EXHIBIT 1.1
XXXXXXX AUTO TRUST 199_-_
$_______ ___% CLASS A ASSET BACKED CERTIFICATES
$_______ ___% CLASS B ASSET BACKED CERTIFICATES
Xxxxxxx Auto Receivables Corp.
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
_______ __, 199_
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as Representative of the Several
Underwriters (the "Representative")
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Ladies and Gentlemen:
1. Introductory. Xxxxxxx Auto Receivables Corp. (the "Depositor")
has previously filed a registration statement with the Securities and Exchange
Commission relating to the issuance and sale from time to time of up to $____ of
asset backed notes and/or asset backed certificates. The Depositor proposes to
cause XXXXXXX AUTO TRUST 199_-_ (the "Trust") to issue and sell $___ principal
amount of its ___% Class A Asset Backed Certificates (the "Class A
Certificates") and $___ principal amount of its Class B ___% Asset Backed
Certificates (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates"). The assets of the Trust will include, among
other things, a pool of motor vehicle retail installment sale contracts and
other motor vehicle installment chattel paper (the "Receivables") secured by new
and used automobiles (including passenger cars, minivans, sport/utility vehicles
and light trucks) financed thereby (the "Financed Vehicles"), and certain monies
received thereunder on or after , ______ __, 199_-_ (the "Cutoff Date"), and the
other property and the proceeds thereof to be conveyed to the Trust pursuant to
the Pooling and Servicing Agreement to be dated as of , ______ __, 199_-_ (the
"Pooling and Servicing Agreement") among ________, a ______ (the "Trustee"), the
Depositor, Barnet Dealer Financial Services, Inc. ("BDFS"), as servicer (the
"Servicer") and as sponsor (the "Sponsor"). Pursuant to the Pooling and
Servicing Agreement, the Depositor will sell the Receivables to the Trust and
the Servicer will service the Receivables on behalf of the Trust. In addition,
pursuant to the Pooling and Servicing Agreement, the Servicer will agree to
perform certain administrative tasks on behalf of the Trust.
The Receivables were originated by certain wholly-owned direct and
indirect subsidiaries (each, an "Originator") of Xxxxxxx Bank, N.A. Each
Originator other than BDFS will sell the Receivables to BDFS pursuant to the
terms of the Loan Sale Agreement (the "Loan Sale Agreement") dated as of
_________ __, 199_-_ among the Originators and BDFS. BDFS will sell the
Receivable to the Depositor pursuant to the terms of the Loan Purchase Agreement
(the "Loan Purchase Agreement") dated as of ______ __, 199_-_ among the
Depositor and BDFS.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the preliminary prospectus or, if not defined therein, as
defined in the Pooling and Servicing Agreement. As used herein, the term "Basic
Documents" refers to the Pooling and Servicing Agreement, Loan Purchase
Agreement, Loan Sale Agreement and Certificate Depository Agreement.
2. Representations and Warranties of the Depositor and the Sponsor.
Each of the Depositor and the Sponsor jointly and severally represents and
warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-26675), including a
prospectus, relating to the Certificates has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the terms of
the Certificates as first filed with the Commission after the date of this
Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under
the Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus," a "preliminary prospectus" means any form of prospectus, including
any prospectus supplement, relating to the Certificates used prior to date of
this Agreement that is subject to completion.
(b) On the effective date of the registration statement relating to
the Certificates, such registration statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and on the date of this Agreement the Registration Statement and the preliminary
prospectus conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes or will include any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The preceding sentence does not apply to statements in or omissions
from such documents based upon (i) written information furnished to the
Depositor by the Representative specifically for use therein, it being
understood that the only such information consists of the Underwriters'
Information (as defined in Section 7(i) or (ii) the Derived Information (as
defined in Section 7 below) contained in the Current Report (as defined in
Section 5(a) below) or in any amendment thereof or supplement thereto,
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incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto). The Depositor acknowledges that
any information furnished by the Representative specifically for use in the
Registration Statement, any preliminary prospectus or the Prospectus is the
Underwriters' Information.
(c) The Depositor meets the requirements for use of Form S-3 under the
Act.
(d) The documents incorporated by reference in the Registration
Statement and 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Depositor, BDFS and each Originator is a corporation
duly organized, validly existing and in good standing under the laws of its
respective state of incorporation, is duly qualified to transact business as a
foreign corporation in each jurisdiction in which it is required to be so
qualified and has all necessary licenses, permits and consents to conduct its
business as presently conducted and as described in the Prospectus and to
perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by
the Depositor and BDFS and constitutes a valid and binding agreement of each of
the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance
with its terms, subject as to the enforcement of remedies (x) to applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally, (y) to general principles of equity
(regardless of and whether the enforcement of such remedies is considered in a
proceeding in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach
or violation of any credit or security agreement or other agreement or
instrument to which it is a party or by which it or its properties may be bound,
or in violation of any applicable law, statute, regulation or ordinance or any
governmental body having jurisdiction over it, which breach or violation would
have a material and adverse effect on its ability to perform its obligations
under this Agreement or any of the Basic Documents, in each case, to which it is
a party.
