Exhibit 1.2
USAA AUTO GRANTOR TRUST 20__-[ ]
Asset Backed Certificates
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
USAA ACCEPTANCE, LLC
(DEPOSITOR)
FORM OF UNDERWRITING AGREEMENT
____________, 20__
[Underwriter[s]]
[Address]
[As Joint Global Coordinators,
Bookrunners and Representatives of the
Several Underwriters named
on Schedule I hereto]
Dear Ladies and Gentlemen:
USAA
Acceptance, LLC, a Delaware limited liability company (the
"Depositor"), proposes to form a trust, USAA Auto Grantor Trust
20__-[ ] (the
"Issuer"), pursuant to a Pooling and Servicing Agreement (the
"Pooling
Agreement") to be dated as of [ ], 20__, among the Depositor, USAA
Federal
Savings Bank, a federally charted savings association (the "Bank"),
as seller
and servicer (in such capacities, the "Seller" and the
"Servicer",
respectively), and [ ], as trustee and collateral agent (the
"Trustee"). The
Issuer will issue (i) $[ ] principal balance of its Class A [ ]%
Asset Backed
Certificates (the "Class A Certificates"), and (ii) $[ ] principal
balance of
its Class B [ ]% Asset Backed Certificates (the "Class B
Certificates", and
together with the Class A Certificates, the "Certificates"). The
assets of the
Issuer will include, among other things, a pool of motor vehicle
installment
loans made by the Bank and secured by new and used cars and light
duty trucks
(the "Receivables"), certain monies due or received thereunder on
or after [
], 20__ (the "Cutoff Date"), security interests in the vehicles
financed
thereby, certain accounts, and the proceeds thereof, and the
proceeds from
claims on certain insurance policies. Pursuant to the Pooling
Agreement, the
Receivables will be sold to the Trustee for the benefit of the
Certificateholders. The Servicer will service the Receivables
pursuant to the
Pooling Agreement. Capitalized terms used and not otherwise defined
herein
shall have the meanings given them in the Pooling Agreement.
<PAGE>
At
or prior to the time when sales to purchasers of the Certificates
were
first made to investors by the several Underwriters named in
Schedule I hereto
(the "Underwriters"), which was approximately [ ] a.m. on [ ], 20__
(the "Time
of Sale"), the Depositor had prepared the following information
(collectively,
the "Time of Sale Information"): the Preliminary Prospectus
Supplement dated [
], 20__ to the Prospectus (as defined below) (together, along with
information
referred to under the caption "Static Pool Data" therein regardless
of whether
it is deemed a part of the Registration Statement or Prospectus,
the
"Preliminary Prospectus"). If, subsequent to the Time of Sale and
prior to the
Closing Date (as defined below), such information included an
untrue statement
of material fact or omitted 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, and as a result investors in the
Certificates
may terminate their old "Contracts of Sale" (within the meaning of
Rule 159
under the Securities Act of 1933, as amended (the "Securities
Act")) for any
Certificates and the Underwriters enter into new Contracts of Sale
with
investors in the Certificates, then "Time of Sale Information" will
refer to
the information conveyed to investors at the time of entry into the
first such
new Contract of Sale, in an amended Preliminary Prospectus approved
by the
Depositor and the Representatives that corrects such material
misstatements or
omissions (a "Corrected Prospectus") and "Time of Sale" will refer
to the time
and date on which such new Contracts of Sale were entered into.
This
is to confirm the agreement concerning the purchase of the
Certificates from the Bank by the Underwriters.
1.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEPOSITOR AND
THE
BANK. Each of the Depositor and the Bank (each, a "Representing
Party" and,
collectively, the "Representing Parties") makes the representations
and
warranties set forth below. To the extent that a representation or
warranty
specifically relates to the Depositor, the representation or
warranty solely
with respect to the Depositor is only made by the Depositor and to
the extent
a representation or warranty specifically relates to the Bank,
the
representation or warranty solely with respect to the Bank is only
made by the
Bank.
(a) A registration statement on Form S-3 (No. 333-131356)
relating
to the Certificates has been filed by Depositor with the
Securities
and Exchange Commission (the "Commission") and has become
effective
and is still effective as of the date hereof under the Securities
Act.
