Exhibit 1.1
S UPERIOR W HOLESALE I NVENTORY F INANCING T RUST [•]
[$ [•] Class A Floating Rate Asset
Backed Term Notes, Series [•]]
[$ [•] Class B Floating Rate Asset Backed
Term Notes, Series [•]]
[ $ [•] Class C
Floating Rate Asset Backed Term Notes, Series
[•]]
W HOLESALE A UTO R ECEIVABLES C ORPORATION
(D EPOSITOR )
G ENERAL M OTORS A CCEPTANCE C ORPORATION
(S ERVICER )
UNDERWRITING
AGREEMENT
[•], 20[•]
[•]
As Representatives of the
several Underwriters on Schedule
1
Ladies and Gentlemen:
1. Introductory . Wholesale
Auto Receivables Corporation, a Delaware corporation (the “
Depositor ”), proposes to sell (i) [$[•]
aggregate principal balance of Class A Floating Rate Asset
Backed Term Notes, Series [•] (the “ Class A Term
Notes ”),] (ii) [$[•] Class B Floating Rate
Asset Backed Term Notes, Series [•] (the “ Class B
Term Notes ”)] and (iii) [$[•] Class C
Floating Rate Asset Backed Term Notes], Series [•] (the
“ Class C Term Notes ” and, together with the
Class A Term Notes and the Class B Term Notes, the
“[•] Offered Notes ”) of Superior
Wholesale Inventory Financing Trust [•] (the
“Trust”). The Trust will also issue, concurrently with
the [•] Offered Notes, (x) [$[•] maximum aggregate
principal balance Class A Floating Rate Asset Backed Revolving
Note, Series [•]-RN[•]] (the “[•]
-RN [•] Revolving Note ” and, together
with any other revolving note subsequently issued by the Trust, the
“ Revolving Notes ”), (y) [$[•]
aggregate principal balance of Class D Floating Rate Asset Backed
Term Notes, Series [•]] (the “ Class D Term
Notes ” and, together with the [•] Offered Notes
and the Revolving Notes, the “ Notes ”), and
(z) [$[•] aggregate certificate balance Floating Rate
Asset Backed Certificates, Class [•] (the “[•]
Certificates ”)]. [Neither the Revolving Notes, the
Class D Term Notes nor the [•] Certificates are being
publicly offered. The Revolving Notes will be sold in a private
placement, while the Depositor will initially retain the Class D
Term Notes and the [•] Certificates.]
The assets of the Trust will
include, among other things, a pool of wholesale receivables (the
“ Receivables ”) generated from time to time in
a portfolio of revolving financing
arrangements with dealers to finance inventories
of new and used motor vehicles and collections on the Receivables,
such Receivables to be transferred to the Trust by the Depositor
and serviced by General Motors Acceptance Corporation (“
GMAC ” or the “ Servicer ”). The
Notes will be issued pursuant to an indenture, to be dated as of
the Closing Date (the “ Indenture ”), between
the Trust and [•], as trustee (the “ Indenture
Trustee ”), and the [•] Certificates will be issued
pursuant to a trust agreement, to be dated as of the Closing Date
(the “ Trust Agreement ”), between the Depositor
and [•], as owner trustee, acting thereunder not in its
individual capacity but solely as trustee of the Trust (the “
Owner Trustee ”). The Trust will be formed pursuant to
the Trust Agreement. GMAC will serve as the initial custodian of
the Receivable Files (as defined in a custodian agreement, to be
dated as of the Closing Date (the “ Custodian
Agreement ”), between the Servicer and the Depositor)
pursuant to the Custodian Agreement, and a trust sale and servicing
agreement, to be dated as of the Closing Date (the “ Trust
Sale and Servicing Agreement ”), between the Depositor,
the Servicer and the Trust.
To the extent there are no
additional Underwriters listed on Schedule 1 other than you,
the term “ Representatives ” as used herein
shall mean you, as Underwriters, and the terms “
Representatives ” and “ Underwriters
” shall mean either the singular or plural as the context
requires. Any reference herein to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 15
hereof.