(h) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled to
receive from the Depositor, BDFS, any Originator or any affiliate thereof or the
Underwriters, any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(i) Neither BDFS nor the Depositor has entered into, nor will it enter
into, any contractual arrangement with respect to the distribution of the
Certificates except for this Underwriting Agreement
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(j) The Trust is not an "investment company" and is not required to be
registered as an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and
warranties of BDFS, the Depositor and each of the Originators, in each of its
capacities under each of the Basic Documents, to which it is a party will be
true and correct in all material respects and each such representation and
warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement
relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been
duly authorized, executed and delivered by each of the parties thereto.
(n) Each Originator's assignment and sale of the Receivables it will
sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest
in the BDFS all of such Originator's right, title and interest to such
Receivables
(o) The BDFS's assignment and sale of the Receivables to the Depositor
on the Closing Date will vest in the Depositor all of BDFS's right, title and
interest therein.
(p) The Depositor's assignment and sale of the Receivables to the
Trust on the Closing Date will vest in the Trust all the Depositor's right,
title and interest therein, or will result in a first priority perfected
security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement, and delivered to and paid for pursuant hereto will be validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
(r) Neither the execution, delivery or performance of any of the Basic
Documents by the Depositor, BDFS or any of the Originators, nor the issuance,
sale and delivery of the Certificates, nor the fulfillment of the terms of the
Certificates, will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
organizational documents of the Depositor, BDFS or any of the Originators, any
material indenture or other material agreement or instrument to which the
Depositor, BDFS or any of the Originators is a party or by which any of them or
their properties is bound or result in a violation of or contravene the terms of
any statute, order or regulation applicable to the Depositor, BDFS or any of the
Originators of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Depositor, BDFS or any of the
Originators, or will result in the creation of any lien upon any material
property or assets of the Depositor, BDFS or any of the Originators (other than
pursuant to the Basic Documents).
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(s) There are no legal or governmental proceedings pending to which
the Depositor, BDFS or any Originator is a party or of which any of its
properties is the subject, which if determined adversely to the Depositor, BDFS
or any Originator would individually or in the aggregate have a material adverse
effect on the financial position, shareholders' equity or results of operations
of any of them; and to the best of the Depositor's or BDFS's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others.
(t) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance or sale of the Certificates or the consummation of the other
transactions contemplated by this Agreement or the Basic Documents, except such
as have been duly made or obtained.
(u) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development which could reasonably be expected to result
in a material adverse change, in or affecting the financial position,
shareholders' equity or results of operations of the Depositor, BDFS or any
Originator or the Depositor's, BDFS's or any Originator's ability to perform its
obligations under this Agreement or any of the Basic Documents to which it is a
party.
(v) Any taxes, fees and other governmental charges due on or prior to
the Closing Date (including, without limitation, sales taxes) in connection with
the execution, delivery and issuance of this Agreement, the Basic Documents and
the Certificates have been or will have been paid at or prior to the Closing
Date.
(w) The Receivables are chattel paper as defined in the Uniform
Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator
will report its transfer of the Receivables transferred by it to BDFS pursuant
to the Loan Sale Agreement as a Sale of the Receivables, BDFS will report its
transfer of the Receivables transferred by it to the Depositor pursuant to the
Loan Purchase Agreement as a sale of the Receivables, and the Depositor will
report its transfer of the Receivables to the Trustee pursuant to the Pooling
and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the
Originators and the Depositor has been advised by ___________ that the transfer
will be so classified under generally accepted accounting principles in
accordance with Statement No. 77 of the Financial Accounting Standards Board.
Each of BDFS, each of the Originators and the Depositor will also report such
transfer in all financial statements and reports prepared by it in accordance
with applicable regulatory accounting principles.
(y) The Originators, pursuant to the Loan Sale Agreement, are
transferring to the BDFS ownership of the Receivables, the security interest in
the Financed Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be
the sole owner of all right, title and interest in, and will have good and
marketable title to, the Receivables and the other property to be transferred by
it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to
the Depositor ownership of the Receivables, the security interest in the
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Financed Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS
will be the sole owner of all right, title and interest in, and will have good
and marketable title to, the Receivables and the other property to be
transferred by it to the Trust. The assignment of the Receivables, all documents
and instruments relating thereto and all proceeds thereof to the Trust, pursuant
to the Pooling and Servicing Agreement, vests in the Trust all interests which
are purported to be conveyed thereby, free and clear of any liens, security
interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust,
BDFS's interest in the Receivables and the proceeds thereof shall be perfected
upon the filing of UCC-1 financing statements (the "Financing Statements") in
the offices specified in Schedule I, the Depositor's interest in the Receivables
and the proceeds thereof shall be perfected upon the filing of UCC-1 financing
statements (the "Financing Statements") in the offices specified in Schedule I,
and there shall be no unreleased statements affecting the Receivables filed in
such offices other than the Financing Statements. If a court concludes that the
transfer of the Receivables from (i) BDFS to the Depositor is a sale, the
interest of the Depositor in the Receivables and the proceeds thereof will be
perfected upon the filing of the Financing Statements in the office of the
Secretary of State of the State of [New York] and (ii) the Depositor to the
Trust is a sale, the interest of the Trust in the Receivables and the proceeds
thereof will be perfected upon the filing of the Financing Statements in the
office of the Secretary of State of the State of New York. If a court concludes
that each such transfer is not a sale, the Pooling and Servicing Agreement and
the transactions contemplated thereby constitute a grant by BDFS to the
Depositor and the Depositor to the Trust of a valid security interest in the
Receivables and the proceeds thereof, which security interest will be perfected
upon the filing of the Financing Statements in the office of the Secretary of
State of the State of New York and [Florida]. No filing or other action, other
than the filing of the Financing Statements in the office of the Secretary of
State of the State of New York [and Florida] referred to above, is necessary to
perfect and maintain the interest or the security interest of the Trust in the
Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations
and warranties of the Depositor, BDFS, and each of the Originators set forth in
the Basic Documents will be true and correct, and the Underwriters may rely on
such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State
of Florida, the Depositor hereby certifies that it has complied with all
provisions of Section 5.17.075 of the Florida Securities and Investor Protection
Act.
