Exhibit 1.1
USAA AUTO OWNER TRUST 2002-[ ]
Asset Backed Notes
Asset Backed Certificates
USAA ACCEPTANCE, LLC
(DEPOSITOR)
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
UNDERWRITING AGREEMENT
----------------------
__________, ____
[Name of Representative],
as Representative of the
Several Underwriters named
on Schedule I hereto
_______________
_______________
Dear Sirs:
USAA Acceptance, LLC, a Delaware limited liability company (the
"Depositor"), proposes to form an owner trust, USAA Auto Owner Trust 2002-[ ]
(the "Issuer"), pursuant to a Trust Agreement (the "Trust Agreement") to be
dated as of _________, ___ between the Depositor and ___________, as owner
trustee (the "Owner Trustee"). The Issuer will issue (i) $_____________
principal amount of its Class A-1 ___% Asset Backed Notes (the "Class A-1
Notes"), (ii) $______________ principal amount of its Class A-2 ___% Asset
Backed Notes (the "Class A-2 Notes"), (iii) $____________ principal amount of
its Class A-3 ___% Asset Backed Notes (the "Class A-3 Notes", and together
with the Class A-1 Notes and the Class A-2 Notes, the "Notes") pursuant to an
indenture to be dated as of _______, ___ (the "Indenture"), between the Issuer
and _________, as indenture trustee (the "Indenture Trustee"); and (v)
$___________ principal amount of its Class B ___% Asset Backed Certificates,
representing fractional undivided interests in the Issuer (the "Certificates";
and together with the Notes, the "Securities"). The assets of the Issuer will
include, among other things, a pool of motor vehicle installment loans made by
the Bank and secured by new and used cars and light duty trucks (the
"Receivables"), certain monies due or received thereunder on or after
_________, ___ (the "Cutoff Date"), security interests in the vehicles
financed thereby, certain accounts, and the proceeds thereof, and the proceeds
from claims on certain insurance policies. The Receivables will be sold to the
Depositor by the USAA Federal Saving Bank (the "Bank"), as seller (in such
capacity, the "Seller"), pursuant to a Receivables Purchase Agreement (the
"Receivables
Purchase Agreement") to be dated as of _________, ___, between the Bank and
the Depositor. The Depositor will sell the Receivables to the Issuer, pursuant
to a Sale and Servicing Agreement (the "Sale and Servicing Agreement") to be
dated as of _________, ___, among the Depositor, the Bank, as Seller and as
servicer (in such capacity, the "Servicer") and the Issuer. The Servicer will
service the Receivables pursuant to the Sale and Servicing Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the Sale and Servicing Agreement.
This is to confirm the agreement concerning the purchase of the Securities
from the Bank by the several Underwriters named in Schedule I hereto (the
"Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND THE
BANK. The Depositor and the Bank (each a "Representing Party" and collectively
the "Representing Parties"), jointly and severally, represent and warrant to
and agree with the several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-[ ]) has been
filed by the Depositor with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act of 1933,
as amended (the "Securities Act"). Such registration statement may have
been amended or supplemented from time to time prior to the date hereof.
Any such amendment or supplement was filed with the Commission in
accordance with the Securities Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations") and any such
amendment has become effective under the Securities Act. The Depositor
proposes to file with the Commission pursuant to Rule 424(b) of the
Rules and Regulations a prospectus supplement (the "Prospectus
Supplement") to the prospectus dated ___________, ___, relating to the
Securities and the method of distribution thereof. Copies of such
registration statement, any amendment or supplement thereto, such
prospectus and the Prospectus Supplement have been delivered to you.
Such registration statement, including exhibits thereto and such
prospectus, as amended or supplemented to the date hereof, and as
further supplemented by the Prospectus Supplement, are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively. The conditions to the use of a registration statement on
Form S-3 under the Securities Act have been satisfied.
(b) The Registration Statement, at the time it became effective,
any post-effective amendment thereto, at the time it became effective,
and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the Securities Act and the Rules and Regulations and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and did not include any untrue
statement of a material fact and, in the case of the Registration
Statement and any post-effective amendment thereto, did not omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, in the case of the
Prospectus, did not omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; on the Closing Date (as
hereinafter defined), the Registration Statement and the Prospectus, as
amended or
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supplemented as of the Closing Date, will comply in all material
respects with the applicable requirements of the Securities Act and the
Rules and Regulations and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and neither the Prospectus nor
any amendment or supplement thereto will include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representation and warranty in
the preceding sentence does not apply to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee under
the Trust Indenture Act or (ii) that information contained in or omitted
from the Registration Statement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the
Underwriters' Information (as defined herein). The Indenture has been
qualified under the Trust Indenture Act.
