Exhibit 1.1
$___,___,___
___________ TRUST 200_-__
_______ Auto Receivable Asset-Backed Notes
_______ Auto Receivable Asset Backed Certificates
ML ASSET BACKED CORPORATION
Depositor
FORM OF UNDERWRITING AGREEMENT
______ __, 200_
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
ML Asset Backed Corporation, a Delaware corporation (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
Notes" (the "Notes") and "_____ Auto Receivable Asset Backed Certificates"
(the "Certificates" and, together with the Notes, the "Offered Securities") in
one or more series (each, a "Series") under the terms and conditions contained
herein and in the applicable Terms Agreement (as hereinafter defined). The
property of each Trust may consist primarily of, among other things, (i) a
pool of 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 a sale and servicing agreement (the "Sale and Servicing
Agreement"), among the Trust, the Depositor, a third party seller (the
"Sponsor"), the Sponsor, as servicer (in such capacity, the "Servicer") and
__________, as indenture trustee (the "Indenture Trustee"), pursuant to which
the Loans and other property of the Depositor will be sold to the Trust and
the Loans will be serviced by the Servicer and (vi) all proceeds of the
foregoing.
Each offering of Offered Securities will be made through Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and other
underwriters (collectively, the "Underwriters") for whom Merrill Lynch is
acting as representative (the "Representative"). Whenever the Depositor
determines to form a Trust and to make an offering of Offered Securities, it
will enter into an agreement (each, a "Terms Agreement") providing for the
sale of such Offered Securities to, and the purchase and offering thereof by,
the Underwriters who execute the Terms Agreement, or have authorized the
Representative to enter into such Terms Agreement on their behalf, and agree
thereby to become obligated to purchase such Offered Securities from the
Depositor. Such Terms Agreement shall specify, among other things, principal
balance, notional amount or stated principal balance of each related class or
subclass to be issued and their terms not otherwise specified in the Sale and
Servicing Agreement, the price at which such Offered Securities are to be
purchased by the Underwriters from the Depositor, the aggregate amount of
Offered Securities to be purchased by each Underwriter that is a party to such
Terms Agreement, and the initial public offering price or the method by which
the price at which such Offered Securities are to be sold will be determined.
The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representative and the Depositor.
Each offering of Offered Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be
binding upon the related Underwriters. Except as otherwise required by the
context, all references herein to a Terms Agreement, Closing Time, Receivables
Purchase Agreement, Indenture, Trust Agreement, Sale and Servicing Agreement,
Administration Agreement, Trust, Underwriter or Underwriters and Loans shall
refer to the Terms Agreement, Closing Time, Receivables Purchase Agreement,
Indenture, Trust Agreement, Sale and Servicing Agreement, Administration
Agreement, Trust, Underwriter or Underwriters and Loans, as the case may be,
relating to the related offering of Offered Securities.
Each Series of Notes will be issued pursuant to an indenture (each,
an "Indenture"), among the Trust, the Sponsor, the Servicer and the Indenture
Trustee. Each Note will represent an obligation of the Trust. Pursuant to an
administration agreement (each, an "Administration Agreement"), among the
Depositor, the Sponsor, as administrator (in such capacity, the
"Administrator"), the Trust and the Indenture Trustee, the Administrator will
perform certain administrative obligations of the Trust under the Indenture.
Pursuant to the Indenture, the Trust property will be held by the Indenture
Trustee on behalf of the holders of the Notes. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Indenture or the Sale and Servicing Agreement, as the case may be.
Simultaneously with the issuance of each Series of the Notes, the
Depositor will, if specified in the Terms Agreement, cause the Trust to issue
Certificates in an aggregate principal amount set forth in the Terms
Agreement. Each Trust will be created and the related Certificates will be
issued pursuant to a trust agreement (each, a "Trust Agreement"), among the
Depositor and _______________, a __________________, as trustee (the "Owner
Trustee"). Each Certificate will evidence a fractional undivided interest in
the Trust and will be subordinated to the Notes to the extent described in the
Indenture and Trust Agreement.
The Terms Agreement, Indenture, Trust Agreement, Administration
Agreement, Sale and Servicing Agreement, the receivables purchase agreement
(the "Receivables Purchase Agreement"), between the Sponsor, as seller, and
the Depositor, as purchaser, and the spread account agreement, if any, (the
"Spread Account Agreement"), among the Trust and the Indenture 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. 333-45336)
covering the registration of the Offered Securities 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 Offered Securities 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 Offered
Securities 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 Offered Securities 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 ("EDGAR").