3. Purchase, Sale and Delivery of the Certificates. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to cause the
Trust to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, the principal amount of each class of
Certificates set forth opposite the name of such Underwriter on Schedule I
hereto at a purchase price equal to "Price %" as specified on Schedule II
hereto.
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The Depositor will deliver the Certificates to the Representative for
the account of the Underwriters, against payment of the purchase price to or
upon the order of the Depositor by wire transfer or check in Federal (same day)
Funds, at the office of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time on ______ __, 199_-_, or at
such other time not later than seven full business days thereafter as the
Representative and the Depositor determine, such time being herein referred to
as the "Closing Date." The Certificates to be so delivered will be initially
represented by one or more Certificates registered in the name of Cede & Co.,
the 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. Definitive Certificates will be available
only under the limited circumstances specified in the Pooling and Servicing
Agreement.
4. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Certificates for sale to the public (which may include selected dealers), on the
terms set forth in the Prospectus.
5. Covenants of the Depositor and the Sponsor. Each of the Depositor
and the Sponsor covenants and agrees with the Underwriters that:
(a) The Depositor will file the Prospectus, properly completed, with
the Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) no later than the second business day following the earlier of the date
of determination of the offering price or the date it is first used. The
Depositor and the Sponsor will advise the Representative promptly of any such
filing pursuant to Rule 424(b). Subject to the Underwriters compliance with its
obligations set forth in Section 7(h) hereof, the Depositor shall file with the
Commission a current report on Form 8-K (the "Current Report") including any
Derived Information (as defined herein) provided to it by the Representative
pursuant to Section 7(h) hereof (i) no later than the date that the Prospectus
Supplement is filed with respect to "computational materials" and "structural
terms sheets" (as such terms are interpreted in the No-Action letters addressed
to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al. and the Public Securities
Association dated May 20, 1994 and February 17, 1995, respectively
(collectively, the "PSA Letters") or (ii) no later than two days following their
date of first use with respect to "collateral term sheets" (as such term is
interpreted in the PSA Letters).
(b) The Depositor and the Sponsor will advise the Representative
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus and will not effect such amendment or supplementation without the
consent of the Representative, which consent shall not be unreasonably withheld
or delayed; and the Depositor and the Sponsor will advise the Representative
promptly of any amendment or supplementation of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
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(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered by an Underwriter or dealer either (i) any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading, or (ii) for any other
reason it shall be necessary to amend or supplement the Prospectus to comply
with the Act, the Depositor and the Sponsor promptly will notify the
Representative of such event and promptly will prepare, at their own expense, an
amendment or supplement which will correct such statement or omission. Neither
the Representative's consent to, nor the Underwriters distribution of any
amendment or supplement to the Prospectus shall constitute a waiver of any of
the conditions set forth in Section 6 hereof.
(d) The Depositor and the Sponsor will furnish to the Underwriters
copies of any preliminary prospectus, the Prospectus, the Registration Statement
and all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably requests.
(e) The Sponsor will take all actions which are reasonably necessary
to arrange for the qualification of the Certificates for offering and sale under
the laws of such jurisdictions as the Representative designates and will
continue such qualifications in effect so long as required under such laws for
the distribution of the Certificates; provided, however, that in no event shall
the Depositor be obligated to qualify as a foreign corporation or to execute a
general or unlimited consent to service of process in any such jurisdiction.
(f) The Depositor and the Sponsor shall furnish or make available to
the Representative or its counsel such additional documents and information
regarding the Depositor and their respective affairs as the Representative may
from time to time reasonably request, including any and all documentation
reasonably requested in connection with its due diligence efforts regarding
information in the Registration Statement and the Prospectus and in order to
evidence the accuracy or completeness of any of the conditions contained in this
Underwriting Agreement; and all actions taken by the Depositor to authorize the
sale of the Certificates shall be reasonably satisfactory in form and substance
to the Representative.
(g) The Depositor and the Sponsor shall, at all times upon request of
the Representative or its advisors, or both, from the date hereof through the
Closing Date, (i) make available to the Underwriters or their advisors, or both,
prior to acceptance of its purchase, such information (in addition to that
contained in the Registration Statement and the Prospectus) concerning the
offering, the Depositor and any other relevant matters as they possess or can
acquire without unreasonable effort or expense and (ii) provide the Underwriters
or their advisors, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers from, the Depositor and the
Sponsor with respect to such matters.
