Trust Agreement under the Trust Indenture Act is necessary for
the offer and sale by the Underwriters of the Offered Securities in
the manner contemplated by this Agreement;
(xi) the Indenture has been duly qualified under the Trust Indenture
Act;
(xii) the Depositor is not, and will not as a result of the offer
and sale of the Offered Securities as contemplated in the Prospectus
(and any supplement thereto) and this Agreement become, an
"investment company" as defined in the Investment Company Act or a
company "controlled by" an "investment company" within the meaning
of the Investment Company Act; and
(xiii) the Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have
9
been instituted or are pending or contemplated under the Act, and
the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
(other than any financial, numerical or statistical information
contained or incorporated by reference therein, as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
Such counsel shall also state that such counsel has examined the
Registration Statement and the Prospectus and nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement (exclusive of (i) any information incorporated therein by reference,
(ii) any financial, numerical or statistical information contained therein or
omitted therefrom and (iii) the National City Bank Information, as to which such
counsel may make no statement), at the time the Registration Statement became
effective, contained any 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, or that the Prospectus (exclusive of (i) any
information incorporated therein by reference, (ii) any financial, numerical or
statistical information contained therein or omitted therefrom and (iii) the
National City Bank Information, as to which such counsel may make no statement),
at the date thereof or at the Closing Date, included or includes any 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. As used in this
paragraph, the term "National City Bank Information" means the information set
forth in the Prospectus and Prospectus Supplement under the captions:
["SUMMARY--Seller"; "SUMMARY--Composition of the Receivables"; "RISK
FACTORS--Maturity and Prepayment Assumptions are Estimates"; "RISK
FACTORS--Geographic Concentration May Result in More Risk to You"; "NATIONAL
CITY BANK"; and "THE RECEIVABLES POOL"].
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of any jurisdiction other than the State
of New York, the Delaware General Corporation Law or the United States, to the
extent such counsel deems proper and specifies in such opinion, upon the opinion
of other counsel of good standing whom such counsel reasonably believes to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Seller, the Servicer, the Depositor and public
officials.
All references in this Section 8(d) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(e) The Underwriters shall have received the opinion of ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for National City Bank, dated the Closing Date and
satisfactory in form and scope to the Depositor and the Underwriters, to the
effect that:
(i) National City 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
originate, purchase, hold, sell and service the Receivables, to
10
enter into and perform its obligations under the Basic Documents to
which it is a party, and to conduct its business as described in the
Prospectus Supplement;
(ii) the Receivables Purchase Agreement has been duly authorized,
executed and delivered by National City Bank and constitutes a
legal, valid and binding obligation of National City Bank,
enforceable against National City Bank in accordance with its terms
except as limited by bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or similar laws relating
to or affecting creditors' rights generally or the rights of
creditors, or of the FDIC as insurer, regulator, conservator or
receiver, of banks the accounts of which are insured by the FDIC in
particular and except that such counsel need express no opinion as
to the availability of equitable remedies or the enforceability of
rights of indemnification for violations of federal securities laws;
(iii) the Sale and Servicing Agreement has been duly authorized,
executed and delivered by National City Bank and constitutes a
legal, valid and binding obligation of National City Bank,
enforceable against National City Bank in accordance with its terms
except as limited by bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or similar laws relating
to or affecting creditors' rights generally or the rights of
creditors, or of the FDIC as insurer, regulator, conservator or
receiver, of banks the accounts of which are insured by the FDIC in
particular and except that such counsel need express no opinion as
to the availability of equitable remedies;
(iv) the Administration Agreement has been duly authorized, executed
and delivered by National City Bank and constitutes a legal, valid
and binding obligation of National City Bank, enforceable against
National City Bank in accordance with its terms except as limited by
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or similar laws relating to or affecting creditors'
rights generally or the rights of creditors, or of the FDIC as
insurer, regulator, conservator or receiver, of banks the accounts
of which are insured by the FDIC in particular and except that such