2. Representations and Warranties
of the Depositor . The Depositor represents and warrants to,
and agrees with, the Underwriters that:
(a) The Depositor meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission a registration statement
(No. 333-131524), including a prospectus, on Form S-3 pursuant
to Rule 415 under the Act on February 3, 2006, as amended by
Amendment No. 1 on March [16], 2006, for the registration
under the Act of asset backed securities (issuable in series),
including the [•] Offered Notes, which registration statement
has become effective, and a copy of which, as amended to the date
hereof, has heretofore been delivered to the Underwriters. The
Depositor has filed or will file with the Commission, pursuant to
Rule 424(b), one or more Preliminary Prospectuses. The Depositor
will file with the Commission pursuant to Rule 424(b) a Final
Prospectus relating to the [•] Term Notes and the method of
distribution thereof.
(b) On the Effective Date, the
Registration Statement complied, and when the Final Prospectus is
first filed in accordance with Rule 424(b), the Final Prospectus
will comply, in all material respects with the applicable
requirements of the Act; on the
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Effective Date, the Registration
Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Depositor makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Depositor by or on behalf
of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information so furnished by or on behalf of any
Underwriters consists of the information described as such in
Section 7 hereof. As of the Closing Date, the
representations and warranties of the Depositor in a pooling and
servicing agreement, to be dated as of the Closing Date (the
“ Pooling and Servicing Agreement ”), between
GMAC and the Depositor, the Trust Sale and Servicing Agreement and
the Trust Agreement will be true and correct in all material
respects.
(c) As of the Applicable Time, the
Disclosure Package did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package in reliance upon and in conformity with written information
furnished to the Depositor by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information so furnished by any
Underwriter consists of the information described as such in
Section 7 hereof.
(d) At the earliest time after the
filing of the Registration Statement that the Depositor or another
offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the [•] Offered Notes, the
Depositor was not an “ineligible issuer,” as defined in
Rule 405.
(e) Each Issuer Free Writing
Prospectus, as of its issue date, does not and will not include any
information that conflicts or will conflict with the information
then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurs an event or development as a result of which such Issuer
Free Writing Prospectus would conflict with the information then
contained in the Registration Statement or would include an untrue
statement of a material fact or would 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,
(i) the Depositor has or will promptly notify the Underwriters
and (ii) the Depositor has or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Depositor by any
Underwriter
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through the Representatives
specifically for use therein, it being understood and agreed that
the only such information so furnished by any Underwriter consists
of the information described as such in Section 7
hereof.
(f) This Agreement has been duly
authorized, executed and delivered by the Depositor.
3. Purchase, Sale and Delivery of
the [•] Offered Notes . Each Underwriter executing this
Agreement on its own behalf and as a Representative of the several
Underwriters hereby represents and warrants to the Depositor that
it has been authorized by the other Underwriters to execute this
Agreement on their behalf. On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to sell
to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Depositor, the respective principal
balance of [•] Offered Notes set forth opposite the name of
such Underwriter on Schedule 1 . Each of the [•]
Offered Notes are to be purchased at the purchase price set forth
on Schedule 2 , plus accrued interest to the extent set
forth on such Schedule 2 .
The Depositor will deliver the
[•] Offered Notes to the Representatives for the account of
the Underwriters against payment of the purchase price in
immediately available funds, at the office of Kirkland &
Ellis LLP, 200 East Randolph Drive, Chicago, Illinois 60601, on
[•] at [•]. (Chicago time), or at such other time and
place not later than seven full business days thereafter as the
Representatives and the Depositor determine, such time being herein
referred to as the “ Closing Date .” The
[•] Offered Notes so to be delivered will be initially
represented by notes registered in the name of Cede & Co.,
the nominee of The Depository Trust Company (“ DTC
”). The interests of beneficial owners of the [•]
Offered Notes will be represented by book entries on the records of
DTC and participating members thereof. Definitive notes will be
available only under limited circumstances.
4. Offering by Underwriters;
Representations and Covenants of the Underwriters .
(a) It is understood that the
Underwriters propose to offer the [•] Offered Notes for sale
to the public (which may include selected dealers) as set forth in
the Final Prospectus. Each Underwriter agrees that all such offers
and sales by such Underwriter will be made in compliance with all
applicable laws and regulations, including all laws and regulations
with respect to pricing of the [•] Offered Notes and
disclosure of underwriting commissions from the Depositor or any
other person.