(h) The Depositor and the Sponsor will cause the Trust to make
generally available to Certificateholders, as soon as practicable, but no later
than sixteen months after the date hereof, an earnings statement of the Trust
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covering a period of at least twelve consecutive months beginning after the
later of (i) the effective date of the registration statement relating to the
Certificates and (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the date of
this Agreement and, in each case, satisfying the provisions of Section 11(a) of
the Act (including Rule 158 promulgated thereunder).
(i) The Depositor, and the Sponsor shall not, and shall not permit any
of its affiliates to, publish or disseminate any material in connection with the
offering of the Certificates unless the Representative shall have consented to
the publication or use thereof. The Representative hereby confirms its consent
to the use of the Prospectus in connection with the offering of the
Certificates.
(j) For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as the Underwriters shall cease to
maintain a secondary market in the Certificates, whichever occurs first, the
Depositor will deliver to the Representative the annual statements of compliance
and the annual independent certified public accountants' reports furnished to
the Trustee pursuant to the Pooling and Servicing Agreement, as soon as such
statements and reports are furnished to the Trustee.
(k) So long as any of the Certificates are outstanding, the Depositor
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission on behalf of the Trust pursuant to the Exchange
Act, or any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Depositor or the Sponsor as the Representative
may reasonably request only insofar as such information reasonably relates to
the Registration Statement or the Prospectus or the transactions contemplated by
the Basic Documents.
(l) On or before the Closing Date, the Depositor and the Sponsor shall
cause the computer records of the Depositor, BDFS and each of the Originators
relating to the Receivables to show the absolute ownership by the Trustee on
behalf of the Trust of the Receivables, and from and after the Closing Date the
Depositor shall not take any action inconsistent with the ownership by the
Trustee on behalf of the Trust of such Receivables, other than as permitted by
the Pooling and Servicing Agreement.
(m) To the extent, if any, that any of the ratings provided with
respect to the Certificates by the rating agency or agencies that initially rate
any of the Certificates are conditional upon the furnishing of documents or the
taking of any other actions by the Depositor or the Sponsor on or prior to the
Closing Date, the Depositor and the Sponsor shall furnish such documents and
take any such other actions. A copy of any such document shall be provided to
the Representative at the time it is delivered to the rating agencies.
(n) The Sponsor will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the printing and filing of
the documents (including the Registration Statement and the Prospectus), (ii)
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the preparation, issuance and delivery of the Certificates to the
Representative, (iii) the fees and disbursements of the Sponsor's, the
Depositor's and BDFS's counsel (including without limitation, local counsel in
the States of ___, ___and ___) and accountants, (iv) the qualification of the
Certificates under state securities laws, including filing fees and the fees and
disbursements of counsel for the Representative in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, if
any is requested, (v) the printing and delivery to the Underwriters of copies of
the Registration Statement and the Prospectus and each amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Certificates, (vii) any fees
charged by rating agencies for the rating of the Certificates, (viii) the fees
and expenses of the Trustee and its counsel and (ix) the fees and expenses of
Stroock & Stroock & Xxxxx LLP.
6. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Certificates will be subject to
the accuracy, as of the date hereof and as of the Closing Date, of the
representations and warranties on the part of the Depositor and the Sponsor
herein, to the accuracy of the written statements of officers of the Depositor
and the Sponsor made pursuant to the provisions of this Section, to the
performance by the Depositor and the Sponsor of its obligations hereunder and to
the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
hereof, of ________________ with respect to certain agreed-upon procedures,
confirming that such accountants are independent public accountants within the
meaning of the Act and the Rules and Regulations, and substantially in the form
of the draft to which the Representative has previously agreed and otherwise in
form and substance reasonably satisfactory to the Representative and counsel for
the Underwriters.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof. On or prior
to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Depositor or the
Sponsor, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the Receivables or particularly the business
or properties of the Trust, the Depositor or the Sponsor which, in the
reasonable judgment of a majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of the Certificates;
(ii) any downgrading in the rating of any [DEBT] securities of [Xxxxxxx Xxxxx,
Inc.] by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on the New York
[OR AMERICAN] Stock
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Exchanges, or any setting of minimum prices for trading on such
exchange; [(IV) ANY SUSPENSION OF TRADING OF ANY SECURITIES OF [XXXXXXX XXXXX,
INC.] ON ANY EXCHANGE, THE NASDAQ NATIONAL MARKET OR IN THE OVER-THE-COUNTER
MARKET;] (v) any banking moratorium declared by Federal, New York or Florida
authorities; or (vi) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters (including the Representative),
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Certificates.
(d) On the Closing Date, each of the Basic Documents and the
Certificates shall have been duly authorized, executed and delivered by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Trustee shall have received a fully executed copy thereof
or, with respect to the Certificates, a conformed copy thereof. The Basic
Documents and the Certificates shall be substantially in the forms heretofore
provided to the Representative.