counsel need express no opinion as to the availability of equitable
remedies;
(v) none of the sale of the Receivables by National City Bank to the
Depositor pursuant to the Receivables Purchase Agreement, the
execution and delivery by National City Bank of the Sale and
Servicing Agreement, the Receivables Purchase Agreement or any other
Basic Document to which National City Bank is a party, the
consummation of any of the transactions therein contemplated or the
fulfillment of the terms thereof by National City Bank will conflict
with, result in a breach or violation of, or constitute a default
under, any law or the articles of association or bylaws of National
City Bank or the terms of any material indenture or other material
agreement or instrument known to such counsel and to which National
City Bank is a party or by which National City Bank is bound or any
judgment, order or decree known to such counsel to be applicable to
National City Bank of any court, regulatory body, administrative
agency, governmental body, or arbitrator having jurisdiction over
National City Bank;
11
(vi) there are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry,
threatened before any court, administrative agency or other tribunal
(1) asserting the invalidity of any of the Basic Documents to which
National City Bank is a party, (2) seeking to prevent the
consummation of any of the transactions contemplated by any of the
Basic Documents to which National City Bank is a party or the
execution and delivery thereof or (3) that might materially and
adversely affect the performance by National City Bank of its
obligations under, or the validity or enforceability of, any Basic
Document to which National City Bank is a party;
(vii) to the best knowledge of such counsel, National City Bank is
not in violation of its articles of association or bylaws and no
default exists and no event has occurred which, with notice, lapse
of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any agreement
to which National City Bank is a party or by which it is bound,
which default is or would have a material adverse effect on the
financial condition, earnings, prospects, business, or properties of
National City Bank, or on the transactions contemplated by the Basic
Documents;
(viii) to the best knowledge of such counsel, National City Bank has
obtained all material licenses, permits and other governmental
authorizations that are necessary to the conduct of its business;
such licenses, permits and other governmental authorizations are in
full force and effect, and National City Bank and is in all material
respects complying therewith; and National City Bank is otherwise in
compliance with all laws, rules, regulations and statutes of any
jurisdiction to which it is subject, except where non-compliance
would not have a material adverse effect on National City Bank or on
the transactions contemplated by the Basic Documents;
(ix) no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in any Basic Document
to which National City Bank is a party, except such as may be
required under the blue sky or securities laws of any jurisdiction
in connection with the purchase and sale of the Offered Securities
by the Underwriters, and such other approvals (which shall be
specified in such opinion) as have been obtained and such filings as
have been made or are in the process of being made;
(x) the Offered Securities and the Basic Documents to which National
City Bank is a party conform in all material respects with the
descriptions thereof contained in the Prospectus Supplement;
(xi) the Basic Documents to which National City Bank is a party meet
each of the requirements set forth in Section 13(e) of the FDI Act,
and neither Section 11(d)(9) nor Section 11(n)(4)(I) of the FDI Act
would prevent such document from forming the basis of a claim
against the FDIC as conservator or receiver or
12
in its corporate capacity, or against any bridge bank chartered
pursuant to Section 11(n) of the FDI Act, respectively; and
(xii) the Contracts included in the Receivables are "chattel paper"
under Article 9 of the Uniform Commercial Code.
Such counsel shall also state that such counsel has examined the
Prospectus Supplement and nothing has come to such counsel's attention that
would lead such counsel to believe that the Seller Information contained therein
(exclusive of (i) any information incorporated therein by reference and (ii) any
financial, numerical or statistical information contained therein or omitted
therefrom, as to which such counsel may make no statement), at the date thereof
or at the Closing Date, included or includes any 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. As used in this paragraph, the term "Seller Information"
means the information set forth in the Prospectus Supplement under the captions:
["SUMMARY--Seller; "SUMMARY--Composition of the Receivables"; "RISK
FACTORS--Geographic Concentration May Result in More Risk to You"; "NATIONAL
CITY BANK"; "NATIONAL CITY BANK'S AUTOMOBILE FINANCING PROGRAMS"; and "THE
RECEIVABLES POOL"].
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Ohio or the United States, to the extent such counsel deems proper and specifies
in such opinion, upon the opinion of other counsel of good standing whom such
counsel reasonably believes to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of National City Bank and
the Depositor and certificates of public officials.