(b) The Underwriters have not and
will not provide any Computational Materials, ABS Term Sheets,
Structural Term Sheets or Collateral Term Sheets to any prospective
investors in connection with the offering and sale of the [•]
Offered Notes. For the purposes hereof, “ Computational
Materials ,” “ ABS Term Sheets ,”
“ Structural Term Sheets ” and “
Collateral Term Sheets ” as used herein shall have the
meanings given such terms in the No-Action Letter of May 20,
1994 issued by the Commission to Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated and
Kidder Structured Asset Corporation, 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, and the No-Action Letter of February 17, 1995 issued by
the Commission to the Public Securities Association (together, the
“ No-Action Letters ”).
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(c) Each Underwriter represents, as
of the Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the [•] Offered Notes that is
required to be filed with the Commission in accordance with the Act
or any Free Writing Prospectus other than those approved by the
Depositor.
(d) Each Underwriter that uses the
Internet or other electronic means to offer or sell the [•]
Offered Notes severally represents that it has in place, and
covenants that it shall maintain, internal controls and procedures
which it reasonably believes to be sufficient to ensure compliance
in all material respects with all applicable legal requirements
under the Act and applicable procedures, if any, worked out with
the staff of the SEC relating to the use of the Internet or
relating to computerized or electronic means of delivery to
prospective investors of the Prospectus and any related
“road-show” materials, in each case in connection with
the offering of the [•] Offered Notes. Each Underwriter
severally represents that it has not established or used web site
pages on the Internet containing information for prospective
investors in connection with the offering of the [•] Offered
Notes.
5. Covenants of the Depositor
. The Depositor covenants and agrees with the Underwriters
that:
(a) The Depositor has filed or will
file each Preliminary Prospectus pursuant to and in accordance with
Rule 424(b) not later than the second business day following
the date it is first used.
(b) The Depositor will prepare and
file the Final Prospectus pursuant to and in accordance with
Rule 424(b) not later than the second business day following
the date it is first used.
(c) The Depositor shall advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Final
Prospectus and shall consult with them and their counsel with
respect to any comments they may have on any such proposed
amendment or supplement; provided , however , that no
such advice or consultation shall be necessary for Exchange Act
reports filed by the Depositor in the ordinary course that contain
opinions, the Basic Documents or related agreements and monthly
distribution reports.
(d) If, at any time when a
prospectus relating to the [•] Offered Notes is (or but for
the exemption in Rule 172 would be required to be) delivered under
the Act in connection with sales by any Underwriter or dealer, any
event occurs as a result of which the Final Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any
time to amend the Registration Statement or supplement the
Final
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Prospectus to comply with the Act,
the Depositor promptly shall (1) notify the Representatives of
such event and (2) prepare and file with the Commission,
subject to paragraph (c) of this Section 5
, an amendment or supplement which will correct such statement or
omission or effect such compliance.
(e) The Depositor represents and
agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter, severally and not jointly,
represents and agrees with the Depositor that, unless it obtains
the prior consent of the Depositor, it has not made and will not
make any offer relating to the [•] Offered Notes that would
constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a Free Writing Prospectus; provided ,
however , that the prior consent of the parties hereto shall
be deemed to have been given with respect to the Free Writing
Prospectuses included in Schedule 3 hereto. Any such Free
Writing Prospectus consented to by the Depositor and the
Representatives or the Depositor is hereinafter referred to as a
“Permitted Free Writing Prospectus.”
(f) The Depositor shall take such
action in order to exempt the [•] Offered Notes from the
qualification for offer and sale under the securities or
“Blue Sky” laws of such jurisdictions as the
Representatives shall reasonably request and to pay all reasonable
expenses (including reasonable fees and disbursements of counsel)
in connection with such exemption and in connection with the
determination of the legality of the [•] Offered Notes for
purchase under the laws of such jurisdictions as the
Representatives may designate. Thereafter, until all of the
[•] Offered Notes have been retired, the Depositor shall
arrange for the filing and making of, and shall pay all fees
applicable to, such statements and reports and renewals of
registration necessary in order to continue to exempt the [•]
Offered Notes for secondary market transactions in the various
jurisdictions in which the [•] Offered Notes were originally
exempted for sale.
(g) For a period from the date of
this Agreement until the retirement of the [•] Offered Notes,
or until such time as no Underwriter shall continue to maintain a
secondary market in the [•] Offered Notes, whichever first
occurs, the Depositor will deliver or cause t