(e) The Representative shall have received an opinion of Stroock &
Stroock & Xxxxx LLP, special counsel to the Depositor, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Registration Statement became effective under the Act as
of ______, 1997 and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof or any amendment thereto has been issued under the
Act and no proceeding for that purpose has been instituted or
threatened by the Commission.
(ii) The Depositor 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" as defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), or a company "controlled by" an "investment company" within the
meaning of the Investment Company Act.
(iii) The Pooling and Servicing Agreement need be qualified under
the Trust Indenture Act and the Trust is not required to register
under the Investment Company Act.
(iv) The Receivables are chattel paper as defined in the UCC as
in effect in the State of New York.
(v) The statements in the Prospectus under the headings "Summary
of Terms -- Federal Income Tax Consequences," "Federal Income Tax
Consequences," "Summary of Terms -- ERISA Considerations," and "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and accurately describe the material
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consequences to holders of the Certificates under the Code and ERISA.
(vi) The Registration Statement relating to the Certificates as
of its effective date and the Prospectus as of the date of this
Agreement, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements of
the Act and the applicable Rules and Regulations. Such counsel need
express no opinion with respect to the financial statements, the
exhibits, annexes and other financial, statistical, numerical or
portfolio data, economic conditions or financial condition of the
portfolio information included in or incorporated by reference into
the Registration Statement relating to the Certificates, the
Prospectus or any amendment or supplement thereto.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(f) The Representative shall have received the opinion of Stroock &
Stroock & Xxxxx LLP, special counsel to the Trust, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters, regarding the creation, attachment and perfection of a first
priority security interest in the Receivables and the property held in the
Reserve Account in favor of the Trustee on behalf of the Certificateholders.
Such opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the State of New York. To the
extent any portion of such opinion is governed by the laws of the State of
Delaware, such opinion will be given by ___________________.
(g) The Representative shall have received the opinion of in-house
counsel to the Originators, the Depositor and BDFS or such other counsel
acceptable to the Representative and counsel for the Underwriters, dated the
Closing Date, satisfactory in form and substance to the Underwriters and counsel
for the Underwriters to the effect that:
(i) Each of the Originators, the Depositor and BDFS has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with full corporate
power and authority to own its properties and conduct its business,
and is duly qualified to transact business and is in good standing in
each jurisdiction in which its failure to qualify would have a
material adverse effect upon the business or the ownership of its
property.
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(ii) The Registration Statement became effective under the Act as
of ____ __, 1997, and, to the best of our knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof or any amendment thereto has been issued
under the Act and no proceeding for that purpose has been instituted
or threatened by the Commission.
(iii) The Loan Sale Agreement has been duly authorized, executed
and delivered by, and constitutes a legal, valid and binding
obligation of, each Originator, enforceable against such Originator in
accordance with its terms, subject as to enforceability to the effects
of applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in effect
relating to creditors' rights generally and subject to general
principles of equity (whether in a proceeding at law or in equity).
The Loan Purchase Agreement has been duly authorized, executed and
delivered by, and constitutes a legal, valid and binding obligation
of, BDFS, enforceable against BDFS in accordance with its terms,
subject as to enforceability to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and
similar laws now or hereafter in effect relating to creditors' rights
generally and subject to general principles of equity (whether in a
proceeding at law or in equity). The Pooling and Servicing Agreement,
the Loan Purchase Agreement and the Underwriting Agreement have been
duly authorized, executed and delivered by, and each constitutes a
legal, valid and binding obligation of, the Depositor, enforceable in
accordance with its terms, subject as to enforceability to the effects
of applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in effect
relating to creditors' rights generally and subject to general
principles of equity (whether in a proceeding at law or in equity).
The Pooling and Servicing Agreement and the Underwriting Agreement
have been duly authorized, executed and delivered by, and each
constitutes a legal, valid and binding obligation of, BDFS enforceable
against BDFS in accordance with their terms, subject as to
enforceability to the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws now
or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity (whether in a proceeding at
law or in equity).
(iv) The Depositor has duly authorized, executed and delivered
the written order to the Trustee to execute and deliver the
Certificates. When the Certificates have been executed, and delivered
by the Trustee under the Pooling and Servicing Agreement 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, subject as to enforceability to the effects of
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws now or hereafter in effect
relating to creditors' rights generally and subject to general
principles of equity (whether in a proceeding at law or in equity).
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(v) Neither the transfer of certain of the Receivables by the
Originators to the Depositor or the Depositor to the Trustee on behalf
of the Trust, nor the assignment by the Depositor of the Trust Estate
to the Trust, nor the execution, delivery and performance by the
Depositor, BDFS and each of the Originators of this Agreement and the
Basic Documents to which it is a party, nor the consummation by the
Depositor of the transactions contemplated thereby will conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Depositor, any Originator or BDFS, as the case may be, pursuant to
the terms of the certificate of incorporation or the by-laws of the
Depositor, any Originator or BDFS or any statute, rule, regulation or
order of any governmental agency or body, or any court having
jurisdiction over the Depositor, such Originator or BDFS or its
properties, or any agreement or instrument known to me after due
investigation to which the Depositor, such Originator or BDFS is a
party or by which the Depositor, such Originator or BDFS or any of its
properties is bound.
