Exhibit 1.1
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EXECUTION COPY
USAA AUTO OWNER TRUST 2006-4
Asset Backed Notes
USAA FEDERAL SAVINGS BANK
(SELLER AND SERVICER)
USAA ACCEPTANCE, LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
November 14, 2006
Barclays Capital Inc.
200 Park Avenue
5th Floor
New York, New York 10166
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
As Joint Global Coordinators
and Representatives of the
Several Underwriters named
on Schedule I hereto
Dear Sirs:
USAA
Acceptance, LLC, a Delaware limited liability company (the
"Depositor"), proposes to form a Delaware statutory trust, USAA
Auto Owner
Trust 2006-4 (the "Issuer"), pursuant to an amended and restated
trust
agreement to be dated as of November 21, 2006 (the "Trust
Agreement"), between
the Depositor and Wells Fargo Delaware Trust Company, as owner
trustee (the
"Owner Trustee"), which will issue (i) $433,000,000 principal
amount of its
Class A-1 5.34% Asset Backed Notes (the "Class A-1 Notes"), (ii)
$474,000,000
principal amount of its Class A-2 5.16% Asset Backed Notes (the
"Class A-2
Notes"), (iii) $452,000,000 principal amount of its Class A-3 5.01%
Asset
Backed Notes (the "Class A-3 Notes"), (iv) $262,486,000 principal
amount of
its Class A-4 4.98% Asset Backed Notes (the "Class A-4 Notes" and,
together
with the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, the
"Class A Notes") and (v) $45,852,019 principal amount of its Class
B 5.26%
Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes,
the "Notes") pursuant to an indenture to be dated as of November
21, 2006 (the
"Indenture"), between the Issuer and The
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Bank of New York, as indenture trustee (the "Indenture Trustee").
The Issuer
will also issue a certificate (the "Certificate" and, together with
the Notes,
the "Securities"). The assets of the Issuer will include, among
other things,
a pool of motor vehicle installment loans made by USAA Federal
Savings Bank, a
federally chartered savings association (the "Bank"), and secured
by new and
used cars and light duty trucks (the "Receivables"), certain monies
due or
received thereunder on or after November 1, 2006, security
interests in the
vehicles financed thereby, certain accounts, and the proceeds
thereof, and the
proceeds from claims on certain insurance policies. The Receivables
will be
transferred to the Depositor by the Bank, as seller (in such
capacity, the
"Seller"), pursuant to a receivables purchase agreement to be dated
as of
November 1, 2006 (the "Receivables Purchase Agreement"), between
the Seller
and the Depositor, as purchaser (the "Purchaser"), and the
Depositor will
transfer the Receivables to the Issuer in exchange for the
Securities,
pursuant to a sale and servicing agreement to be dated as of
November 1, 2006
(the "Sale and Servicing Agreement"), among the Depositor, the
Bank, as Seller
and servicer (in such capacity, the "Servicer"), and the Issuer.
The Servicer
will service the Receivables pursuant to the Sale and Servicing
Agreement.
Capitalized terms used and not otherwise defined herein shall have
the
meanings ascribed thereto in the Sale and Servicing Agreement.
At or
prior to the time when sales to purchasers of the Notes were
first
made to investors by the several Underwriters named in Schedule I
hereto (the
"Underwriters"), which was approximately 3:10 p.m. on November 14,
2006 (the
"Time of Sale"), the Depositor had prepared the following
information
(collectively, the "Time of Sale Information"): the Preliminary
Prospectus
Supplement dated November 13, 2006 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 Notes 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 Notes and the Underwriters enter
into new
Contracts of Sale with investors in the Notes, 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 Notes
from the Depositor 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.
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(a) A registration statement on Form S-3 (No. 333-131356)
relating
to the
Notes 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 November
14,
2006
(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 November 13, 2006, relating to the Notes 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 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 (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee
under
the Trust
Indenture Act or (ii) that 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). The Indenture has
been
qualified
under the Trust Indenture Act.
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(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 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 Bank in Section
3.02
of the
Receivables Purchase Agreement will be true and correct as of
the
Closing
Date.
(h) The representations and warranties of the Depositor in
Section
5.1 of the
Sale and Servicing Agreement will be true and correct as of
the
Closing Date.
(i) The representations and warranties of the Bank in Section
6.1
of the
Sale and Servicing Agreement will be true and correct as of the
Closing
Date.
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(j) 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.
(k) This Agreement has been duly executed and delivered by the
Representing Parties.
(l) When authenticated by the Owner Trustee in accordance with
the
Trust
Agreement, the Certificate will be duly issued and entitled to
the
benefits
and security afforded by the Trust Agreement and the Sale and
Servicing
Agreement.
(m) When authenticated by the Indenture Trustee in accordance
with
the
Indenture and delivered and paid for pursuant to this Agreement,
the
Notes will
be duly issued and constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance
with their
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws
affecting
the
enforcement of creditors' rights in general or the rights of
creditors
of federal savings associations and by general principles of
equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(n) 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 registration of the Notes under
the
Securities Act, the qualification of the Indenture under the
Trust
Indenture
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 Notes 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.