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, as of the
date of the Terms Agreement and as of the Closing Time referred to in the
Terms Agreement, and agrees with the Underwriters, as follows:
(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 Offered Securities 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 Depositor 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 Offered Securities will, at the time of such
delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, 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 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 corporation under the laws
of the State of Delaware; 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 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, and
each Terms Agreement as of the date thereof will have 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 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 Notes. The Notes have been duly
authorized and, at the Closing Time, will have been duly executed,
issued and delivered and, when authenticated in the manner provided
for in the Indenture and delivered against payment of the purchase
price therefor as provided herein and in the Terms Agreement, will
constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their 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), and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(viii) 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.
(ix) Description of the Offered Securities and Basic
Documents. The Offered Securities 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.
(x) 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 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.
(xi) 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.
(xii) 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.
(xiii) 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 Offered Securities, (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.
(xiv) 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.
(xv) 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 favor of the Indenture Trustee under the Indenture; 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.
(xvi) 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").
(xvii) 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 Offered Securities. The several commitments of
the Underwriters to purchase the Offered Securities pursuant to the applicable
Terms Agreement 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 Offered Securities 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 the date
set forth in the applicable Terms Agreement, 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"). Pursuant to Rule 15c6-1(d) under the
Exchange Act, the parties hereto have agreed that the Closing Date will be not
less than five business days following the date of the related Terms
Agreement.
The Offered Securities 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
Offered Securities will be represented by book entries on the records of DTC
and participating members thereof. Certificates for the Offered Securities
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 Offered Securities shall be made against payment of
the purchase price by wire transfer of immediately available funds to a bank
account designated by the Depositor.
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 Offered Securities 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 EDGAR, 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 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 EDGAR, 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 Offered Securities 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 Offered Securities, 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 Offered
Securities 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 the Terms 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 Offered Securities 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 the Terms Agreement. The Depositor will
also supply the Underwriters with such information as is necessary
for the determination of the legality of the offering and sale of the
Offered Securities 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 Offered
Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(i) Reports, Statements and Certificates. So long as any
Offered Securities 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) each payment date
certificate delivered to the Indenture Trustee pursuant to the
Indenture, (ii) the annual statements of compliance, annual
independent certified public accountants' reports and annual opinions
of counsel furnished to the Indenture Trustee or the Owner Trustee
pursuant to the Basic Documents, as soon as such statements, reports
and opinions are furnished to the Indenture Trustee or the Owner
Trustee and (iii) such other information concerning the Depositor,
the Trust or the Offered Securities 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 and the
Terms 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, the Terms
Agreement, any agreement among the Underwriters, each Basic Document and such
other documents as may be required in connection with the issuance, offering,
purchase, sale or delivery of the Offered Securities, (iii) the preparation,
issuance and delivery of the certificates for the Offered Securities 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
Offered Securities 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, any Term Sheet, the Prospectus and any amendments on supplements
thereto, (vii) the fees and expenses of the Owner Trustee and the Indenture
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 Moody's Investors Service, Inc. ("Moody's"),
Fitch, The International Rating Agency ("Fitch") and Standard & Poor's, a
division of The McGraw-Hill Companies, Inc. ("Standard & Poor's, and together
with Moody's and Fitch, the "Rating Agencies") in connection with the rating
of the Offered Securities.
(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 a Terms Agreement or 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
Offered Securities, 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 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 corporation 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.
(ii) This Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Depositor.
(iii) The Depositor has duly authorized, executed and
delivered each Basic Document to which it is a party, and
assuming due authorization, execution and 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).
(iv) Assuming the due authorization, execution and
delivery of each Basic Document to which the Trust is a party
by the Owner Trustee, on behalf of the Trust, and by each
other party thereto other than the Depositor, each such Basic
Document constitutes the valid, legal and binding obligation
of the Trust enforceable against the Trust 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 Certificates have been duly and validly
authorized, executed and issued by the Trust and, when
authenticated and delivered in accordance with the Trust
Agreement, will be validly issued and outstanding and
entitled to the benefits of the Trust Agreement.
