Exhibit 1.2
$
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TRUST 200 -
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Auto Receivable Asset-Backed Certificates, Class A
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Auto Receivable Asset Back Certificates, Class B
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POOLED AUTO SECURITIES SHELF LLC
Depositor
FORM OF UNDERWRITING AGREEMENT
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______ __, 200_
First Union Securities, Inc.
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Dear Sirs:
Pooled Auto Securities Shelf LLC, a Delaware limited liability company
(the "Depositor"), proposes, from time to time, to form one or more special
purpose entities (each, a "Trust") which will issue up to $___________ aggregate
principal amount of securities entitled "_____ Auto Receivable Asset Backed
Certificates, Class A" (the "Class A Certificates") and "_____ Auto Receivable
Asset Backed Certificates, Class B" (the "Class B Certificates" and, together
with the Class A Certificates, the "Certificates") under the terms and
conditions contained herein. The Certificates will represent fractional
undivided interests in the Trust.
The property of each Trust may consist primarily of, among other
things, (i) a pool of fixed rate simple interest motor vehicle installment loans
(the "Loans") for the purchase of new and used automobiles, minivans, sport
utility vehicles, light-duty trucks, motorcycles or commercial vehicles financed
thereby (the "Financed Vehicles"), (ii) certain monies due under the Loans,
(iii) security interests in the Financed Vehicles, (iv) amounts on deposit in
certain accounts, (v) certain rights under the Receivables Purchase Agreement,
dated as of _______, 200_ (the "Receivables Purchase Agreement"), between a
third party seller (the "Sponsor"), as seller, and the Depositor, as purchaser
(v) all proceeds of the foregoing. The Loans and other Trust property will be
sold to the Trust by the Depositor. The Certificates will be issued pursuant to
a Pooling and Servicing Agreement, dated as of ______, 200_ (the "Pooling and
Servicing Agreement") among the Depositor, the Sponsor, as servicer (in such
capacity, the "Servicer") and __________, as trustee (the "Trustee").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
The offering of Certificates will be made through First Union
Securites, Inc. ("First Union") and other underwriters (collectively, the
"Underwriters") for whom First Union is acting as representative (the
"Representative").
The Trust Agreement, Pooling and Servicing Agreement, the Receivables
Purchase Agreement and the spread account agreement, if any, (the "Spread
Account Agreement"), among the Trust and the Trustee are referred to herein
collectively as the "Basic Documents."
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-36692) covering
the registration of the Certificates under the Securities Act of 1933, as
amended (the "Securities Act"), which Registration Statement, as amended at the
date hereof, has become effective and the offering thereof from time to time in
accordance with Rule 415 under rules and regulations of the Commission under the
Securities Act (the "Securities Act Regulations"). Such registration statement,
as amended, and the prospectus and the related prospectus supplement that the
Depositor has filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations relating to the sale of the Certificates offered
thereby constituting a part thereof, as from time to time amended or
supplemented, including all documents incorporated therein by reference, are
respectively referred to as the "Registration Statement" and the "Prospectus";
provided, however, that a supplement to the Prospectus prepared pursuant to
Section 3(a) shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Certificates to which it relates. Any information
included in the prospectus that is omitted from such registration statement at
the time it becomes effective but that is deemed to be part of such registration
statement at the time it becomes effective pursuant to paragraph (a) of Rule
430A of the Securities Act Regulations is referred to as the "Rule 430A
Information". Any preliminary prospectus used in connection with the
Certificates prior to the execution and delivery of the Terms Agreement, is
herein called a "preliminary prospectus". For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE DEPOSITOR. The Depositor
represents and warrants to the Underwriters as of the date hereof and as of the
Closing Time, and agrees with the Underwriters, as follows:
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(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Depositor meets the
requirements for use of Form S-3 under the Securities Act. The Registration
Statement, including a prospectus and such amendments thereto as may have
been required to the date hereof, relating to the Certificates and the
offering of each Series thereof from time to time in accordance with Rule
415 under the Securities Act, has been filed with the Commission. The
Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Depositor,
are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act").
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at Closing Time, the
Registration Statement and any amendments thereto complied and will comply in
all material respects with the requirements of the Securities Act and the
Securities Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. At the date of the Prospectus and at the Closing Time, neither
the Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. Notwithstanding
the foregoing, the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information furnished to
the Sponsor in writing by any Underwriter through the Representative expressly
for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of Certificates will, at the time of such
delivery, be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder (the
"Exchange Act Regulations") and, when read together
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with the other information in the Prospectus, at the time the Registration
Statement became effective, at the date of the Prospectus and at the Closing
Time, did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, no representation or warranty is made as to
documents deemed to be incorporated by reference in the Registration
Statement as the result of filing any Additional Materials 8-K (as defined
in Section 3(l)) at the request of the Underwriters except to the extent
such documents accurately reflect or are accurately based upon information
furnished by or on behalf of the Depositor to the Underwriters for the
purpose of preparing such documents.