(o) 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
Securities, (ii) seeking to prevent the issuance of any of the
Securities
or the consummation of any of the transactions contemplated
by this
Agreement, (iii) seeking any determination or ruling that, if
determined
adversely to such
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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
Securities
or this
Agreement, or (iv) that may adversely affect the federal or
state
income, excise, franchise or similar tax attributes of the
Securities.
(p) 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 Securities, the Basic
Documents
or this Agreement or (B) the condition (financial or
otherwise), results of operations, business or prospects of
such
Representing Party.
(q) None of the Issuer, the Depositor or the Bank is or upon
issuance
of the Notes 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.
(r) None of the Depositor, the Bank or anyone acting on its
behalf
has taken
any action that would require qualification of the Trust
Agreement
under the Trust Indenture Act.
(s) 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
Notes 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-1 Notes,
99.900000%
of the principal amount thereof, (ii) with respect to the Class A-2
Notes,
99.851590% of the principal amount thereof, (iii) with respect to
the Class
A-3 Notes, 99.801008% of the principal amount thereof, (iv) with
respect to
the Class A-4 Notes, 99.729691% of the principal amount thereof and
(v) with
respect to the Class B Notes, 99.693735% of the principal amount
thereof.
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The
Depositor shall not be obligated to deliver any of the Notes
except
upon payment in full for all the Notes to be purchased as provided
herein.
Delivery
of and payment for the Notes 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 Barclays Capital Inc. and Deutsche Bank Securities
Inc., as
Representatives of the Several Underwriters named herein (the
"Representatives"), and the Depositor, at 9:00 A.M., New York time,
on
November 21, 2006, 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 Notes
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
Notes 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 Notes will be
represented by
book-entries on the records of DTC and participating members
thereof.
Definitive certificates representing the Notes 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
Notes 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 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 Notes 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 Notes 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 Notes or suspending any such
qualification and, if any such stop order or order of
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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 Notes 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 3, 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 3, 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
Notes 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 the
Representatives, be required by the Securities Act or requested
by
the Commission.
(vi) For so long as any of the Notes are outstanding or
until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, to furnish to the Underwriters
(A)
copies of all materials furnished by the Issuer to the holders
of
the Notes 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
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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 Notes 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 Notes; 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 Notes, to deliver to you the annual statement
of
compliance and the annual independent certified public
accountants' report furnished to the Owner Trustee and the
Indenture Trustee, pursuant to the Sale and Servicing
Agreement,
as soon as such statements and reports are furnished to the
Owner
Trustee and the Indenture Trustee, respectively.
(x) To cause the Trust to make generally available to
Noteholders 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
Notes pursuant to Rule 433(d)(5) of the Securities Act in the
form
attached hereto as Exhibit A (the "Final Term Sheet").
(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 Notes 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.
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(a) It is understood that, subject to the terms and conditions
hereof,
the Underwriters propose to offer the Notes 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 Notes 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), (2) information in the
Preliminary
Prospectus, other than any Pre-pricing Information, that is
used
to calculate or create any Derived Information, (3) any
computer
tape in respect of the Notes or the related receivables
furnished
by the Depositor to any Underwriter and (4) information
contained
in the Final Term Sheet.
(iii) "Derived Information" means such written information
regarding the Notes as is disseminated by any Underwriter to a
potential investor, which information is not any of (A) Issuer
Information, (B) Pre-pricing Information, or (C) contained in
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 Notes that is disseminated by any
Underwriter to a potential investor).
(iv) "Pre-pricing Information" means the information in a
Underwriter Free Writing Prospectus consisting of (A) the
status
of the subscriptions for each class of Notes (both for the
issuance as a whole and for each Underwriter's specific
retention)
and (B) expected pricing parameters of the Notes.
(c) The Depositor will not disseminate to any potential
investor
any
information relating to the Notes that constitutes a "written
communication" within the meaning of Rule 405 under the Securities
Act,
other than
the Time of Sale Information, the Prospectus and the Final
Term
Sheet, 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 Notes 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 manner reasonably designed to lead
to its
broad unrestricted dissemination" within the meaning of Rule
433(d)
under the Securities Act.
10
<PAGE>
(e) Each 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 Time of Sale Information and the
Prospectus (and, to the extent referenced in each of the Time
of
Sale Information and the Prospectus, the Registration
Statement),
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 Notes, 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, CUSIPS, coupon, yield, spread, benchmark, status
and/or legal maturity date of the Notes, the weighted average
life, expected final payment date, the trade date and payment
window of one or more classes of Notes, (3) the eligibility of
the
Notes to be purchased by ERISA plans and (4) a column or other
entry showing the status of the subscriptions for the Notes
(both
for the issuance as a whole and for e