The Depositor proposes to file with the Commission pursuant to
Rule
424(b) of the rules and regulations of the Commission under the
Securities Act (the "Rules and Regulations") a prospectus
supplement
dated [ ], 20__ (together with information referred to under
the
caption "Static Pool Data" therein regardless of whether it is
deemed
a part of the Registration Statement or Prospectus, the
"Prospectus
Supplement") to the prospectus dated [ ], 20__, relating to the
Certificates and the method of distribution thereof. Copies of
such
registration statement, any amendment or supplement thereto,
such
prospectus, the Preliminary Prospectus and the Prospectus
Supplement
have been delivered to you. Such registration statement,
including
exhibits thereto, and such prospectus, as amended or supplemented
to
the date hereof, and as further supplemented by the Prospectus
Supplement, are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively. The
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conditions to the use of a registration statement on Form S-3
under
the Securities Act have been satisfied. The Depositor has filed
the
Preliminary Prospectus and it has done so within the applicable
period
of time required under the Securities Act and the Rules and
Regulations.
(b) The Registration Statement, at the time it became
effective,
any post-effective amendment thereto, at the time it became
effective,
and the Prospectus, as of the date of the Prospectus
Supplement,
complied and on the Closing Date will comply in all material
respects
with the applicable requirements of the Securities Act and the
Rules
and Regulations and the Trust Indenture Act of 1939, as amended
(the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder. The Registration Statement, as of the
applicable effective date as to each part of the Registration
Statement pursuant to Rule 430B(f)(2) and any amendment thereto,
did
not include any untrue statement of a material fact and did not
omit
to state any material fact required to be stated therein or
necessary
to make the statements therein not misleading. The Preliminary
Prospectus, as of its date and as of the Time of Sale, did not
contain
an untrue statement of a material fact and did not omit to state
a
material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading. The Prospectus, as of the date of the Prospectus
Supplement and as of the Closing Date, does not and will not
contain
any untrue statement of a material fact and did not and will not
omit
to state any material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made,
not misleading. The representations and warranties in the three
preceding
sentences do not apply to the information contained in or
omitted from the Registration Statement or the Prospectus (or
any
amendment or supplement thereto) in reliance upon and in
conformity
with the Underwriters' Information (as defined herein).
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of
a
material fact or omit to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided that the
Depositor
makes no representation and warranty with respect to any statements
or
omissions made in reliance upon and in conformity with the
Underwriters' Information.
(d) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all
material
respects to the requirements of the Securities Act or the
Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable,
and the rules and regulations thereunder; and any further documents
so
filed and incorporated by reference in the Prospectus, when
such
documents are filed with the Commission, will conform in all
material
respects to the requirements of the Securities Act or the
Exchange
Act, as applicable, and the Rules and Regulations.
(e) The Bank has been duly organized and is validly existing as
a
federally chartered savings association and is a member of the
Federal
Home Loan Bank
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System. The Bank is in good standing with the Office of Thrift
Supervision and has the power and authority (corporate and other)
to
own, lease and operate its properties and to conduct its business
as
such properties are presently owned, leased and operated and as
such
business is presently conducted, and had at all relevant times,
and
now has, the power, authority and legal right to own and sell
the
Receivables.
(f) The Depositor has been duly organized and is validly
existing
as a
limited liability company under the laws of the State of
Delaware, and all filings required at the date hereof under the
Delaware Limited Liability Company Act (6 Del. C. ss.18-101, et
seq.)
(the "LLC Act") with respect to the due formation and valid
existence
of the Depositor as a limited liability company have been made;
and
the Depositor is duly qualified or registered as a foreign
limited
liability company to transact business and is in good standing in
each
jurisdiction in which such qualification or registration is
required,
whether by reason of ownership of property or the conduct of
business,
and the failure to so qualify or register would have a
materially
adverse effect on the Depositor and now has the power, authority
and
legal right to acquire, own and sell the Receivables.
(g) The representations and warranties of the Depositor in
Sections 5.1 and 10.1 of the Pooling Agreement will be true and
correct as of the Closing Date.
(h) The representations and warranties of the Servicer in
Section
11.1 of the Pooling Agreement will be true and correct as of
the
Closing Date.
(i) Each Representing Party has the power and authority to
execute
and deliver this Agreement and to carry out the terms of this
Agreement and the execution, delivery and performance by each
Representing Party of this Agreement has been duly authorized by
such
Representing Party.
(j) This Agreement has been duly executed and delivered by the
Representing Parties.
(k) When authenticated by the Trustee in accordance with the
Pooling Agreement and delivered and paid for pursuant to this
Agreement, the Certificates will be duly issued and entitled to
the
benefits and security afforded by the Pooling Agreement.