(iii) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
except as otherwise set forth therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Depositor, whether or not
arising in the ordinary course of business (a "Material Adverse Change"),
(B) there have been no transactions entered into by the Depositor, other
than those in the ordinary course of business, which are material with
respect to such entity and (C) there has been no material adverse change in
the Financial Statements.
(iv) DUE ORGANIZATION OF THE DEPOSITOR. The Depositor has been duly
formed and is validly existing as a limited liability company under the laws
of the State of Delaware, and all filings required at the date hereof under
the Delaware Limited Liability Company Act (6 Del. C.Section 18-101, et
seq.) (the "LLC Act") with respect to the due formation and valid existence
of the Depositor as a limited liability company have been made; the
Depositor has all requisite power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and to perform its
obligations under this Agreement, each Basic Document to which it is a party
and the Securities; and the Depositor is duly qualified as a foreign limited
liability company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not result
in a Material Adverse Change or have a material adverse effect on its
ability to perform its obligations under the Basic Documents to which it is
a party.
(v) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Depositor.
(vi) AUTHORIZATION OF BASIC DOCUMENTS. As of the Closing Time, each of
the Basic Documents to which the Depositor is a party has been, or will have
been, duly authorized, executed and delivered by such entity, and, assuming
the due authorization, execution and delivery thereof by the other parties
thereto, will constitute a valid and binding agreement of the Depositor,
enforceable against such entity in accordance with
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its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(vii) ISSUANCE OF THE CERTIFICATES. The Certificates have been duly and
validly authorized and, when executed, authenticated and delivered in
accordance with the Trust Agreement, will be validly issued and outstanding
and entitled to the benefits of the Trust Agreement.
(viii) DESCRIPTION OF THE CERTIFICATES AND BASIC DOCUMENTS. The
Certificates and each of the Basic Documents conform in all material
respects to the descriptions thereof and the statements relating thereto
contained in the Registration Statement and the Prospectus.
(ix) ABSENCE OF DEFAULTS AND CONFLICTS. The Depositor is not in
violation of its organizational or charter documents or bylaws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound, or to which any of its
properties or assets is subject (collectively, "Agreements and
Instruments"), except for defaults that would not result in a Material
Adverse Change and would not have a material adverse effect on its ability
to perform its obligations under the Basic Documents to which it is a party;
and the execution, delivery and performance by the Depositor of this
Agreement, each Basic Document to which it is a party, the consummation of
the transactions contemplated herein and therein, in the Registration
Statement or in the Prospectus and compliance with its obligations hereunder
and thereunder have been duly and validly authorized by all necessary
corporate or limited liability company action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens") upon any of its property or assets pursuant
to the Agreements and Instruments except for Liens permitted by the Basic
Documents and conflicts, breaches or defaults that, individually or in the
aggregate, will not result in a Material Adverse Change and would not have a
material adverse effect on its ability to perform its obligations under the
Basic Documents to which it is a party, nor will such action result in any
violation of the provisions of its charter or organizational documents or
bylaws or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Depositor or any of its
assets, properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Depositor.
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(x) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending or, to the knowledge of the
Depositor, threatened, against or affecting the Depositor which is required
to be disclosed in the Registration Statement and the Prospectus (other than
as stated therein), or which might reasonably to expected to result in a
Material Adverse Change, or which might reasonably be expected to materially
and adversely affect its properties or assets or the consummation of the
transactions contemplated by this Agreement or any Basic Document to which
it is a party or the performance of its obligations hereunder and
thereunder; the aggregate of all pending legal or governmental proceedings
to which the Depositor is a party or of which any of their respective
properties or assets is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Change.
(xi) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court, governmental authority or agency or
any other person is necessary in connection with (A) the issuance or the
offering and sale of the Certificates, (B) the execution, delivery and
performance by the Depositor of this Agreement or any Basic Document to
which it is a party or (C) the consummation by the Depositor of the
transactions contemplated hereby or thereby, except such as have been
obtained and are in full force and effect as of the Closing Time.
(xiii) POSSESSION OF LICENSES AND PERMITS. The Depositor possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them; the Depositor is in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Change; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Change or would render a material portion of the
Loans unenforceable; and the Depositor has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Change, would have a material adverse effect on its ability to
perform its obligations under each Basic Document to which it is a party or
would render a material portion of the Loans unenforceable.
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(xiv) TITLE TO LOANS; PAYMENT OF FEES. As of the Closing Time, the
Trust will have good and marketable title to, and will be the sole owner of
each Loan free and clear of Liens other than the Lien in the Pooling and
Servicing Agreement; all taxes, fees and other governmental charges arising
in connection with the transactions contemplated by this Agreement and the
Basic Documents and with the execution and delivery of the Loans, including
any amendments thereto and assignments and/or endorsements thereof, have
been paid by the Depositor or the Sponsor.