All references in this Section 8(e) to the Prospectus shall be deemed to
include any amendment or supplement thereto at the Closing Date.
(f) You shall have received an opinion addressed to you of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as special federal tax counsel to the Trust,
to the effect that the statements in the final Prospectus Supplement under the
headings "Summary--Tax Status", "Summary--ERISA Considerations" and under
"Certain Federal Income Tax Consequences" and in the final Base Prospectus under
the headings "Summary of Terms--Tax Status", "Summary of Terms--ERISA
Considerations", "Material Federal Income Tax Consequences" and "ERISA
Considerations" (to the extent that such sections (other than such "ERISA
Considerations" sections) relate to federal income tax consequences), to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been reviewed by such counsel and accurately describe
the material federal income tax consequences to holders of the Offered
Securities.
(g) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, in its capacity as counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the Offered
Securities, the Prospectus (as amended or supplemented at the Closing Date) and
other related matters as the Underwriters may reasonably
13
require, and the Depositor shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(h) You shall have received an opinion of [____], counsel to the
Indenture Trustee, addressed to you and the Depositor, dated the Closing Date
and satisfactory in form and substance to the Underwriters, to the effect that:
(i) The Indenture Trustee is a [banking corporation] duly
incorporated and validly existing under the laws of [the State of
New York].
(ii) The Indenture Trustee has the full corporate trust power to
accept the offices of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement and the
performance by the Indenture Trustee of its obligations under the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized by all necessary corporate
action of the Indenture Trustee and each has been duly executed and
delivered by the Indenture Trustee.
(iv) The Indenture, the Sale and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of
the Indenture Trustee enforceable against the Indenture Trustee in
accordance with their terms under the laws of the State of New York
and the federal law of the United States.
(v) The execution and delivery by the Indenture Trustee of the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement do not require any consent, approval or authorization of,
or any registration or filing with, any New York or United States
federal governmental authority, other than the qualification of the
Indenture Trustee under the Trust Indenture Act.
(vi) Each of the Notes has been duly authenticated by the Indenture
Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture or the Administration Agreement nor the fulfillment of the
terms thereof by the Indenture Trustee will conflict with, result in
a breach or violation of, or constitute a default under any law or
the charter, bylaws or other organizational documents of the
Indenture Trustee or the terms of any indenture or other agreement
or instrument known to such counsel to which the Indenture Trustee
or any of its subsidiaries is a party or is bound or any judgment,
order or decree known to such counsel to be applicable to the
Indenture Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or any of
its subsidiaries.
14
(viii) To the knowledge of such counsel there is no action, suit or
proceeding pending or threatened against the Indenture Trustee (as
trustee under the Indenture or in its individual capacity) before or
by any governmental authority that, if adversely decided, would
materially adversely affect the ability of the Indenture Trustee to
perform its obligations under the Indenture, the Sale and Servicing
Agreement or the Administration Agreement.
(ix) The execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture and the
Administration Agreement will not subject any of the property or
assets of the Trust or any portion thereof to any Lien created by or
arising under the Indenture Trustee that is unrelated to the
transactions contemplated in such agreements.
(i) You shall have received an opinion of [______], counsel to the Owner
Trustee and Special Delaware counsel to the Trust, addressed to you and the
Depositor, dated the Closing Date and satisfactory in form and substance to the
Underwriters.
(j) The Underwriters shall have received such opinions, addressed to the
Underwriters and dated the Closing Date, as are delivered to the Rating
Agencies.
(k) The Underwriters shall have received an opinion from ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for National City Bank, dated the Closing Date and
satisfactory in form and scope to the Depositor and the Underwriters regarding
the conveyance of the Receivables by National City Bank to the Depositor and the
rights of the Depositor and its assignees in the event of the insolvency of
National City Bank.