(vi) The Notes have been duly and validly authorized,
executed and issued by the Trust and, when authenticated
pursuant to the Indenture and delivered against payment of
the consideration specified in the Terms Agreement, will be
entitled to the benefits of the Indenture and will constitute
valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms and the
terms of the Indenture, 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).
(vii) The Offered Securities 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) To the best of such counsel's knowledge, the
Depositor is not in violation of its organizational or
charter documents or by-laws and, 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, 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 Offered Securities.
(xii) The execution, delivery and performance by the
Depositor of this Agreement, the Basic Documents to which it
is a party and the Offered Securities 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 Offered Securities, (ii) seeking to
prevent the issuance of the Offered Securities 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
Offered Securities.
(xiv) The statements in the Prospectus under the captions
"Summary of the Terms of the Securities", "Risk Factors",
"Description of the Notes", "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) 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.
(xvi) 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 and each Trustee's Statement of Eligibility on Form
T-1 (the "Form T-1s"), 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.
(xvii) 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.
(xviii) 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 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.
(xix) 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.
(xx) The Sale and Servicing Agreement, together with the
filing of the UCC financing statements referred to in
paragraph (xxi), creates and perfects the ownership interest
of the Trust in the Loans which is a valid first priority
ownership interest; a financing statement with respect to the
Loans has been filed with the Secretary of State of the State
of Delaware pursuant to the Delaware Uniform Commercial Code,
as amended, and with the Secretary of State of the State of
New York, pursuant to the New York Uniform Commercial Code,
as amended; and no other filings in any jurisdiction or any
other actions are necessary to perfect the ownership interest
of either Trustee in the Loans against any third parties.
(xxi) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid first priority security
interest in the Loans, the security interests in the Financed
Vehicles securing the Loans and the proceeds of each of the
foregoing, which security interest has been perfected by the
filing of financing statements with the Secretary of State of
the State of Delaware and the Secretary of State of the State
of New York, each as pursuant to the Uniform Commercial Code
as in effect in such state. No filing or other action, other
than the filing of the financing statements referred to
above, is necessary to perfect and maintain the interest or
the security interest of the Indenture Trustee in the Loans,
the security interests in the Financed Vehicles securing the
Loans and the proceeds of each of the foregoing against third
parties.
(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 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
any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on
the Sponsor.
(iv) None of the execution and delivery of the Sale and
Servicing Agreement, [the Administration 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.
(v) 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.
(vi) 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.
(vii) The Sale and Servicing Agreement, the
Administration 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 their respective 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).
(viii) 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 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 Indenture
Trustee for the benefit of the Noteholders pursuant to the
Sale and Servicing Agreement, the Trust Agreement and the
Indenture, 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.
(ix) None of the execution and delivery of this
Agreement, the Sale and Servicing Agreement, the
Administration 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.
(x) 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 Sale and
Servicing Agreement and the Indenture.
(xi) The provisions of the Sale 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
Indenture.
(xii) The provisions of the Indenture are effective to
create, in favor of the Indenture Trustee for the benefit of
the Noteholders as security for the Trust's obligations under
the Notes, 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").
(xiii) 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 Indenture 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 Indenture Trustee in the Loans and the
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 corporation under the laws of
the State of Delaware.
(ii) The Depositor has all necessary corporate 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) 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
corporate action on the part of the Depositor.
(iv) The Trust has been duly formed and is validly
existing as a business trust pursuant to the laws of the
State of Delaware, 12 Del. C. ss.ss. 3801, et seq.
(v) The Trust Agreement authorizes the Trust to execute
and deliver the Indenture, the Sale and Servicing Agreement,
[and] the Administration Agreement [and the Spread Account
Agreement], to issue the Certificates and the Notes and to
grant the trust estate to the Indenture Trustee as security
for the Notes.
(vi) Assuming that the Certificates have been duly
authorized, executed and issued by the Trust, the
Certificates have been validly issued and are entitled to the
benefits of the Trust Agreement.
(vii) 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
Indenture. Insofar as the Delaware Uniform Commercial Code, 6
Del. C. ss. 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 Indenture 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 Indenture
Trustee will be prior to the security interest of all other
creditors, and excluding purchase money security interests
under ss. 9-312(4) of the Delaware UCC, and temporarily
perfected security interests pursuant to ss. 9-306(3) of the
Delaware UCC (as to the priority of temporarily unrecorded
security interests in proceeds), subject to customary and
usual exceptions.
(viii) 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.
(ix) Assuming that the Sale 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.