(xv) INVESTMENT COMPANY ACT. The Depositor is not required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(xvi) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Depositor in each Basic Document to
which it is a party are true and correct in all material respects and are
hereby restated for the benefit of the Underwriters and incorporated by
reference herein with the same effect as if set forth in full herein.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Depositor or any of its respective Affiliates (as defined below) and
delivered at the Closing Time to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Depositor or
such Affiliate, as the case may be, to the Underwriters as to the matters
covered thereby. When used in this Agreement, the term "Affiliate" or
"Affiliates" shall have the meaning assigned by Rule 501(b) under the Securities
Act Regulations.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) PURCHASE OF THE CERTIFICATES. The several commitments of the
Underwriters to purchase the Certificates shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for the Certificates shall be made at the offices of
___________________, or at such other place as shall be agreed upon by the
Representative and the Depositor, at 10:00 A.M. (New York time) on ________,
200_ (the "Closing Date"), or such other time not later than five business days
after such date as shall be agreed upon by the Representative and the Depositor
(such date and time of payment and delivery being called the "Closing Time).
The Certificates will initially be represented by one or more
certificates registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and participating
members thereof. The Certificates shall be made available for examination by the
Representative in The City of New York not later than 10:00 A.M. (New York time)
on the business day prior to the Closing Time.
Delivery of the Certificates shall be made against payment of the
purchase price by wire transfer of immediately available funds to a bank account
designated by the Depositor.
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Section 3. COVENANTS OF THE DEPOSITOR. The Depositor covenants with
each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Depositor, subject to Section 3(b), will comply with the requirements of Rule
430A of the Securities Act Regulations, if and as applicable, and will notify
the Representative immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Certificates for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Depositor will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus.
(b) FILING OF AMENDMENTS. The Depositor will give the Representative
notice of its intention to file or prepare (i) any amendment to the Registration
Statement, (ii) any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the Securities Act, the Exchange Act or
otherwise or (iii) any Computational Materials, ABS Term Sheets or Collateral
Term Sheets (each as defined in Section 6), will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Depositor has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) DELIVERY OF PROSPECTUSES. The Depositor will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Depositor hereby consents to
the use of such copies for
8
purposes permitted by the Securities Act. The Depositor will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Depositor will
comply with the Securities Act and the Securities Act Regulations, the Exchange
Act and the Exchange Act Regulations and the 1939 Act and the 1939 Act
Regulations so as to permit the completion of the distribution of the
Certificates as contemplated in this Agreement and the Basic Documents and in
the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the Securities Act or the Exchange Act to be delivered
in connection with sales of the Certificates, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Depositor, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the Securities Act or the Securities Act
Regulations, the Depositor will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Depositor will furnish to the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Depositor will use its best efforts,
in cooperation with the Underwriters, to qualify the Certificates for offering
and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the date of
this Agreement; provided, however, that the Depositor shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Certificates have been so qualified, the Depositor will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the date of this Agreement. The Depositor will also supply the Underwriters
with such information as is necessary for the determination of the legality
9
of the offering and sale of the Certificates for investment under the laws of
such jurisdictions as the Underwriters may reasonably request.
(g) EARNINGS STATEMENT. The Depositor will timely file such reports
pursuant to the Exchange Act as are necessary in order to make generally
available to its security-holders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
(h) USE OF PROCEEDS. The Depositor shall cause the Trust to use the net
proceeds received by it from the sale of the Certificates in the manner
specified in the Prospectus under "Use of Proceeds."
(i) REPORTS, STATEMENTS AND CERTIFICATES. So long as any Certificates
are outstanding, the Depositor shall deliver or cause to be delivered to the
Underwriters associated therewith, as soon as copies become available, copies of
(i) the monthly servicing report, (ii) the annual statements of compliance,
annual independent certified public accountants' reports and annual opinions of
counsel furnished to the pursuant to the Pooling and Servicing Agreement, as
soon as such statements, reports and opinions are furnished to the Trustee and
(iii) such other information concerning the Depositor, the Trust or the
Certificates as the Underwriters may reasonably request from time to time.
(j) REPORTING REQUIREMENTS. The Depositor, during the period when the
Prospectus is required to be delivered under the Securities Act or the Exchange
Act, will file all documents required to be filed with the Commission pursuant
to the Exchange Act within the time periods required by the Exchange Act and the
Exchange Act Regulations.
(k) COMPUTATIONAL MATERIALS. The Depositor will file with the
Commission a current report on Form 8-K (an "Additional Materials 8-K") setting
forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets
provided to the Depositor by any Underwriter within the applicable time periods
allotted for such filing pursuant to the No-Action Letters (as defined in
Section 6).
(l) CORRECTED ITEMS. In the event that an Underwriter must prepare
corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets
pursuant to Section 6(d), the Depositor shall file any corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets no later than two Business
Days following receipt thereof.