(l) The Underwriters shall have received an opinion from Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Depositor, dated the Closing Date and
satisfactory in form and substance to the Underwriters regarding the conveyance
of the Receivables by the Depositor to the Trust and the conveyance by the Trust
of the Receivables and the other Trust Property to the Indenture Trustee for the
benefit of the Noteholders.
(m) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the Depositor
in which such officer shall state that, to the best of his or her knowledge
after reasonable investigation:
(i) the representations and warranties of the Depositor contained in
this Agreement and the Basic Documents are true and correct; the
Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date;
(ii) since the date of the most recent financial information
included in the Prospectus, no material adverse change, or any
development involving a prospective material adverse change, in or
affecting particularly the business or properties of the Depositor
or the Trust has occurred; and
15
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission.
(n) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer from National
City Bank in which each officer shall state that, to the best of his or her
knowledge after reasonable investigation:
(i) the representations and warranties of National City Bank
contained in the Basic Documents are true and correct; National City
Bank has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or
prior to the Closing Date; and
(ii) since the date of the most recent financial information
included in the Prospectus, no material adverse change, or any
development involving a prospective material adverse change,
in or affecting particularly the business or properties of
National City Bank has occurred.
(o) The Underwriters shall have received evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of Ohio and the State of
Delaware reflecting the sale of the Receivables and the other Trust Property by
National City Bank to the Depositor and of the Receivables and the other Trust
Property by the Depositor to the Trust and the pledge of the Receivables and the
other Trust Property by the Trust to the Indenture Trustee for the benefit of
the Noteholders.
(p) The Class [A-1] Notes shall have been rated ["Prime-1"] by [RATING
AGENCY] and ["A-1+"] by [RATING AGENCY], the Class [A-2], Class [A-3], and Class
[A-4] Notes shall have been rated ["AAA"] by [RATING AGENCY] and ["Aaa"] by
[RATING AGENCY], respectively, the Class [B] Notes shall have been rated ["A"]
by [RATING AGENCY] and ["A2"] by [RATING AGENCY], and the Certificates shall
have been rated ["BBB"] by [RATING AGENCY] and ["Baa3"] by [RATING AGENCY].
(q) At the Execution Time and at the Closing Date, [____] shall have
furnished to the Underwriters letters, dated respectively as of the Execution
Time and as of the Closing Date, substantially in the forms of the drafts to
which the Underwriters have previously agreed and otherwise in form and
substance satisfactory to the Underwriters.
(r) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Prospectus, there shall not have been any
change or any development involving a prospective change in or affecting the
business or properties of National City Bank or the Depositor the effect of
which is, in the judgment of the Underwriters, so material and adverse as to
make it impractical or inadvisable to market the Offered Securities as
contemplated by the Prospectus.
(s) Subsequent to the Execution Time, there shall not have been any
reduction or withdrawal by any "nationally recognized statistical rating
organization" (as defined for purposes
16
of Rule 436(g) under the Securities Act) of the current rating of any securities
issued or originated by the Depositor, National City Bank or any of their
respective affiliates or any notice given of any intended or potential reduction
in or withdrawal of any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(t) Prior to the Closing Date, the Depositor and National City Bank
shall have furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 8 have not been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement are not reasonably satisfactory in all material respects in form and
substance to the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Depositor in writing or by telephone or telegraph confirmed in writing.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Depositor agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities 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) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
preliminary Base Prospectus, the Preliminary Prospectus Supplement (if any), the
Base Prospectus or the Prospectus or any amendment or supplement thereto, 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, in the light of the circumstances under which they were
made, not misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Depositor 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 in, or omission or alleged omission from, any of such documents, in
reliance upon and in conformity with written information furnished to the
Depositor by or on behalf of the Underwriters through ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated specifically for inclusion therein. This indemnity
agreement will be in addition to any liability that the Depositor may otherwise
have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Depositor, its directors, its officers and each person who
controls the Depositor within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Depositor
to the Underwriters, but only with reference to written information relating to
the Underwriters furnished to the Depositor by the Underwriters through ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated specifically for inclusion in the
Registration Statement, the preliminary Base Prospectus, the Preliminary