(x) The Trust Agreement is a legal, valid and binding
agreement of the parties thereto, enforceable against such
parties, in accordance with its terms.
(xi) The Offered Securities have been duly and validly
authorized and, when executed, authenticated and delivered in
accordance with the Trust Agreement and the Indenture, in the
case of (i) the Notes, will be legal, valid and binding
obligations of the Trust, enforceable against the Trust, in
accordance with their terms, and (ii) the Certificates, will
be duly and validly issued and outstanding and entitled to
the benefits of the Trust Agreement.
(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. ss. 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 the State of _________.
(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 (i)
for federal income tax purposes, the Notes will be considered debt
and the Trust will not be an association taxable as a corporation and
(ii) the statements in the Prospectus under the caption "Material
Federal Income Tax Consequences", to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all material
respects.
(j) Opinion of Counsel for Indenture Trustee. At the Closing
Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of __________, counsel to the Indenture
Trustee, in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Indenture Trustee has been duly incorporated and
is validly existing as a banking corporation under the laws
of the State of ___________.
(ii) The Indenture Trustee, at the time of its execution
and delivery of the Indenture, had full power and authority
to execute and deliver the Indenture and has full power and
authority to perform its obligations thereunder.
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Indenture Trustee and, assuming
due authorization, execution and delivery thereof by the
Trustee, constitutes the valid and binding obligation of the
Indenture Trustee enforceable against the Indenture 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 Indenture 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 Indenture
Trustee to carry out the transactions contemplated in the
Indenture.
(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 Indenture Trustee of the
Indenture.
(vi) Each of the Basic Documents to which Indenture
Trustee is a party has been duly executed and delivered by
Indenture Trustee and constitutes a legal, valid and binding
obligation of Indenture Trustee enforceable against the
Indenture Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable
solely against the [assets of the Trust] and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws
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).
(vii) The Notes have been duly authenticated and
delivered by the Indenture Trustee in accordance with the
terms of the Indenture.
(k) Opinion of Counsel for Owner Trustee. At the Closing
Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of ___________________, counsel to the
Owner Trustee, in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing
under the laws of the State of Delaware.
(ii) The Owner Trustee has full corporate trustee power
and authority to enter into and perform its obligations under
the Trust Agreement and, on behalf of the Trust, under the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(iii) The execution and delivery of the Trust Agreement
and, on behalf of the Trust, of the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the
Certificates and the Notes and the performance by the Owner
Trustee of its obligations under the Trust Agreement, the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all
necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing
Agreement, the Indenture and the Administration Agreement
constitute valid and binding agreements of the Owner Trustee,
enforceable against the Owner Trustee in accordance with
their terms, subject, as to enforcement of remedies, (A) to
applicable bankruptcy, insolvency and reorganization,
generally, and (B) to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trustee, of the
Indenture, the Sale and Servicing Agreement and the
Administration Agreement do not require any consent, approval
or authorization of, or any registration or filing with, any
Delaware or United States Federal governmental authority
having jurisdiction over the trust power of the Owner
Trustee, other than those consents, approvals or
authorizations as have been obtained and the filing of the
Certificate of Trust with the Secretary of State of the State
of Delaware.
(vi) The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, the Sale and
Servicing Agreement, the Indenture and the Administration
Agreement, and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a
breach or violation of or constitute a default under, the
Articles of Association or By-laws of the Owner Trustee.
(l) 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 ____________, 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.
(m) 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.
(n) Maintenance of Rating. At the Closing Time, the Class __
Notes shall be rated "____" by Moody's, "____" by Fitch and "____" by
Standard and Poor's and the Class __ Certificates shall be rated
"____" by Moody's, "____" 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
satisfactory to the Underwriters, confirming that the Notes and 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 Notes, 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 Notes or any other securities of the Depositor, the
Sponsor or any of their respective Affiliates.
(o) Additional Rating Agency Requirements. The Depositor
will, to the extent, if any, that the ratings provided with respect
to the Offered Securities 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.
(p) Indemnity Agreement. The Underwriters shall have received
the duly authorized, executed and delivered Indemnity Agreement from
the Sponsor in the form attached hereto as Exhibit B.
(q) 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 Offered Securities 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 Offered
Securities, 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
Kidder, Peabody 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 "Kidder/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 Kidder/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
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;
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
Offered Securities 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.