Section 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Depositor shall pay all of its own expenses incident
to the performance of its obligations under this Agreement, including without
limitation (i) the preparation, printing and filing of the Registration
Statement, the preliminary prospectus, the Prospectus and each amendment or
supplement thereto, (ii) the preparation, reproduction and delivery to the
Underwriters of this Agreement, any agreement among the Underwriters, each Basic
Document and such other documents as may be required in connection with the
issuance,
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offering, purchase, sale or delivery of the Certificates, (iii) the preparation,
issuance and delivery of the certificates for the Certificates to the
Underwriters, (iv) the fees and expenses of the counsel, accountants and other
advisors of the Depositor and any of its Affiliates in connection with the
transactions contemplated by this Agreement, (v) the qualification of the
Certificates under state securities laws in accordance with the provisions of
Section 3(f), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, the
Prospectus and any amendments on supplements thereto, (vii) the fees and
expenses of the Trustee, including the reasonable fees and disbursements of
their respective counsel in connection with the transactions contemplated by
this Agreement, and (viii) any fees payable to Xxxxx'x Investors Service, Inc.
("Xxxxx'x"), Fitch, The International Rating Agency ("Fitch") and Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's, and
together with Moody's and Fitch, the "Rating Agencies") in connection with the
rating of the Certificates.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 10(a),
the Depositor shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters are subject to the accuracy of the
representations and warranties of the Depositor contained in Section 1 or in
certificates of any officer of the Depositor or any of its Affiliates delivered
pursuant to the provisions hereof, to the performance by the Depositor of its
covenants and other obligations hereunder and to the following additional
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
has become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act and no proceedings for that purpose shall have been instituted or
be pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters. A prospectus containing
information relating to the description of the Certificates, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A).
(b) ACCOUNTANTS' COMFORT LETTER. At the Closing Time, the Underwriters,
the Depositor shall have received from __________ (i) a letter or letters dated
as of the Closing Time, in form and substance as previously agreed to by the
Underwriters and otherwise satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to the financial statements of the Depositor, including the related
schedules and notes (collectively, the "Financial Statements") and
11
certain financial, statistical and other information contained in the Prospectus
and (ii) a letter dated the date of the Computational Materials, ABS Term Sheets
or Collateral Term Sheets, in form and substance as previously agreed to by the
Representative and otherwise satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Representative, as a result of which they have determined that
the information included in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets (if any), provided by the Underwriters to the Depositor
for filing on an Additional Materials 8-K, is accurate.
(c) OFFICERS' CERTIFICATE. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Change with respect
to the Depositor, whether or not arising in the ordinary course of business, and
the Underwriters shall have received certificates of authorized officers of the
Depositor, dated as of the Closing Time, to the effect that (i) there has been
no such Material Adverse Change, (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as though
expressly made at and as of such Closing Time and (iii) the Depositor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time.
(d) OPINION OF COUNSEL FOR THE DEPOSITOR. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of the ________, counsel for the Depositor, in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) The Depositor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement and each of the Basic
Documents to which it is a party, and is duly qualified and in good standing
as a foreign limited liability company in each jurisdiction in which the
location of its properties or the character of its operations makes such
qualification necessary, except such jurisdictions, if any, in which the
failure to be so qualified and in good standing would not result in a
Material Adverse Change or a material adverse effect on its ability to
perform its obligations under the Basic Documents to which it is a party.
(ii) The Depositor is duly qualified to transact business in Delaware
and North Carolina.
(iii) This Agreement has been duly authorized, executed and delivered
by the Depositor.
(iv) The Depositor has duly authorized, executed and delivered each
Basic Document to which it is a party, and assuming due authorization,
execution and
12
delivery by the other parties thereto, each such Basic Document constitutes
a valid and binding agreement, enforceable against the Depositor, in
accordance with its terms, except as the enforcement thereof may be subject
to or limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and except as enforcement thereof is subject to general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(v) The Depositor has duly authorized the direction to the Trustee to
execute the Certificates and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the Pooling
and Servicing 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 Pooling and Servicing Agreement.
(vi) The Depositor has duly authorized the direction to the Trustee to
authenticate the Certificates and, when the Certificates have been duly
executed and delivered by the Trustee, authenticated by the Trustee in
accordance with the Pooling and Servicing Agreement, and delivered and paid
for pursuant to this Agreement, the Certificates 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 Pooling and Servicing
Agreement;
(vii) The Certificates and the Basic Documents conform in all material
respects to the descriptions thereof and the statements relating thereto
contained in the Registration Statement and the Prospectus.
(viii) Depositor is not an "investment company" nor is it controlled by
an "investment company", as such terms are defined in the 1940 Act.
(ix) To such counsel's knowledge, the Depositor possesses such
Governmental Licenses necessary to conduct the business now operated by it,
and is in all material respects complying therewith, and it has not received
any notice of proceedings relating to the revocation or modification of any
such Governmental License that, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Change, would have a material adverse effect on the ability to
perform its obligations under the Basic Documents to which it is a party or
would render any of the Loans unenforceable.
(x) The Depositor is not in violation of its organizational or charter
documents or by-laws and, to the best of such counsel's knowledge, no
default by the Depositor exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in its Agreements and
Instruments,
13
except for defaults that would not result in a Material Adverse Change or
would not have a material adverse effect on its ability to perform its
obligations under the Basic Documents to which it is a party.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency or any other person (other than those which have already
been made, obtained or rendered under the Securities Act, the Securities Act
Regulations, the 1939 Act, the 1939 Act Regulations or as may be required
under the securities or blue sky laws of the various states) is necessary or
required by the Depositor in connection with the authorization, execution,
delivery and performance of this Agreement or the Basic Documents to which
it is a party or for the issuance, offering, sale or delivery of the
Certificates.