(vi) BDFS has all necessary licenses required by law in
connection with its performance as Servicer pursuant to the Pooling
and Servicing Agreement.
(vii) No authorization, license, approval, consent or order of,
or filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
of this Agreement and each of the Basic Documents to which it is a
party by the Depositor, any Originator or BDFS.
(viii) To the best of the knowledge of such counsel, there are no
legal or governmental proceedings pending to which the Depositor, any
Originator or BDFS is a party or of which any property of the
Depositor, any Originator or BDFS is the subject, and no such
proceedings are known by me to be threatened or contemplated by
governmental authorities or threatened by others (i) asserting the
invalidity of all or any part of the Underwriting Agreement, the Loan
Sale Agreement, the Loan Purchase Agreement or the Pooling and
Servicing Agreement or (ii) that could materially adversely affect the
ability of the Depositor, any Originator or BDFS to perform its
obligations under this Agreement or any of the Basic Documents to
which it is a party.
(ix) Each Originator has full power and authority to sell and
assign the property to be sold and assigned to the Depositor by it
pursuant to the Loan Sale Agreement and has duly authorized such sale
and assignment to the BDFS by all necessary corporate action.
(x) BDFS has full power and authority to sell and assign the
property to be sold and assigned to the Depositor by it pursuant to
the Loan Sale Agreement and has duly authorized such sale and
assignment to the BDFS by all necessary corporate action.
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(xi) Such counsel is familiar with the Originators' standard
operating procedures relating to the acquisition of a perfected first
priority security interest in the vehicles financed by each of such
Originators pursuant to retail installment sale contracts in the
ordinary course of their business. Assuming that these standard
procedures are followed with respect to the perfection of security
interests in the Financed Vehicles, each Originator has acquired or
will acquire a perfected first priority security interests in the
Financed Vehicles with respect to which it has originated Receivables
sold by it to the Depositor.
(xii) Immediately prior to the transfer of certain of the
Receivables by the Originators pursuant to the Loan Purchase
Agreement, each Originator was the sole owner of all right, title and
interest in the Receivables and the other property transferred by it
to the Depositor.
(xiii) To such counsel's knowledge, there are no material legal
or governmental proceedings pending or threatened against the
Depositor other than those disclosed in the Registration Statement and
the Prospectus.
(xiv) To the best of such counsel's knowledge, there are no
contracts or documents of the Depositor which are required to be filed
as exhibits to the Registration Statement pursuant to the Act or the
Rules or Regulations which have not been so filed. The documents
incorporated by reference in the Registration Statement and
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, except
as to the financial statements and other financial and statistical
data included therein, to which such counsel need not express any
opinion.
(xv) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and the
Registration Statement relating to the Certificates as of its
effective date, and the Prospectus, as of the date of this Agreement,
and any amendment or supplement thereto, as of its date when it 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 on its date contained or on the Closing Date contains, any
untrue statement 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; provided that such counsel need not express
any view with respect to the financial, statistical or computational
material included in or incorporated by reference into the
Registration Statement relating to the Certificates, the Prospectus or
any amendment or supplement thereto.
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Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(h) The Representative shall have received an opinion addressed to it
of Stroock & Stroock & Xxxxx LLP, in its capacity as counsel to the
Underwriters, dated the Closing Date, with respect to (i) the consolidation
of the assets and liabilities of the Depositor with those of any of the
Originators under the doctrine of substantive consolidation, (ii) the
creation of (x) a "true sale" with respect to the sale of the Receivables
from each of the Originators to the
Depositor and from the Depositor to the Trust or (y) a valid and binding
security interest in the Receivables and (iii) the validity of the Certificates
and such other related matters as the Representative shall reasonably require
and the Depositor shall have furnished or caused to be furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters. Such opinions shall be limited to the laws of the
State of New York and United States federal law.
(i) The Representative shall have received an opinion of __________,
counsel to the Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the effect
that:
(i) The Trustee is a ___validly existing under the laws of the
___.
(ii) The Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of the Pooling and
Servicing Agreement.
(iii) The Pooling and Servicing Agreement has been duly executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its respective terms, except that such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws applicable to banking corporations
affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Certificates have been duly authenticated by the Trustee
in accordance with the terms of the Pooling and Servicing Agreement.
(j) The Representative shall have received copies of each opinion of
counsel delivered to either rating agency, together with a letter addressed to
the Underwriters, dated the Closing Date, to the effect that the Underwriters
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may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(k) The Representative shall have received a certificate dated the
Closing Date of the Depositor, executed by any two of the Chairman of the Board,
the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Depositor, in which
such officer shall state that, to the best of its knowledge after reasonable
investigation, (i) the representations and warranties of the Depositor,
contained in this Agreement and the Basic Documents to which it is a party are
true and correct in all material respects, (ii) that the Depositor, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (iii) since
_________ __, 199_-_, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, BDFS or the Depositor, has occurred. Such
certificate shall have attached thereto a true and correct photocopy of the
demand note furnished to the Depositor by the Sponsor.