(c) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware with the limited liability company power and authority to own
its properties and conduct its business as described in the Registration
Statement and the Prospectus, and now has, the power, authority and
legal right to acquire, own and sell the Receivables.
(d) The Bank has been duly organized and is validly existing as a
federally chartered savings association and is a member of the Federal
Home Loan Bank System. The Bank is in good standing with the Office of
Thrift Supervision and has the power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
such properties are presently owned, leased and operated and as such
business is presently conducted, and had at all relevant times, and now
has, the power, authority and legal right to own and sell the
Receivables.
(e) The representations and warranties of the Depositor in Section
5.1 of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
(f) The representations and warranties of the Servicer in Section
6.1 of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
(g) Each Representing Party has the power and authority to execute
and deliver this Agreement and to carry out the terms of this Agreement
and the execution, delivery and performance by each Representing Party
of this Agreement has been duly authorized by such Representing Party.
(h) This Agreement has been duly executed and delivered by the
Representing Parties.
(i) When authenticated by the Owner Trustee in accordance with the
Trust Agreement and delivered and paid for pursuant to this Agreement,
the Certificates will be duly issued and entitled to the benefits and
security afforded by the Trust Agreement and the Sale and Servicing
Agreement.
(j) When authenticated by the Indenture Trustee in accordance with
the
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Indenture and delivered and paid for pursuant to this Agreement, the
Notes will be duly issued and constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights in general or the rights of
creditors of federal savings associations and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(k) The execution, delivery and performance of this Agreement and
the consummation by each of the Representing Parties of the transactions
contemplated hereby shall not conflict with, result in any breach of any
of the terms and provisions of or constitute (with or without notice or
lapse of time) a default under, the organizational documents of such
Representing Party, or any indenture, agreement or other instrument to
which such Representing Party is a party or by which such Representing
Party is bound, or violate any law or any order, rule or regulation
applicable to such Representing Party of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over such Representing Party or any
of its properties; and, except for the registration of the Securities
under the Securities Act, the qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and applicable
state securities laws in connection with the purchase and distribution
of the Securities by the Underwriters, no permit, consent, approval of,
or declaration to or filing with, any governmental authority is required
in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby.
(l) There are no proceedings or investigations pending or, to the
knowledge of each Representing Party, threatened before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over such Representing Party or its
properties (i) asserting the invalidity of this Agreement or any of the
Securities, (ii) seeking to prevent the issuance of any of the
Securities or the consummation of any of the transactions contemplated
by this Agreement, (iii) seeking any determination or ruling that, if
determined adversely to such Representing Party, is reasonably likely to
materially and adversely affect the performance by such Representing
Party of its obligations under, or the validity or enforceability of,
the Securities or this Agreement, or (iv) that may adversely affect the
federal or state income, excise, franchise or similar tax attributes of
the Securities.
(m) Each Representing Party (i) is not in violation of its
organizational documents, (ii) is not in default and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, agreement, mortgage,
deed of trust or other instrument to which such Representing Party is a
party or by which such Representing Party is bound or to which any of
such Representing Party's property or assets is subject or (iii) is not
in violation in any respect of any law, order, rule or regulation
applicable to such Representing Party or any of such Representing
Party's
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property of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or any of its property, except, in the case of
clauses (ii) and (iii), for any defaults or violations that would not,
individually or in the aggregate, have a material adverse effect on (A)
the performance by such Representing Party of its obligations under, or
the validity or enforceability of, the Securities, the Basic Documents
or this Agreement or (B) the condition (financial or otherwise), results
of operations, business or prospects of such Representing Party.
(n) Neither the Issuer, the Depositor, nor the Bank is an
"investment company" or under the "control" of an "investment company"
within the meaning thereof as defined in the Investment Company Act of
1940, as amended.
(o) Neither of the Bank nor the Depositor or anyone acting on
their behalf has taken any action that would require qualification of
the Trust Agreement under the Trust Indenture Act.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, the Depositor agrees to cause the Issuer to sell
to each of the Underwriters, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase from the
Depositor, the respective principal amount of Securities set forth opposite
the name of such Underwriter in Schedule 1 hereto at a purchase price equal to
(i) with respect to the Class A-1 Notes, ____% of the principal amount
thereof, (ii) with respect to the Class A-2 Notes, ____% of the principal
amount thereof, (iii) with respect to the Class A-3 Notes, _____ % of the
principal amount thereof and (iv) with respect to the Certificates, _____% of
the principal amount thereof.