(xii) The execution, delivery and performance by the Depositor of this
Agreement, the Basic Documents to which it is a party and the Certificates
and the consummation of the transactions contemplated in this Agreement, the
Basic Documents, the Registration Statement and in the Prospectus and
compliance with its obligations hereunder or thereunder do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event under
or result in the creation or imposition of any Lien upon any property or
assets of the Depositor pursuant to any Agreement or Instrument to which the
Depositor (except for Liens permitted by the Basic Documents) is a party or
by which it may be bound, or to which any of the property or assets of the
Depositor is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Change
or would not have a material adverse effect on its ability to perform its
obligations under the Basic Documents to which it is a party), nor will such
action result in any violation of the provisions of the charter or by-laws
of the Depositor, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to such counsel, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Depositor or properties, assets or operations.
(xiii) To such counsel's knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Depositor is a party or to which any of their respective properties or
assets is subject, before or brought by any court or governmental agency or
body, (i) asserting the invalidity of this Agreement, any Basic Document or
any Certificates, (ii) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement or any Basic Document or (iii) that would, if determined adversely
to the Depositor, result in a Material Adverse Change or would materially
and adversely affect the performance by the Depositor of its respective
obligations under any Basic Document to which it is a party or the
Certificates.
14
(xiv) The statements in the Prospectus under the captions "Summary of
the Terms of the Securities", "Risk Factors", "Description of the
Certificates", "Description of the Receivables Transfer and Servicing
Agreements", "Some Important Legal Issues Relating to the Receivables" and
"ERISA Considerations", to the extent that they constitute matters of law,
summaries of legal matters, documents or proceedings or legal conclusions
relating to U.S. federal law or the laws of the States of Delaware or New
York have been reviewed by such counsel and provide a fair summary in all
material respects.
(xv) To the best of such counsel's knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xvi) The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by
Rule 424(b). To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have been
initiated or are pending or threatened by the Commission.
(xvii) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such counsel
expresses no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Securities Act Regulations.
(xviii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules therein or
omitted therefrom, as to which no opinion need be expressed), when they were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act and the
Exchange Act , as applicable, and the rules and regulations of the
Commission thereunder.
(xix) Nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement or any amendment thereto,
including the Rule 430A Information (other than the financial statements and
schedules and other financial data included therein, as to which no opinion
need be expressed), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (other
15
than the financial statements and schedules and other financial data
included therein, as to which no opinion need be expressed), at the time the
Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xx) All descriptions in the Registration Statement of the Basic
Documents or other contracts or documents filed as exhibits to the
Registration Statement to which the Depositor or any of its Affiliates is a
party are accurate in all material respects; to the best of such counsel's
knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xxi) Assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, no qualification of the
Pooling and Servicing Agreement under the Trust Indenture Act is necessary.
(e) OPINION OF COUNSEL FOR THE SPONSOR. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of the ________, counsel for the Sponsor, in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) The Sponsor is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
wherein it owns or leases material properties or conducts material business
and which requires such qualification.
(ii) The Sponsor has no subsidiaries in any form, whether wholly owned
or other than wholly owned, direct or indirect, other than
[__________________].
(iii) The Sponsor is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus and this
Agreement become, an "investment company" or a company "controlled by" an
"investment company", as such terms are defined in the 1940 Act.
(iv) The Sponsor 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 the Sponsor is in all material respects
complying therewith; and the Sponsor is otherwise in compliance with all
laws, rules, regulations and statutes of
16
any jurisdiction to which it is subject, except where non-compliance would
not have a material adverse effect on the Sponsor.
(v) None of the execution and delivery of the Sale and Servicing
Agreement or the Receivables Purchase Agreement, the consummation of any of
the transactions therein contemplated or the fulfillment of the terms
thereof will conflict with, result in a breach or violation of, or
constitute a default under, any law or the charter or bylaws of the Sponsor
or the terms of any indenture or other agreement or instrument known to such
counsel and to which the Sponsor is a party or by which it is bound or any
judgment, order or decree known to such counsel to be applicable to the
Sponsor of any court, regulatory body, administrative agency, governmental
body, or arbitrator having jurisdiction over the Sponsor.
(vi) 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 any
financial, numerical and statistical information contained therein or
omitted therefrom, 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 any financial, numerical
and 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.
(vii) The Sponsor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of [Sponsor],
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
(viii) The Pooling and Servicing Agreement and the Receivables Purchase
Agreement have been duly authorized, executed and delivered by the Sponsor
and constitute legal, valid and binding obligations of the Sponsor,
enforceable against the Sponsor in accordance with its terms (subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws affecting creditors' rights generally
from time to time in effect).