Prospectus Supplement (if any), the
17
Base Prospectus or the Prospectus or any amendment or supplement thereto. This
indemnity agreement will be in addition to any liability that the Underwriters
may otherwise have. The Depositor acknowledges that the statements set forth in
the last paragraph of the cover page and under the heading "Underwriting" in the
Prospectus Supplement constitute the only information furnished in writing by or
on behalf of the Underwriters for inclusion in the Prospectus (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Depositor and each Underwriter agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Depositor and the several Underwriters may
be subject in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on the one hand and by the several Underwriters on the
other from the offering of the
18
Offered Securities; provided, however, that in no case shall any Underwriter be
responsible for any amount in excess of the purchase discount or commission
applicable to the Offered Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Depositor and each Underwriter shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Depositor on the one hand and of the several
Underwriters on the other in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Depositor shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits received by
any Underwriter shall be deemed to be equal to the total purchase discounts and
commissions received by such Underwriter from the Depositor in connection with
the purchase of the Offered Securities hereunder. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Depositor on the one hand or the several
Underwriters on the other. The Depositor and the several Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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 9, each person who controls any
Underwriter within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee and agent of such Underwriter shall have
the same rights to contribution as such Underwriter, and each person who
controls the Depositor within the meaning of either the Securities Act or the
Exchange Act and each officer and director of the Depositor shall have the same
rights to contribution as the Depositor, subject in each case to the applicable
terms and conditions of this paragraph (d).
10. DEFAULTS OF THE UNDERWRITERS. If any Underwriter defaults in its
obligation to purchase the Offered Securities hereunder on the Closing Date and
arrangements satisfactory to the nondefaulting Underwriters and the Depositor
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of the nondefaulting Underwriters or the Depositor, except as provided
in Section 12. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. NO BANKRUPTCY PETITION. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Depositor or by a trust for which the Depositor was the
depositor, which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other Person in
instituting against, the Depositor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or any of their officers, and the several Underwriters set forth in or
made pursuant to this Agreement or
19
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof made by or on behalf of any
Underwriter or the Depositor or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Depositor shall
remain responsible for the expenses to be paid or reimbursed by the Depositor
pursuant to Section 7 and the respective obligations of the Depositor and the
Underwriters pursuant to Section 9 shall remain in effect. If for any reason the
purchase of the Offered Securities by the Underwriters is not consummated (other
than because of a failure to satisfy the conditions set forth in items (ii),
(iv) and (v) of Section 8(c)), the Depositor will reimburse the Underwriters,
upon demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by it in connection with the offering of the
Offered Securities. Nothing contained in this Section 12 shall limit the
recourse of the Depositor against the Underwriters.
13. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and
if sent to the Depositor, will be mailed, delivered or telecopied to it at ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. Any such notice will take effect at the
time of receipt.
14. SUCCESSORS. This 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 Section 9, and no other
person will have any right or obligations hereunder.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. APPLICABLE LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
20
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Depositor and the Underwriter in
accordance with its terms.
Very truly yours,
NATIONAL CITY VEHICLE RECEIVABLES INC., as
Depositor
By:
-----------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first written above:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
for itself and as representative of the
Underwriters
By:
-----------------------------------------
Name:
Title:
21
SCHEDULE I
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
[Underwriter]
[Underwriter]
22
SCHEDULE II
OFFERED SECURITY PRINCIPAL AMOUNT PRICE (%)
Class [A-1] Notes
-----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $[___] [___]%
[Underwriter] $[___] [___]%
[Underwriter] $[___] [___]%
Class [A-2] Notes
-----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $[___] [___]%
[Underwriter] $[___] [___]%
[Underwriter] $[___] [___]%
Class [A-3] Notes
-----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $[___] [___]%
[Underwriter] $[___] [___]%
[Underwriter] $[___] [___]%
Class [A-4] Notes
-----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $[___] [___]%
[Underwriter] $[___] [___]%
[Underwriter] $[___] [___]%
Class [B] Notes
---------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $[___] [___]%
Incorporated
23
Certificates
------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $[___] [___]%
Incorporated
24