(l) The Representative shall have received a certificate dated the
Closing Date of the Sponsor, executed by any two of the Chairman of the Board,
the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Sponsor in which
such officer shall state that, to the best of its knowledge after reasonable
investigation, (i) the representations and warranties of the Sponsor contained
in this Agreement, the Loan Purchase Agreement and the Pooling and Servicing
Agreement are true and correct in all material respects, (ii) that the Sponsor
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the and (iii) since
______ __, 199_-_, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, the Sponsor or the Depositor, has occurred.
(m) The Representative shall have received evidence satisfactory to it
and counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Trustee, for filing in the
appropriate filing offices reflecting (1) the transfer of the interest in the
Receivables, certain other property and the proceeds thereof (A) from each
Originator to the Depositor and (B) from the Depositor to the Trust, and (2) the
grant of the security interest by the Trust in the Receivables, certain other
property and the proceeds thereof to the Trustee.
(n) The Class A Certificates shall be rated "AAA" or its equivalent,
and the Class B Certificates shall be rated at least "_" or its equivalent, in
each case by Xxxxx'x and S&P and neither corporation shall have placed the
Certificates under surveillance or review with possible negative implications.
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The Depositor will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) The Depositor and the Sponsor, jointly and severally, agree to
indemnify and hold harmless each Underwriter against any and all losses, claims,
damages or liabilities, joint or several, or any action in respect thereof
(including but not limited to, any loss, claim, damage or liability (or action
relating to purchases and sales of the Certificates)), to which such Underwriter
may become subject, under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that neither the Depositor nor
the Sponsor shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Underwriters' Information
and the Derived Information.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Depositor and the Sponsor against any losses, claims, damages or liabilities
to which the Depositor or the Sponsor may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto or any related preliminary prospectus, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the Underwriters' Information, and will reimburse
any legal or other expenses reasonably incurred by the Sponsor or the Depositor
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above or (e) below, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
-18-
under subsection (a) or (b) above or (e) below, except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify any indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise that under this Section. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and to the extent that it may wish to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, except to
the extent provided in the next following paragraph, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonable satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriters, if the indemnified
parties under this Section 7 consist of the Underwriters, or by the Depositor
and the Sponsor, if the indemnified parties under this Section 7 consist of the
Depositor and the Sponsor.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 7 (a), (b) and (e) hereof, shall use its best 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 (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for 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.
(d) Each Underwriter agrees to provide the Depositor with a copy of
any Derived Information (as defined in Section 7(h) below) no later than the
date preceding the date such Derived Information is required to be filed with
the Commission on a Current Report pursuant to the PSA Letters.
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(e) Each Underwriter severally agrees, assuming all Sponsor-Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor and the Sponsor against any losses, claims, damages
or liabilities to which the Depositor or the Sponsor may become subject, under
the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of any material fact contained in the Derived Information
provided by such Underwriter, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse any
legal or other expenses reasonably incurred by the Sponsor or the Depositor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(f) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless the indemnified party under subsection (a) or
(b) above [CONTRIBUTION FOR COMP MATERIAL - SUBSECTION (E)?], then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor and the
Sponsor on the one hand and the Underwriters on the other from the offering of
the Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, 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 or the Sponsor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor and the Sponsor on the one hand and the Underwriters on the other
shall be deemed to be in such proportion that the Underwriters shall be
responsible for that portion represented by the excess, if any, of the sale
price received by the Underwriters for the resale of the Certificates over the
purchase price paid by the Underwriters to the Depositor for the Certificates
(the "Spread"); and the Depositor and the Sponsor shall be responsible for the
balance. 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 Depositor or the Sponsor or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Depositor, the Sponsor and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (f) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purposes) or by
any other method of allocation which does not take into account the equitable
considerations referred to herein.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (f) shall be deemed to include any legal or other expenses reasonably
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incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (f). Notwithstanding
the provisions of this subsection (f), in no case shall any Underwriter (except
(x) with respect to any Derived Information incorporated by reference into the
Registration Statement or Prospectus at the request of such Underwriter (i)
which had not been approved by the Depositor for use by the Underwriters or (ii)
for which the Depositor have not received a letter from __________ in form and
substance satisfactory to them and (y) as may be provided in any agreement among
the Underwriters relating to the offering of the Certificates) be responsible
for any amount (not including the fees and expenses of its counsel) in excess of
the Spread received by such Underwriter, as set forth on the cover page of the
Prospectus. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(g) The obligations of the Depositor and the Sponsor under this
Section shall be in addition to any liability which the Depositor and the
Sponsor may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls the Underwriters within the meaning of the
Act or the Exchange Act. The obligations of the Underwriters shall be in
addition to any liability which the Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Depositor,
and each of its officers that signed the Registration Statement.
(h) For purposes of this Section 7, as to each Underwriter the term
"Derived Information" means such portion, if any, of the information delivered
to the Depositor by such Underwriter pursuant to subsection (d) hereof for
filing with the Commission in the Current Report as:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Sponsor-Provided Information (as defined
below); and
(iii) is of the type of information defined as "computational
materials," "structural term sheets" or "collateral term sheets" (as
such terms are interpreted in the PSA Letters).