(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 herein or in any Basic Document to which the
Sponsor is a party, except such as may be required under the blue sky or
securities laws of
17
any jurisdiction in connection with the purchase and sale of the Securities
by the Underwriters, the filing of the UCC-3 partial release statements
relating to the release of the existing liens of the Sponsor's secured
lenders on the Loans and the other Trust property, the filing of the UCC-1
financing statements relating to the conveyance of the Loans and the other
Trust property by the Sponsor to the Depositor pursuant to the Receivables
Purchase Agreement and of the Loans and the other Trust property by the
Depositor to the Trust and of the Loans and the other Trust property by the
Trust to the Trustee for the benefit of the Certificateholders pursuant to
the Pooling and Servicing Agreement, 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) None of the execution and delivery of this Agreement, the Pooling
and Servicing Agreement or the Receivables Purchase Agreement, the
consummation of any 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 Sponsor.
(xi) The provisions of the Receivables Purchase Agreement are effective
to transfer to the Depositor all right, title and interest of the Sponsor in
and to the Loans, and upon filing of the UCC-3 partial release statements
with respect to the interests of the Sponsor's secured lenders in the Loans,
the Loans and, to the knowledge of such counsel, the other Trust property
will be owned by the Depositor free and clear of any Lien except for the
Lien of the Pooling and Servicing Agreement.
(xii) The provisions of the Pooling and Servicing Agreement are
effective to transfer to the Trust all right, title and interest of the
Depositor in and to the Trust property, and upon filing of the UCC-3 partial
release statements with respect to the interests of the Sponsor's secured
lenders in the Trust property, the Loans and, to the knowledge of such
counsel, the other Trust property will be owned by the Trust free and clear
of any Lien except for the Lien of the Pooling and Servicing Agreement.
(xiii) The provisions of the Pooling and Servicing Agreement are
effective to create, in favor of the Trustee for the benefit of the
Certificateholders as security for the Trust's obligations under the
Certificates, a valid security interest in the Loans and that portion of the
other Trust property that is subject to Article 9 of the [________] Uniform
Commercial Code (the "UCC Collateral").
(xiv) The UCC-1 financing statements naming (A) the Sponsor as seller
and the Depositor as purchaser, (B) the Depositor as seller and the Trust as
purchaser and (C) the Trust as debtor and the Trustee, as secured party are
in appropriate form for filing with the Secretary of State of the State of
[Sponsor] and the County [Sponsor], the interest of the Trustee in the Loans
and the
18
proceeds thereof, and, to the extent that the filing of a financing
statement is effective to perfect an interest in the other Trust property
under Article 9 of the [Sponsor] Uniform Commercial Code, the other Trust
property, will be perfected upon the filing of such financing statements in
such filing offices; and upon the filing of the UCC-3 partial release
statements with respect to the interests of Sponsor's secured lenders in
such filing offices, no other interest of any other purchaser from or
creditor of the Sponsor or the Trust is of equal or prior to the interest of
the Trustee in the Loans and such other Trust property.
(f) OPINION OF SPECIAL DELAWARE COUNSEL FOR THE DEPOSITOR. At the
Closing Time, the Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of __________, special Delaware counsel for the
Depositor, in form and substance satisfactory to counsel for the Underwriters,
substantially to the effect that:
(i) The Depositor has been duly formed and is validly existing in good
standing as a limited liability company under the laws of the State of
Delaware.
(ii) Under the LLC Act and its related formation documents, the
Depositor has all necessary limited liability company power and authority to
execute and deliver, and to perform its obligations under, its formation
documents and the Basic Documents to which it is a party.
(iii) Under the LLC Act and its related formation documents, the
execution and delivery by the Depositor of its formation documents and the
Basic Documents to which it is a party, and the performance by it of its
obligations thereunder, have been duly authorized by all necessary limited
liability company action on the part of the Depositor.
(iv) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing is
required in the State of Delaware in order to make effective the lien of the
Pooling and Servicing Agreement. Insofar as the Delaware Uniform Commercial
Code, 6 Del. C. Section 9-101 et seq. (the "Delaware UCC"), applies (without
regard to conflict of laws principles) and, assuming that the security
interests in that portion of the trust estate that consists of general
intangibles, accounts or chattel paper, as defined under the Delaware UCC,
have been duly created and have attached, the Trustee has a perfected
security interest in such general intangibles, accounts or chattel paper
and, assuming that the Delaware UCC search accurately lists all the
financing statements filed naming the Trust as debtor and describing any
portion of the trust estate consisting of such general intangibles, accounts
or chattel paper, the security interest of the Trustee will be prior to the
security interest of all other creditors, and excluding purchase money
security interests under Section 9-312(4) of the Delaware UCC, and
temporarily perfected security interests pursuant to Section 9-306(3) of the
Delaware UCC (as to the priority of temporarily unrecorded security
interests in proceeds), subject to customary and usual exceptions.
19
(v) No creditor of the Depositor or any Certificateholder shall have
any right to obtain possession or, or otherwise legal or equitable remedies
with respect to, the property of the Trust.
(vi) Assuming that the Pooling and Servicing Agreement conveys good
title to the Trust Property referred to therein to the Trust as a true sale
and not as a security arrangement, the Trust rather than the Depositor is
the owner of the Trust Property.