"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
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
Offered Securities 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
Offered Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Offered Securities 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 Offered Securities. 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 Offered Securities
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 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 Offered Securities 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 Offered Securities 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 Offered Securities or to enforce contracts for the sale of the
Offered Securities, (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 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
Offered Securities 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, 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 Offered Securities 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 Offered Securities 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 250 Vesey Street,
World Financial Center, New York, New York 10281-1310, attention Syndicate
Department; notices to the Depositor shall be directed to 250 Vesey Street,
World Financial Center, New York, New York 10281-1310, attention President.
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 Offered
Securities 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 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.
<PAGE>
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.
ML ASSET BACKED CORPORATION,
as Depositor
By: ___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several
Underwriters
By: ________________________________________________
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Principal Amount of
Name of Underwriter Principal Amount of Notes Certificates
------------------- ------------------------- ----------------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................... $ $
______________________........................... ----------------------- ---------------------
Total................................... $ $
======================= =====================
</TABLE>
<PAGE>
EXHIBIT A
ML ASSET BACKED CORPORATION
(Depositor)
______ Auto Receivable Asset-Backed Notes
______ Auto Receivable Asset Backed Certificates
Series _______
TERMS AGREEMENT
------- --, ----
To: ML Asset Backed Corporation, as Depositor under the Sale and
Servicing Agreement dated as of _______ __, ____ (the "Sale and
Servicing Agreement"). Capitalized terms used herein but not
otherwise defined shall have the meanings ascribed thereto in the
Sale and Servicing Agreement.
Re: Underwriting Agreement dated_______ __, ____.
Title: ___________ Auto Receivable Asset-Backed Notes, Series ____.
-----
Principal Amount: $ (approximate;
---------------- --------------------------- subject to a
variance of plus or
minus 5%)
Terms of the Notes:
------------------
Original Interest Rate
Class Principal Amount or Formula
----- ----------------- ---------------
A $_____________
(approximate; subject to a
variance of plus or minus 5%)
Terms of the Certificates:
-------------------------
Original Interest Rate
Class Principal Amount or Formula
------ ------------------------ --------------
B $
----------
(approximate; subject to a
variance of plus or minus 5%)
<PAGE>
Ratings:
--------
Class Moody's Fitch Standard & Poor's
----- ------------ ------- -------------------
A
B
Servicer: ________________________ (the "Servicer").
--------
Trustee: _________________________ (the "Trustee").
-------
Terms of Sale: The purchase price payable by the Underwriters for the
Offered Securities is _____% of the principal amount of the Offered Securities
plus accrued interest at the related Interest Rate from the date of initial
issuance.
Payment of the purchase price shall be in immediately available
Federal funds wired to such bank as may be designated by the Depositor.
The Class ___ Notes issued pursuant to the Indenture and the Class
___ Certificates issued pursuant to the Trust Agreement are not subject to
this Agreement.
Underwriting Breakdown:
----------------------
<TABLE>
<CAPTION>
Class A Class B
----------------------- --------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith $ $
------------------ -------------
Incorporated.................................
_____________________________............................ $ $
------------------ -------------
Total $ $
------------------ -------------
</TABLE>
Underwriting Commissions:
------------------------
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the
Depositor to the Underwriters in connection with the purchase of the Notes.
Public offering price and/or method of determining price at which the
Underwriters will sell the Notes:
Class A: __________%
Class B: __________%
Loans: The motor vehicle installment loans (the "Loans") sold by the
Sponsor to the Depositor pursuant to the Receivables Purchase Agreement, dated
as of _______ __, ____, between the Depositor, as purchaser, and the Sponsor,
as seller, and conveyed by the Depositor to the Trust pursuant to the Sale and
Servicing Agreement, are more fully described in Exhibit A to the Sale and
Servicing Agreement.
Distribution Dates: The ___ day (or, if such day is not a business
day, the next succeeding business day) of each month, commencing with _______
__, ____.
Delivery Date and Location: 10:00 a.m., New York time, on or about
______ __, ____, or at such other time not later than seven full business days
thereafter as may be agreed upon, at the offices of ____________ at
---------------------------------------------.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon, it
will become a binding agreement among the Depositor and the several
Underwriters in accordance with its terms.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
as Representative of the several Underwriters
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first written:
ML ASSET BACKED CORPORATION,
as Depositor
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF INDEMNIFICATION AGREEMENT
---------------------------------