"Sponsor-Provided Information" means any computer tape furnished to the
Underwriters by the Sponsor concerning the assets comprising the Trust.
(i) The Underwriters confirm that the information set forth in the
last paragraph on the cover page of the Prospectus and in the ______ paragraph
under the caption "Underwriting" in the Prospectus (together, the "Underwriters'
Information") is correct, and together with the Derived Information, constitutes
the only information furnished in writing to the Depositor by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
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(i) Each Underwriter severally represents and warrants to, and
covenants with, the Depositor and the Sponsor that all Derived
Information provided to the Depositor pursuant to this Section 7, as
of the date such information is so provided and as of the date such
information is filed by the Depositor with the Commission will not
include any untrue statement of a material fact, when considered in
conjunction with the Prospectus, and will not omit to state any
material fact necessary, when considered in conjunction with the
Prospectus, to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
(ii) Each Underwriter severally further covenants with the
Depositor that if any Derived Information required to be provided to
the Depositor pursuant to subsection (d) above is determined to
contain any information that is inaccurate or misleading, such
Underwriter (whether or not such Derived Information was provided to
the Depositor or filed by the Depositor with the Commission) shall
promptly prepare and deliver to the Depositor and each prospective
investor which received such Derived Information corrected Derived
Information. All information provided to the Depositor pursuant to
this Section 7(i) shall be provided within the time periods set forth
in subsection (d) above.
(iii) Each Underwriter severally covenants with the Depositor
that all Derived Information delivered by it to prospective investors
shall contain a legend satisfactory in substance to the Depositor.
(j) Notwithstanding any other provision herein, each Underwriter
severally agrees to pay all costs and expenses of the Depositor incurred in
connection with (i) the filing by the Depositor of any Derived Information with
the Commission and (ii) any action by the Depositor against such Underwriter to
enforce any of its rights set forth in this Section 7, including, without
limitation, legal fees and expenses.
8. Default of Underwriter. If any of the Underwriters default in their
obligations to purchase Certificates hereunder, and the aggregate principal
amount of Certificates that the defaulting Underwriter agreed but failed to
purchase does not exceed 10% of the total principal amount of the Certificates,
the Underwriters may make arrangements satisfactory to the Depositor for the
purchase of such Certificates by other persons including the non-defaulting
Underwriter, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriter shall be obligated, in proportion to its commitment
hereunder, to purchase the Certificates that such defaulting Underwriter agreed
but failed to purchase. If any of the Underwriters so default and the aggregate
principal amount of Certificates with respect to which such default or defaults
occur exceeds 10% of the total principal amount of Certificates and arrangements
satisfactory to the Underwriters and the Depositor for the purchase of such
Certificates by other persons are not make within 36 hours after such default,
this Agreement will terminate without liability on the part of the Depositor,
except as provided in Section 9 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve the Underwriter from liability for its
default.
-22-
9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or its officers and of the Underwriters set forth in or made pursuant
to this Agreement or contained in certificates of officers of the Depositor
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation or statement as to the results thereof, made by
or on behalf of the Underwriters, the Depositor or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the
Depositor shall remain responsible for the expenses to be paid or reimbursed by
the Sponsor pursuant to Section 5(l) and the respective obligations of the
Depositor, the Sponsor and the Underwriters pursuant to Section 7 shall remain
in effect. If for any reason the purchase of the Certificates by the
Underwriters is not consummated (other than because of a failure to satisfy the
conditions set forth in items (iii), (v) and (vi) of Section 6(b)), the
Depositor will reimburse the Underwriters for all out-of-pocket expenses
reasonably incurred by them in connection with the offering of the Certificates.
10. Notices. Any written request, demand, authorization, direction,
notice, consent or waiver shall be personally delivered or mailed certified
mail, return receipt requested (or in the form of telex or facsimile notice,
followed by written notice as aforesaid) and shall be deemed to have been duly
given upon receipt, if sent to the Underwriters or the Representative, when
delivered to the Representative at _____________________, Attention: Investment
Banking Department-- Transactions Advisory Group (fax # __________), and if sent
to the Depositor or the Sponsor, when delivered to 000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000, Attention: General Counsel (Fax # (000) 000-0000).
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligations hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to the
choice of law provisions thereof.
14. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
-23-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Depositor, the Sponsor
and the Underwriters in accordance with its terms.
Very truly yours,
XXXXXXX AUTO RECEIVABLES CORP.
By:__________________________
Name:
Title:
XXXXXXX DEALER FINANCIAL
SERVICES, INC.
By:__________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first written above.
__________________________________________
By:_______________________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the Several
Underwriters
-24-
SCHEDULE I
Initial Principal
Balance of
Underwriter Class A Certificates
----------- --------------------
--------------................................. $
--------------................................
Total.........................................
Initial Principal
Balance of
Underwriter Class B Certificates
----------- --------------------
______________................................. $
--------------.................................
--------------.................................
Total..........................................
-25-
SCHEDULE III
Original
Principal
Security Balance $ Price % Price $ Rate %
-------- --------- ------- ------- ------
Class A Certificates
Class B Certificates
Total Price to Public: $
Total Price to Sponsor:
Underwriting Discounts
and Commissions: $
-26-