(vii) The Trust Agreement is a legal, valid and binding agreement of
the parties thereto, enforceable against such parties, in accordance with
its terms.
(g) OPINION OF SPECIAL COUNSEL TO THE DEPOSITOR. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of __________, special __________ counsel to the Depositor, in
form and substance satisfactory to counsel for the Underwriters, substantially
to the effect that (i) the blank forms of Loans reviewed by such counsel comply,
or complied when in use, in all respects with all applicable disclosure
requirements under the Federal Consumer Protection Act, 15 U.S.C. Section 1601
et. seq., and Regulation Z issued pursuant thereto, as interpreted in the
Official Staff Commentary, and applicable disclosure laws and (ii) upon
consummation of the transactions contemplated by the Basic Documents, the Trust
had a perfected security interest in the Financial Vehicles financed under Loans
originated in _________.
(h) OPINION OF SPECIAL BANKRUPTCY COUNSEL TO THE DEPOSITOR. At the
Closing Time, the Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of ________________, special bankruptcy counsel to the
Depositor, in form and substance satisfactory to counsel for the Underwriters,
with respect to certain bankruptcy matters.
(i) OPINION OF SPECIAL TAX COUNSEL TO THE DEPOSITOR. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Time, of ___________, special tax counsel to the Depositor, in form
and substance satisfactory to counsel for the Underwriters, substantially to the
effect that for federal income tax purposes, the Trust will be treated as a
grantor trust and will not be treated as an association (or publicly traded
partnership) taxable as a corporation.
(j) OPINION OF COUNSEL FOR TRUSTEE. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of __________, counsel to the Trustee, in form and substance satisfactory
to counsel for the Underwriters, substantially to the effect that:
(i) The Trustee has been duly incorporated and is validly existing as a
banking corporation under the laws of the State of ___________.
20
(ii) The Trustee, at the time of its execution and delivery of the
Pooling and Servicing Agreement, had full power and authority to execute and
deliver the Pooling and Servicing Agreement and has full power and authority
to perform its obligations thereunder.
(iii) The Pooling and Servicing Agreement has been duly and validly
authorized, executed and delivered by the Trustee and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes
the valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or affecting
creditors' rights or by general principles of equity.
(iv) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting the
Trustee before or by any court, arbitrator, administrative agency or other
governmental authority which, if adversely decided, would materially and
adversely affect the ability of the Trustee to carry out the transactions
contemplated in the Pooling and Servicing Agreement.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
United States of America or any state thereof was or is required for the
execution, delivery or performance by the Trustee of the Pooling and
Servicing Agreement.
(vi) The Certificates have been duly authenticated and delivered by the
Trustee in accordance with the terms of the Pooling and Servicing Agreement.
(k) OPINION OF COUNSEL FOR THE UNDERWRITERS. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Xxxxx & Xxxx LLP, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters. In rendering such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel reasonably satisfactory to the Underwriters.
(l) RELIANCE LETTERS. Counsel to each of the Depositor and the Sponsor
shall provide reliance letters to the Underwriters relating to each legal
opinion relating to the transaction contemplated hereby or in the Terms
Agreement rendered to either Trustee or either Rating Agency.
(m) MAINTENANCE OF RATING. At the Closing Time, the Class __ A
Certificates shall be rated "____" by Xxxxx'x, "____" by Fitch and "____" by
Standard and Poor's and the Class B Certificates shall be rated "____" by
Xxxxx'x, "____" by Fitch and "____" by Standard and Poor's, and the Depositor
shall have delivered to the Underwriters a letter dated the Closing Time from
each Rating Agency, or other evidence
21
satisfactory to the Underwriters, confirming that the Certificates have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Certificates or any other securities
of the Depositor, the Sponsor or any of their respective Affiliates by any
"nationally recognized statistical rating agency", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no
such rating agency shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Certificates
or any other securities of the Depositor, the Sponsor or any of their respective
Affiliates.
(n) ADDITIONAL RATING AGENCY REQUIREMENTS. The Depositor will, to the
extent, if any, that the ratings provided with respect to the Certificates by a
Rating Agency are conditioned upon the furnishing or the taking of any other
actions by the Depositor or the Sponsor, furnish such documents and take all
such other actions.
(o) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the issuance
and sale of the Certificates as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Depositor
in connection with the foregoing shall be satisfactory in form and substance to
counsel for the Underwriters.
Section 6. INVESTOR INFORMATION. Each Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets in connection with an offering of the
Certificates, subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I and certain affiliates, as made applicable to other
issuers and underwriters by the Commission in response to the request of the
Public Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by any Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by any
Underwriter.
(c) Each Underwriter shall provide to the Depositor any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided to
investors no later than the Business Day preceding the date such Computational
Materials, ABS Term Sheets or
22
Collateral Term Sheets are required to be filed pursuant to the applicable
No-Action Letters. Each Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be filed.
(d) In the event that the Depositor or any Underwriter discovers an
error in the Computational Materials, ABS Term Sheets or Collateral Term Sheets,
the Underwriter that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets and deliver
it to the Depositor for filing pursuant to Section 3(l).