(l) The execution, delivery and performance of this Agreement
and
the consummation by each of the Representing Parties of the
transactions contemplated hereby shall not conflict with, result
in
any breach of any of the terms and provisions of or constitute
(with
or without notice or lapse of time) a default under, the
organizational documents of such Representing Party, or any
indenture,
agreement or other instrument to which such Representing Party is
a
party or by which such Representing Party is bound, or violate any
law
or any order, rule or regulation applicable to such Representing
Party
of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality
having
jurisdiction over such Representing Party or any of its
properties;
and, except for the
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registration of the Certificates under the Securities Act and
such
consents, approvals, authorizations, registrations or
qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution
of
the Certificates by the Underwriters, no permit, consent, approval
of,
or declaration to or filing with, any governmental authority is
required in connection with the execution, delivery and performance
of
this Agreement or the consummation of the transactions
contemplated
hereby.
(m) There are no proceedings or investigations pending or, to
the
knowledge of each Representing Party, threatened before any
court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over such
Representing Party or its properties (i) asserting the invalidity
of
this Agreement or any of the Certificates, (ii) seeking to prevent
the
issuance of any of the Certificates or the consummation of any of
the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, if determined adversely to such
Representing Party, is reasonably likely to materially and
adversely
affect the performance by such Representing Party, as applicable,
of
its obligations under, or the validity or enforceability of,
the
Certificates or this Agreement, or (iv) that may adversely affect
the
federal or state income, excise, franchise or similar tax
attributes
of the Certificates.
(n) Each Representing Party (i) is not in violation of its
organizational documents, (ii) is not in default and no event
has
occurred which, with notice or lapse of time or both, would
constitute
such
a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, agreement,
mortgage,
deed of trust or other instrument to which such Representing Party
is
a party or by which such Representing Party is bound or to which
any
of such Representing Party's property or assets is subject and
(iii)
is not in violation in any respect of any law, order, rule or
regulation applicable to such Representing Party or any of such
Representing Party's property of any court or of any federal or
state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its
property,
except, in the case of clauses (ii) and (iii), for any defaults
or
violations that would not, individually or in the aggregate, have
a
material adverse effect on (A) the performance by such
Representing
Party's of its obligations under, or the validity or
enforceability
of, the Certificates, the Basic Documents or this Agreement or (B)
the
condition (financial or otherwise), results of operations, business
or
prospects of such Representing Party.
(o) None of the Issuer, the Depositor or the Bank is or upon
issuance of the Certificates and the application of the
proceeds
therefrom will be an "investment company" or under the "control" of
an
"investment company" within the meaning thereof as defined in
the
Investment Company Act of 1940, as amended.
(p) None of the Depositor, the Bank or anyone acting on its
behalf
has taken any action that would require qualification of the
Pooling
Agreement under the Trust Indenture Act.
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(q) As of the Time of Sale, the Depositor was not and as of the
Closing Date is not, an "ineligible issuer," as defined in Rule
405
under the Securities Act.
2.
PURCHASE BY THE UNDERWRITERS. On the basis of the
representations,
warranties and agreements contained herein, and subject to the
terms and
conditions set forth herein, the Depositor agrees to cause to be
issued by the
Issuer and the Depositor agrees to sell to each of the
Underwriters, severally
and not jointly, and each of the Underwriters, severally and not
jointly,
agrees to purchase from the Depositor, the respective principal
amount of
Certificates set forth opposite the name of such Underwriter in
Schedule 1
hereto at a purchase price equal to (i) with respect to the Class
A
Certificates, [ ] % of the principal amount thereof, and (ii) with
respect to
the Class B Certificates, [ ]%.
The
Depositor shall not be obligated to deliver any of the
Certificates
except upon payment in full for all the Certificates to be
purchased as
provided herein.
Delivery
of and payment for the Certificates shall be made at the office
of Sidley Austin LLP, New York, New York, or at such other place as
shall be
agreed upon by [ ] and [ ], as Representatives of the Several
Underwriters
named herein (the "Representatives"), and the Depositor, at [ ]
a.m., New York
time, on [ ], 20__, or at such other date or time, not later than
five full
business days thereafter, as shall be agreed upon by the
Representatives and
the Depositor (such date and time being referred to herein as the
"Closing
Date"). On the Closing Date, the Depositor shall deliver or cause
to be
delivered to the Representatives for the account of each
Underwriter the
Certificates against payment to or upon the order of the Depositor
of the
purchase price in immediately available funds. Time shall be of the
essence,
and delivery at the time and place specified pursuant to this
Agreement is a
further condition of the obligation of each Underwriter hereunder.
Upon
delivery, each class of Certificates shall be represented by one or
more
global certificates registered in the name of Cede & Co., as
nominee of The
Depository Trust Company ("DTC"). The interest of the beneficial
owners of the
Certificates will be represented by book-entries on the records of
DTC and
participating members thereof. Definitive certificates representing
the
Certificates will be available only under limited
circumstances.