The Depositor shall not be obligated to deliver any of the Securities
except upon payment in full for all the Securities to be purchased as provided
herein.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and payment
for the Securities shall be made at the office of __________, or at such other
place as shall be agreed upon by [Name of Representative], as representative
of the Underwriters (the "Representative"), and the Depositor, at 9:00 A.M.,
______ time, on ________, ___, or at such other date or time, not later than
five full business days thereafter, as shall be agreed upon by the
Representative and the Depositor (such date and time being referred to herein
as the "Closing Date"). On the Closing Date, the Securities shall be delivered
to the Representative for the account of each Underwriter against payment to
or upon the order of the Depositor of the purchase price in immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, each class of the
Securities shall be represented by one or more global certificates registered
in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC").
The interest of the beneficial owners of the Securities will be represented by
book-entries on the records of DTC and participating members thereof.
Definitive certificates representing the Securities will be available only
under limited circumstances.
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4. FURTHER AGREEMENTS OF THE DEPOSITOR. The Depositor agrees with each
of the several Underwriters:
(a) To file the Prospectus Supplement with the Commission pursuant
to and in accordance with Rule 424(b) of the Rules and Regulations
within the time period prescribed by such rule and provide evidence
satisfactory to the Representative of such timely filing.
(b) During any period in which a prospectus relating to the
Securities is required to be delivered under the Securities Act: to
advise the Representative promptly of any proposal to amend the
Registration Statement or amend or supplement the Prospectus and not to
effect any such amendment or supplementation without the consent of the
Representative; to advise the Representative promptly of (i) the
effectiveness of any post-effective amendment to the Registration
Statement, (ii) any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) the
issuance by the Commission of any order preventing or suspending the use
of any prospectus relating to the Securities or the initiation or
threatening of any proceedings for that purpose and (v) the receipt by
the Depositor of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use
its reasonable best efforts to prevent the issuance of any such stop
order or of any order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification and, if
any such stop order or order of suspension is issued, to obtain the
lifting thereof at the earliest possible time.
(c) If, during any period in which a prospectus relating to the
Securities is required to be delivered under the Securities Act, any
event shall have occurred as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or if for any
other reason it shall be necessary at such time to amend or supplement
the Prospectus in order to comply with the Securities Act, to notify the
Representative immediately thereof, and to promptly prepare and file
with the Commission, subject to paragraph (b) of this Section 4, an
amendment or a supplement to the Prospectus such that the statements in
the Prospectus, as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading, or such that the Prospectus will comply with the Securities
Act.
(d) To furnish promptly to each of the Representative and counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith; and during the period described in paragraph (c) of this
Section 4, to deliver promptly without charge to the Representative such
number of the following documents as the Representative may from time to
time reasonably request:
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(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and each of the Basic Documents) and
(ii) any preliminary prospectus supplement, the Prospectus and any
amendment or supplement thereto.
(e) During any period in which a prospectus relating to the
Securities is required to be delivered under the Securities Act, to file
promptly with the Commission any amendment to the Registration Statement
or the Prospectus or any supplement to the Prospectus that may, in the
judgment of the Depositor or the Representative, be required by the
Securities Act or requested by the Commission.
(f) For so long as any of the Securities are outstanding or until
such time as the Underwriters shall cease to maintain a secondary market
in the Securities, to furnish to the Underwriters (i) copies of all
materials furnished by the Issuer to the holders of the Securities and
all reports and financial statements furnished by the Issuer to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder and (ii) from time to time, such other information
concerning the Bank or the Depositor filed with any government or
regulatory authority or national securities exchange which is otherwise
publicly available as the Representative may reasonably request and such
other information concerning the Issuer as the Representative may
reasonably request.
(g) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Securities; provided that in connection therewith neither the Bank nor
the Depositor shall be required to qualify to do business or to file a
general consent to service of process in any jurisdiction.
(h) During the period from the date of the Prospectus to and
including the business day after the Closing Date, to not offer for
sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any
offering of, any securities collateralized by, or evidencing an
ownership interest in, a pool of installment loans for new and used cars
and light duty trucks without the prior written consent of the
Representative.