Section 7. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Depositor agrees to indemnify
and hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets distributed by any Underwriter;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d)) any such settlement is effected with the written consent of the
Depositor and the Sponsor; and
(iv) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever, based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under clause (i) or (ii) above;
23
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with (a) written information furnished to
the Depositor by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or (b) in the case of
Computational Materials, ABS Term Sheets or Collateral Term Sheets
distributed by any Underwriter, Derived Information (as defined below)
provided by any Underwriter expressly for use in the Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets and the untrue
statement or alleged untrue statement did not derive from an inaccuracy in
the Depositor-Provided Information (as defined below) used in the
preparation of such Computational Materials, ABS Term Sheets or Collateral
Term Sheets.
(b) INDEMNIFICATION OF THE DEPOSITOR. The Underwriters severally agree
to indemnify and hold harmless the Depositor and each person, if any, who
controls the Depositor within the meaning of Section 15 of the 1993 Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 7(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made (i) in the Prospectus (or any amendment
thereto), or any preliminary prospectus or the Registration Statement (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Depositor by such Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or (ii) in
the Computational Materials, ABS Term Sheets or Collateral Term Sheets
distributed by any Underwriter to the extent that such untrue statement or
alleged untrue statement of a material fact was made in reliance upon and in
conformity with Derived Information provided by such Underwriter expressly for
use in the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statement or alleged untrue statement did not derive from
an inaccuracy in the Depositor-Provided Information used in the preparation of
such Computational Materials, ABS Term Sheets or Collateral Term Sheets. The
Underwriters respective obligations to indemnify pursuant to this Section are
several in proportion to the principal amount of Certificates set forth opposite
their respective names in Schedule A and not joint.
For purposes of this Agreement, as to each Underwriter, "Derived
Information" means such portion, if any, of the information delivered to the
Depositor by such Underwriter pursuant to Section 6 for filing with the
Commission on an Additional Materials 8-K and:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and
(ii) does not constitute Depositor-Provided Information.
24
"Depositor-Provided Information" means any computer tape (or other
information) furnished to any Underwriter by or on behalf of the Depositor
concerning the assets of the Depositor and used in preparing Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a), counsel
to the indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 7(b), counsel to the indemnified
parties shall be selected by the Depositor or the Sponsor, as applicable. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section or Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 8. CONTRIBUTION. If the indemnification provided for in
Section 7 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
25
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the Underwriters on the other hand from the offering of the
Certificates pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Depositor on the one hand and the
Underwriters on the other hand in connection with the offering of the
Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Certificates pursuant to this Agreement (before deducting expenses) received by
the Depositor and the total underwriting discount and commission received by the
Underwriters, bear to the aggregate initial offering price of the Certificates.
The relative fault of the Depositor on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Depositor or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Depositor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever, based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting discount or commission allocable to the Certificates underwritten
by it and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as such
Underwriters, and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
26
Act shall have the same rights to contribution as the Depositor. The
Underwriters' respective obligations to contribute pursuant to this Section are
several in proportion to the principal amount of Certificates set forth opposite
their respective names in Schedule A and not joint. The obligations of the
Depositor are in addition to any other liability it may otherwise have.
Section 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Depositor and its Affiliates
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or any
controlling person, or by or on behalf of the Depositor and its Affiliates, and
shall survive delivery of the Certificates to the Underwriters.
Section 10. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriters may terminate this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Depositor, its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Certificates or to enforce contracts for the sale of the Certificates, (iii)
if trading in any securities of the Depositor or any of its Affiliates has been
suspended or materially limited by the Commission or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority or (iv) if a banking moratorium has been declared by either Federal,
North Carolina or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that Sections 1, 7,
8 and 9 shall survive such termination and remain in full force and effect.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Certificates
which it or they are obligated to purchase (the "Defaulted Securities"), then
the Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if,
27
however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Certificates to be purchased on such date, the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations in Schedule A bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Certificates to be purchased on such date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement either the Representative or the Depositor shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 000 Xxxxx Xxxxxxx
Xxxxxx, One First Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, attention
____________; notices to the Depositor shall be directed to _________,
attention ____________.
Section 13. PARTIES. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters, the Depositor and its respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Depositor and its respective successors and the controlling
persons, directors and officers referred to in Sections 7 and 8 and their heirs
and legal Underwriters any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Depositor and its respective
successors, and the controlling persons, directors and officers referred to in
Sections 7 and 8 and their heirs and legal Underwriters and for the benefit of
no other person, firm or corporation. No purchaser of Certificates from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS CONFLICTS OF LAW PROVISIONS, AND THE
28
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not effect the construction hereof.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Depositor in accordance with its terms.
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
FIRST UNION SECURITIES, INC.
By:
---------------------------------
Name:
Title:
30
SCHEDULE A
Principal Amount of Principal Amount Of
Name of Underwriter Class A Certificates Class B Certificates
------------------- -------------------- --------------------
First Union Securities, Inc... $ $
------------- ------------
----------------------........
Total................
$ $
------------- ------------
------------- ------------
SA-1