3. FURTHER
AGREEMENTS OF THE DEPOSITOR AND THE BANK. (a) The Depositor
agrees with each of the several Underwriters:
(i) To file the Prospectus Supplement with the Commission
pursuant to and in accordance with Rule 424(b) of the Rules and
Regulations within the time period prescribed by such rule and
provide evidence satisfactory to the Representatives of such
timely filing.
(ii) During any period in which a prospectus relating to the
Certificates is required to be delivered under the Securities
Act:
to advise the Representatives promptly of any proposal to amend
the Registration Statement or amend or supplement the
Prospectus
and not to effect any such amendment or supplementation without
the consent of the Representatives; to advise the
Representatives
promptly of (A) the effectiveness of any post-effective
amendment
to the Registration Statement, (B) any request by the
Commission
for
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any amendment of the Registration Statement or the Prospectus
or
for any additional information, (C) the issuance by the
Commission
of any stop order suspending the effectiveness of the
Registration
Statement or the initiation or threatening of any proceedings
for
that purpose, (D) the issuance by the Commission of any order
preventing or suspending the use of any prospectus relating to
the
Certificates or the initiation or threatening of any
proceedings
for that purpose and (E) the receipt by the Depositor of any
notification with respect to the suspension of the
qualification
of the Certificates for sale in any jurisdiction or the
initiation
or threatening of any proceeding for such purpose; and to use
its
reasonable best efforts to prevent the issuance of any such
stop
order or of any order preventing or suspending the use of any
prospectus relating to the Certificates or suspending any such
qualification and, if any such stop order or order of
suspension
is issued, to obtain the lifting thereof at the earliest
possible
time.
(iii) If, during any period in which a prospectus relating to
the Certificates is required to be delivered under the
Securities
Act, any event shall have occurred as a result of which the
Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any
material
fact necessary in order to make the statements therein, in the
light of the circumstances, when such Prospectus is delivered to
a
purchaser, not misleading, or if for any other reason it shall
be
necessary at such time to amend or supplement the Prospectus in
order to
comply with the Securities Act, to notify the
Representatives immediately thereof, and to promptly prepare
and
file with the Commission, subject to paragraph (b) of this
Section
4, an amendment or a supplement to the Prospectus such that the
statements in the Prospectus, as so amended or supplemented
will
not, in the light of the circumstances, when the Prospectus is
delivered to a purchaser, be misleading, or such that the
Prospectus will comply with the Securities Act.
(iv) To furnish promptly to each of the Representatives and
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith; and during the period
described in paragraph (a)(iii) of this Section 4, to deliver
promptly without
charge to the Representatives such number of the
following documents as the Representatives may from time to
time
reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this
Agreement and each of the Basic Documents) and (B) any
preliminary
prospectus supplement, including the Preliminary Prospectus,
the
Prospectus and any amendment or supplement thereto.
(v) During any period in which a prospectus relating to the
Certificates is required to be delivered under the Securities
Act,
to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to
the
Prospectus that may, in the judgment of the Depositor or
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the Representatives, be required by the Securities Act or
requested by the Commission.
(vi) For so long as any of the Certificates are outstanding or
until such time as the Underwriters shall cease to maintain a
secondary market in the Certificates, to furnish to the
Underwriters (A) copies of all materials furnished by the
Issuer
to the holders of the Certificates and all reports and
financial
statements furnished by the Issuer to the Commission pursuant
to
the Exchange Act or any rule or regulation of the Commission
thereunder and (B) from time to time, such other information
concerning the Depositor filed with any government or
regulatory
authority or national securities exchange which is otherwise
publicly available as the Representatives may reasonably
request
and such other information concerning the Issuer as the
Representatives may reasonably request.
(vii) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the
Certificates
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Certificates;
provided, that in connection therewith the Depositor shall not
be
required to qualify to do business or to file a general consent
to
service of process in any jurisdiction.
(viii) During the period from the date of the Prospectus to
and including the business day after the Closing Date, to not
offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for,
or
announce any offering of, any securities collateralized by, or
evidencing an ownership interest in, a pool of installment
loans
for new and used cars and light duty trucks without the prior
written consent of the Representatives.
(ix) For a period from the date of this Agreement until the
retirement of the Certificates to deliver to you the annual
statement of compliance and the annual independent certified
public accountants' report furnished to the Trustee, pursuant
to
the Pooling Agreement, as soon as such statements and reports
are
furnished to the Trustee.
(x) To cause the Trust to make generally available to
Certificate-holders and to the Underwriters as soon as
practicable
an earnings statement covering a period of at least twelve
months
beginning with the first fiscal quarter of the Trust occurring
after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Act and
Rule
158 of the Commission promulgated thereunder.