(i) For a period from the date of this Agreement until the
retirement of the Securities, to deliver to you the annual statement of
compliance and the annual independent certified public accountants'
report furnished to the Owner Trustee and the Indenture Trustee,
pursuant to the Sale and Servicing Agreement, as soon as such statements
and reports are furnished to the Owner Trustee and the Indenture
Trustee, respectively.
(j) To the extent, if any, that the ratings provided with respect
to the Securities by _________ ("____") and _________ ("____") are
conditional upon the furnishing of documents or the taking of any other
actions by the Bank or the Depositor,
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to furnish such documents and take any such other actions.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder are subject to the accuracy, when made
and on the Closing Date, of the representations and warranties of the
Representing Parties contained herein, to the accuracy of the statements of
the Representing Parties made in any certificates pursuant to the provisions
hereof, to the performance by the Representing Parties of their respective
obligations hereunder, and to each of the following additional terms and
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with
to the reasonable satisfaction of the Representative; and the
Representing Parties shall have filed the Prospectus Supplement with the
Commission pursuant to Rule 424(b) of the Rules and Regulations within
the time period prescribed by such rule.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Securities,
each of the Basic Documents, the Registration Statement and the
Prospectus, and all other legal matters relating to such agreements and
the transactions contemplated hereby and thereby shall be satisfactory
in all material respects to counsel for the Underwriters, and the
Representing Parties shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(c) The Trust Agreement shall have been duly executed and
delivered by the Depositor and the Owner Trustee and the Certificates
shall have been duly executed and delivered by the Owner Trustee on
behalf of the Issuer and duly authenticated by the Owner Trustee.
(d) The Sale and Servicing Agreement shall have been duly executed
and delivered by the Depositor, the Servicer, the Seller and the Issuer.
(e) The Indenture shall have been duly executed and delivered by
the Issuer and the Indenture Trustee and the Notes shall have been duly
executed and delivered by the Issuer and duly authenticated by the
Indenture Trustee.
(f) The Representative shall have received evidence satisfactory
to it and its counsel that on or before the Closing Date, UCC-1
financing statements required to be filed on or prior to the Closing
Date pursuant to the Basic Documents have been filed.
(g) [Xxxxxxx X. Xxxxxx], ______ of the Bank, shall have furnished
to the Representative his written opinion, addressed to the Underwriters
and dated the Closing Date, regarding the due organization and power and
authority of the Seller, the due authorization, execution and delivery
by the Seller of the Basic Documents to which it is a party, no
conflicts or violations of its charter or by-laws, contracts or law and
other related matters, in form and substance reasonably satisfactory to
the Representative and
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its counsel.
(h) _____________, special Delaware counsel to the Depositor,
shall have furnished to the Representative their written opinion, as
counsel to the Depositor, addressed to the Underwriters and dated the
Closing Date, regarding (i) the due organization of the Depositor and
(ii) other general Delaware law matters with respect to the Depositor,
including, without limitation, the due authorization, execution and
delivery of the Basic Documents by the Depositor, in each case, in form
and substance reasonably satisfactory to the Representative and its
counsel.
(i) _____________, special Delaware counsel to the Issuer, shall
have furnished to the Representative their written opinion, as counsel
to the Issuer, addressed to the Underwriters and dated the Closing Date,
regarding (i) the due organization of the Issuer, (ii) the
enforceability of the Trust Agreement, (iii) other general Delaware law
matters with respect to the Issuer, including, without limitation, the
due authorization, execution and delivery of the Basic Documents by the
Issuer and the due authorization and issuance of the Certificates, and
(iv) the perfection and priority of the security interests created by
the Indenture, in each case, in form and substance reasonably
satisfactory to the Representative and its counsel.
(j) Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative their written opinion, addressed to the Underwriters and
dated the Closing Date, regarding (i) the enforceability of the Basic
Documents (other than the Trust Agreement and the Note Depository
Agreement), (ii) the validity of the security interests created thereby,
(iii) the due issuance and enforceability of the Notes, (iv) the
qualification of the Indenture under the Trust Indenture Act, (v) no
violations of law, (vi) compliance with applicable federal securities
laws, (vii) exemption of the Depositor, the Bank and the Issuer from
registration as an investment company under the Investment Company Act
of 1940, (viii) the conformity in all material respects of each of the
Basic Documents to the description thereof contained in the Registration
Statement and the Prospectus and (ix) negative assurances concerning the
Prospectus, in each case in form and substance reasonably satisfactory
to the Representative and its counsel.
(k) _____________, special Texas counsel to the Bank, shall have
furnished to the Representative their written opinion, addressed to the
Underwriters and dated the Closing Date, regarding the perfection and
priority of the security interests created by the Receivables Purchase
Agreement.
(l) _____________, counsel to the Depositor, shall have furnished
to the Representative their written opinion, addressed to the
Underwriters and dated the Closing Date, regarding the perfection and
priority of the security interests created by the Sale and Servicing
Agreement.
(m) Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative their written opinion, addressed to the Underwriters and
dated the Closing Date, with respect to certain matters relating to the
transfer of the Receivables to the Issuer, in form and substance
reasonably satisfactory to the Representative and its
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counsel.
(n) Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Representative their written opinion, addressed to the Underwriters and
dated the Closing Date, to the effect that (i) the Issuer will not be an
association (or a publicly traded partnership) taxable as a corporation
for federal income tax purposes, (ii) the Notes will be characterized as
indebtedness for federal income tax purposes and (iii) the statements
set forth in the Prospectus under the heading "Certain Federal Income
Tax Consequences", to the extent that they are statements of law are
true and correct in all material respects, in form and substance
reasonably satisfactory to the Representative and its counsel.
(o) The Representative shall have received from ___________,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Representative may
require, and the Representing Parties shall have furnished to such
counsel such documents as they reasonably request for enabling them to
pass upon such matters.
(p) ____________, counsel to the Owner Trustee, shall have
furnished to the Representative their written opinion, as counsel to the
Owner Trustee, addressed to the Underwriters and dated the Closing Date,
regarding the due organization of the Owner Trustee, the due
authorization, execution and delivery by the Owner Trustee of the Trust
Agreement, no conflicts or violations of organizational documents,
contracts or law and other related matters, in form and substance
reasonably satisfactory to the Representative and its counsel.
(q) ____________, counsel to the Indenture Trustee, shall have
furnished to the Representative their written opinion, as counsel to the
Indenture Trustee, addressed to the Underwriters and dated the Closing
Date, regarding the due organization of the Indenture Trustee, the due
authorization, execution and delivery by the Indenture Trustee of the
Basic Documents to which it is a party, no conflicts or violations of
organizational documents, contracts or law and other related matters, in
form and substance reasonably satisfactory to the Representative and its
counsel.
(r) The Representative shall have received a letter dated the date
hereof (the "Procedures Letter") from a firm of independent nationally
recognized certified public accountants acceptable to the Representative
verifying the accuracy of such financial and statistical data contained
in the Prospectus as the Representative shall deem advisable. In
addition, if any amendment or supplement to the Prospectus made after
the date hereof contains financial or statistical data, the
Representative shall have received a letter dated the Closing Date
confirming the Procedures Letter and providing additional comfort on
such new data.
(s) The Representative shall have received a certificate, dated
the Closing Date, of any of the Chairman of the Board, the President,
any Senior Vice President or the chief financial officer of the
Depositor stating that (A) the representations and warranties of the
Depositor contained in this Agreement and the Basic Documents to
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which it is a party are true and correct on and as of the Closing Date,
(B) the Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and under
such agreements at or prior to the Closing Date, (C) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best of his or her knowledge, are contemplated by the Commission,
and (D) since ______, ____, there has been no material adverse change in
the financial position or results of operations of the Depositor or the
Issuer or any change, or any development including a prospective change,
in or affecting the condition (financial or otherwise), results of
operations, business or prospects of the Depositor or the Issuer except
as set forth in or contemplated by the Registration Statement and the
Prospectus.
(t) The Representative shall have received a certificate, dated
the Closing Date, of any of the Chairman of the Board, the President,
any Senior Vice President or the chief financial officer of the Bank
stating that (A) the representations and warranties of the Bank
contained in this Agreement and the Basic Documents to which it is a
party are true and correct on and as of the Closing Date, (B) the Bank
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder and under such agreements at
or prior to the Closing Date, and (C) since ______, ____, there has been
no material adverse change in the financial position or results of
operations of the Bank or the Issuer or any change, or any development
including a prospective change, in or affecting the condition (financial
or otherwise), results of operations, business or prospects of the Bank
or the Issuer except as set forth in or contemplated by the Registration
Statement and the Prospectus.