(xi) To file with the Commission the final terms of the
Certificates pursuant to Rule 433(d)(5) of the Securities Act.
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(b) The Depositor and the Bank agree with each of the several
Underwriters that to the extent, if any, that the ratings
provided
with respect to the Certificates by [Moody's Investors Service,
Inc.
("Moody's")] and [Standard & Poor's Ratings Services, a
division of
The McGraw-Hill Companies, Inc. ("S&P")] are conditional upon
the
furnishing of documents or the taking of any other actions by the
Bank
or the Depositor, to furnish such documents and take any such
other
actions.
4.
WRITTEN
COMMUNICATIONS.
(a) It is understood that, subject to the terms and conditions
hereof, the Underwriters propose to offer the Certificates for sale
to
the public as set forth in the Prospectus.
(b) The following terms have the specified meanings for purposes
of
this
Agreement:
(i) "Free Writing Prospectus" means and includes any
information relating to the Certificates disseminated by the
Depositor or any Underwriter that constitutes a "free writing
prospectus" within the meaning of Rule 405 under the Securities
Act.
(ii) "Issuer Information" means (1) the information contained
in any Underwriter Free Writing Prospectus which information is
also included in the Preliminary Prospectus (other than
Underwriter Information) and (2) information in the Preliminary
Prospectus that is used to calculate or create any Derived
Information.
(iii) "Derived Information" means such written information
regarding the Certificates as is disseminated by any
Underwriter
to a potential investor, which information is neither (A)
Issuer
Information nor (B) contained in (1) the Registration
Statement,
the Preliminary Prospectus, the Prospectus Supplement, the
Prospectus or any amendment or supplement to any of them,
taking
into account information incorporated therein by reference
(other
than information incorporated by reference from any information
regarding the Certificates that is disseminated by any
Underwriter
to a potential investor) or (2) any computer tape in respect of
the Certificates or the related receivables furnished by the
Depositor to any Underwriter.
(c) The Depositor will not disseminate to any potential
investor
any information relating to the Certificates that constitutes a
"written communication" within the meaning of Rule 405 under
the
Securities Act, other than the Time of Sale Information and the
Prospectus, unless the Depositor has obtained the prior consent of
the
Representatives (which consent will not be unreasonably
withheld).
(d) Neither the Depositor nor any Underwriter shall disseminate
or
file with the Commission any information relating to the
Certificates
in reliance on Rule 167 or 426 under the Securities Act, nor shall
the
Depositor or any Underwriter disseminate any Underwriter Free
Writing
Prospectus (as defined below) "in a
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manner reasonably designed to lead to its broad unrestricted
dissemination" within the meaning of Rule 433(d) under the
Securities
Act.
(e) Each Underwriter Free Writing Prospectus shall bear the
following legend, or a substantially similar legend that complies
with
Rule 433 under the Securities Act:
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the
depositor has filed with the SEC for more complete information
about the depositor, the issuing trust, and this offering. You
may
get these documents for free by visiting EDGAR on the SEC Web
site
at www.sec.gov. Alternatively, the depositor, any underwriter
or
any dealer participating in the offering will arrange to send
you
the prospectus if you request it by calling toll-free
1-[_________].
(f) In the event any Representing Party becomes aware that, as
of
the Time of Sale, any Time of Sale Information contains or
contained
any untrue statement of material fact or omits or omitted to state
a
material fact necessary in order to make the statements
contained
therein (when read in conjunction with all Time of Sale
Information)
in light of the circumstances under which they were made, not
misleading (a "Defective Prospectus"), such Representing Party
shall
promptly notify the Representatives of such untrue statement or
omission no later than one business day after discovery and the
Depositor shall, if requested by the Representatives, prepare
and
deliver to the Underwriters a Corrected Prospectus.
(g) Each Underwriter represents, warrants, covenants and agrees
with the Depositor that:
(i) Other than the Preliminary Prospectus and the Prospectus,
it has not made, used, prepared, authorized, approved or
referred
to and will not prepare, make, use, authorize, approve or refer
to
any "written communication" (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or
solicitation
of an offer to buy the Certificates, including but not limited
to
any "ABS informational and computational materials" as defined
in
Item 1101(a) of Regulation AB under the Securities Act;
[provided,
however, that (i) each Underwriter may prepare and convey one
or
more "written communications" (as defined in Rule 405 under the
Securities Act) containing no more than the following: (1)
information included in the Preliminary Prospectus with the
consent of the Depositor (except as provided in clauses (2)
through (4) below), (2) information relating to the class,
size,
rating, price, CUSIP