(u) The Representative shall have received a letter from ____
stating that the Notes have received a rating of "___" from _____ and a
letter from ____ stating that the Notes have received a rating of "___"
from _____.
(v) The Representative shall have received a letter from ____
stating that the Certificates have received a rating of "___" from _____
and a letter from ____ stating that the Certificates have received a
rating of "___" from ____.
(w) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction or
(ii) a general moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (iii) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or any other substantial national
or international calamity or emergency, as to make it, in the reasonable
judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus.
11
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by notice given
to and received by the Depositor and the Bank prior to delivery of and payment
for the Securities if, prior to that time, any of the events described in
Section 5(w) shall have occurred or any of the conditions described in
Sections 5(s) 5(t), 5(u) or 5(v) shall not be satisfied.
7. DEFAULTING UNDERWRITERS.
(a) If, any one or more of the Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such
Underwriter hereunder on the Closing Date, and such failure constitutes
a default in the performance of its or their obligations under this
Agreement, the Representative may make arrangements for the purchase of
such Securities by other persons satisfactory to the Depositor and the
Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date in the respective proportions
which the principal amount of Securities set forth opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to
the aggregate principal amount of Securities set forth opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1
hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Securities on
the Closing Date if the aggregate principal amount of Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds one-eleventh of the aggregate principal amount of
the Securities to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total
more than 110% of the principal amount of the Securities which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. If
the foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representative and the Depositor
and the Bank do not elect to purchase the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Depositor or the Bank, except that the
Representing Parties will continue to be liable for the payment of
expenses to the extent set forth in Sections 8 and 12 and except that
the provisions of Sections 9 and 10 shall not terminate and shall remain
in effect. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 1 hereto who, pursuant to
this Section 7, purchases Securities which a defaulting Underwriter
agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its
default. If other underwriters are obligated or agree to purchase the
Securities of a defaulting Underwriter, the
12
Representative, the Depositor or the Bank may postpone the Closing Date
for up to seven full business days in order to effect any changes that
in the opinion of counsel for the Depositor, opinion of counsel for the
Bank or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or
arrangement, and the Representing Parties agree to file promptly any
amendment or supplement to the Registration Statement or the Prospectus
that effects any such changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) notice shall have
been given pursuant to Section 6 terminating the obligations of the
Underwriters hereunder, (b) the Depositor shall fail to tender the Securities
for delivery to the Underwriters for any reason permitted under this Agreement
or (c) the Underwriters shall decline to purchase the Securities for any
reason permitted under this Agreement, the Representing Parties shall
reimburse the Underwriters for the fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been reasonably incurred by
them in connection with this Agreement and the proposed purchase of the
Securities, and upon demand the Representing Parties shall pay the full amount
thereof to the Representative. If this Agreement is terminated pursuant to
Section 7 by reason of the default of one or more Underwriters, the
Representing Parties shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
9. INDEMNIFICATION.
(a) The Representing Parties, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
Securities Act (collectively referred to for the purposes of this
Section 9 and Section 10 as the Underwriter) against any loss, claim,
damage or liability, joint or several, to which that Underwriter may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage or liability (or any action in respect thereof)
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus supplement, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, and shall
reimburse each Underwriter for any legal or other expenses reasonably
incurred by that Underwriter directly in connection with investigating
or preparing to defend or defending against or appearing as a third
party witness in connection with any such loss, claim, damage or
liability (or any action in respect thereof) as such expenses are
incurred; provided, however, that the Representing Parties shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability (or any action in respect thereof) arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from (i) any preliminary prospectus
supplement, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with the
Underwriters' Information or (ii) any Statement of Eligibility and
Qualification (Form T-1) filed with the Registration Statement;
provided, further that such indemnity with respect to any preliminary
prospectus supplement or any amendment or supplement thereto shall not
inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the Securities which
13
are the subject thereof (or to the benefit of any person controlling
such Underwriter) if at or prior to the written confirmation of the sale
of such Securities a copy of the Prospectus (or the Prospectus as
amended or supplemented) was not sent or delivered to such person and
the untrue statement or omission of a material fact contained in such
preliminary prospectus supplement was corrected in the Prospectus (or
the Prospectus as amended or supplemented) unless the failure is the
result of noncompliance by the Depositor with Section 4(d).
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless each Representing Party, each of its directors, each
officer of the Depositor who signed the Registration Statement and each
person, if any, who controls a Representing Party within the meaning of
Section 15 of the Securities Act (collectively referred to solely for
the purposes of this Section 9 (b) as the "Representing Party
Indemnified Parties"), against any loss, claim, damage or liability,
joint or several, to which the Representing Party Indemnified Parties
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage or liability (or any action in respect thereof)
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus supplement, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with the written information furnished to the Representing
Parties by or on behalf of such Underwriter specifically for use
therein, and shall reimburse the Representing Party Indemnified Parties
for any legal or other expenses reasonably incurred by the Representing
Party Indemnified Parties in connection with investigating or preparing
to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage or liability (or any action
in respect thereof) as such expenses are incurred. The parties
acknowledge and agree that the written information furnished to the
Representing Parties through the Representative by or on behalf of the
Underwriters (the "Underwriters' Information") consists solely of the
________ paragraphs of text and the following table under the caption
"Underwriting" in the Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 9 except to the extent it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such
failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other
14
similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 9
for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs
of investigation; provided, however, an indemnified party shall have the
right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party
will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential
conflict exists (based upon advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (4) the indemnifying
party has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and
9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent, but if settled with its written
consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceedings.
The obligations of the Representing Parties and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability which the
Representing Parties or the Underwriters, as the case may be, may otherwise
have.
10. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or
15
liability (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Representing Parties on the one hand and the
Underwriters on the other from the offering of the 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) above but also the relative fault of the
Representing Parties on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, as well as any other relevant equitable considerations.
The relative benefits received by the Representing Parties on the one hand and
the Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by the Representing Parties bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus Supplement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Representing
Parties on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The Representing Parties and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10 were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability referred to above in this Section 10 shall be deemed to
include, subject to the limitations on the fees and expenses of separate
counsel set forth in Section 9, for purposes of this Section 10, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim or any action in respect
thereof. Notwithstanding the provisions of this Section 10, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public less the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to indemnify as provided in Section 9 and contribute as provided in this
Section 10 are several in proportion to their respective underwriting
obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Underwriters and the Representing
Parties and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Representing Parties and
their respective successors and the controlling persons and officers and
directors referred to in Sections 9 and 10 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16
12. EXPENSES. The Representing Parties agree with the Underwriters to
pay (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities and any taxes payable in that connection; (b)
the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary prospectus
supplement, the Prospectus and any amendment or supplement to the Prospectus,
including, without limitation, the Prospectus Supplement, all as provided in
this Agreement; (d) the costs of printing, reproducing and distributing this
Agreement and any other underwriting and selling group documents by mail,
telex or other means of communications; (e) the fees and expenses of
qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of
counsel to the Underwriters); (f) any fees charged by _____ and _____ for
rating the Securities; (g) all fees and expenses of the Owner Trustee and the
Indenture Trustee and their respective counsel; and (h) all other costs and
expenses incident to the performance of the obligations of the Representing
Parties under this Agreement; provided that, except as otherwise provided in
this Section 12 and in Section 8, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Securities which they may sell and the expenses of advertising
any offering of the Securities made by the Underwriters.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Representing Parties and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Securities and shall remain in full force and effect,
regardless of any (i) termination or cancellation of this Agreement, (ii) any
investigation made by or on behalf of any of them or any person controlling
any of them or (iii) acceptance of and payment for the Securities.
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
facsimile transmission and confirmed to c/o the Representative at
_____________________, Attention: ___________, with a copy to the Legal
Department; and
(b) if to the Depositor, shall be delivered or sent by mail or
facsimile transmission and confirmed to the address of the Depositor set
forth in the Registration Statement, Attention: [ ];
(c) if to the Bank, shall be delivered or sent by mail or
facsimile transmission and confirmed to the address of the Bank set
forth in the Registration Statement, Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 9(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto
17
by the Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Representing
Parties shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representative.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
18
If the foregoing is in accordance with your understanding of the
agreement between the Depositor, the Bank and the several Underwriters, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
USAA FEDERAL SAVINGS BANK
By
---------------------------------------
Name:
Title:
USAA ACCEPTANCE, LLC
By
---------------------------------------
Name:
Title:
Accepted:
[Name of Representative]
For Itself and as Representative
of the Several Underwriters
By
---------------------------------
Authorized Signatory
19
SCHEDULE 1
Principal Principal Principal Principal
Xxxxxx of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class B
Underwriters Notes Notes Notes Certificates
------------ ----- ----- ----- ------------
[Name of Representative] $ $ $ $
------------------
20
