DRIVE AUTO RECEIVABLES
LLC
Drive Auto Receivables Trust 20[ ]
– [ ]
[
]
[
]
as Representatives of the several Underwriters (the “
Representatives ”)
c/o [
]
[
]
Drive Auto
Receivables LLC, a Delaware limited liability company (the “
Seller ”), Drive Auto Receivables Trust 20[ ]-[ ], a
Delaware statutory trust (the “ Issuer ”) and
Drive Consumer USA Inc., an Illinois corporation (“ Drive
Consumer ”), confirm their agreement with [List
underwriters] (collectively, the “ Underwriters
”) as follows:
The Seller
proposes to sell to the Underwriters the notes of the classes
designated in the applicable Terms Agreement (the
“Notes”). The Notes are to be issued by the Issuer
under the Indenture (the “ Indenture ”), dated
as of the Closing Date, between the Issuer and
[ ], as
indenture trustee (the “ Indenture Trustee
”).
The Notes will be
collateralized by the Trust Estate (as defined below). The assets
of the Issuer (the “ Trust Estate ”) consist of
all money, accounts, chattel paper, general intangibles, goods,
instruments, investment property and other property of the Issuer,
including without limitation: (i) all right, title, and
interest of the Seller in and to the Contracts acquired by the
Issuer under the Sale and Servicing Agreement, dated as of the
Closing Date, by and among the Seller, the Issuer, Drive Consumer
and the Indenture Trustee (the “Sale and Servicing
Agreement”) and all monies due thereunder after the
applicable Cut-Off Date; (ii) the interest of the Seller in
the security interests in the Financed Vehicles granted by Obligors
pursuant to the Contracts and any accessions thereto;
(iii) the interest of the Seller in any proceeds from claims
on any physical damage, credit life or disability, or other
insurance policies maintained by the Obligors thereon covering the
Financed Vehicles or the Obligors relating to the Contracts
and
any proceeds
from the liquidation of Contracts or the related Financed Vehicles;
(iv) all right, title and interest (but not the obligations)
of the Seller in and to the Contribution Agreement and the Sale and
Servicing Agreement, insofar as such right, title and interest
relates to the Contracts, the related Contract Files or the related
Financed Vehicles, including the right of the Seller to cause the
Originator, as applicable, to repurchase the Contracts from the
Seller under certain circumstances; (v) the interest of the
Seller in any Dealer Recourse relating to the Contracts;
(vi) the interest of the Seller in certain rebates of premiums
and other amounts relating to insurance policies and other items
financed under the Contracts in effect after the applicable Cut-Off
Date; (vii) the Trust Accounts and all funds on deposit from
time to time and all rights of the Seller therein; (viii) the
related Contract Files; and (ix) the proceeds of any and all
of the foregoing.
The Contracts and
the Related Security will be conveyed to the Seller by Drive
Consumer pursuant to the Contribution Agreement, dated as of the
Closing Date, between the Seller and Drive Consumer (the “
Contribution Agreement ”) and will be conveyed to the
Issuer by the Seller pursuant to the Sale and Servicing
Agreement.
[On the Closing
Date, the Issuer will enter into an interest rate swap agreement
with the Initial Swap Counterparty to hedge the floating interest
rate on the Class [ ] Notes (the “ Swap Agreement
”).]
[On the Closing
Date the Note Insurer will issue a note guaranty insurance policy
(the “ Note Insurance Policy ”) guaranteeing
certain payments due in respect of the [Class A]
Notes.]
[On the Closing
Date, the Issuer will enter into a Letter of Credit Reimbursement
Agreement with the Letter of Credit Bank and the Letter of Credit
Bank will issue the Reserve Account Letter of Credit.]
The terms of the
Notes are set forth in the Registration Statement (as defined
below) and the related Prospectus (as defined below), as
supplemented by a Prospectus Supplement (as defined
below).
Capitalized terms
used herein but not defined herein or in the Terms Agreement (as
defined below) shall have the meanings given such terms in
Appendix A to the Sale and Servicing
Agreement.
The Seller has
prepared and filed with the Securities and Exchange Commission (the
“ Commission ”) in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
“ Act ”), a shelf registration statement on Form
S-3 (having the registration number 333-[ ]), including a form of
prospectus, relating to the Notes. The registration statement [as
amended] has been declared effective by the Commission not more
than three years prior to the date hereof. If any post-effective
amendment has been filed with respect thereto prior to the
execution and delivery of the applicable Terms Agreement, the most
recent such amendment has been declared effective by the
Commission. Such registration statement, as amended at the time of
effectiveness, including all material incorporated by reference
therein and including all information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430B under the Act, is referred to in this Agreement as
the “ Registration Statement .” The Seller
proposes to file
with the
Commission pursuant to Rule 424(b) under the Act
(“Rule 424(b)”) a supplement (such supplement,
together with any amendment thereof or supplement thereto, the
“ Prospectus Supplement ”) to the prospectus
included in the Registration Statement (such prospectus, in the
form it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule
424(b) is hereinafter referred to as the “ Basic
Prospectus ”) relating to the Notes and the method of
distribution thereof. The Basic Prospectus and the Prospectus
Supplement is hereinafter referred to as the “
Prospectus .”
Prior to the date
and time of the first Contract of Sale (as defined below) for the
Notes designated in the Terms Agreement (the “ Time of
Sale ”), the Seller had prepared a preliminary
prospectus, dated [
]
(subject to completion). As used herein, “ Preliminary
Prospectus ” means, with respect to any date or time
referred to herein, the most recent preliminary Prospectus (as such
preliminary Prospectus may be amended or supplemented), which has
been prepared and delivered by the Seller to the Underwriters in
accordance with the provisions hereof.
Pursuant to this
Agreement and the Terms Agreement, among Drive Consumer, the Seller
and the Representatives, a form of which is attached hereto as
Exhibit A (the “ Terms Agreement ”), which
incorporates by reference this Underwriting Agreement (the “
Agreement ,” which shall include the applicable Terms
Agreement if the context so requires), and subject to the terms
hereof and thereof, the Seller agrees to sell to the Underwriters
named in such Terms Agreement, for whom you are acting as the
Representatives the Notes identified in such Terms
Agreement.
Section 2. Representations and
Warranties of the Seller and Drive Consumer.
Each of the Seller
and Drive Consumer severally represents and warrants (as to itself)
to the Underwriters, as of the date hereof (unless specified
otherwise) and as of the Closing Date, as follows:
(a)
(i) The Seller has prepared and filed the Registration
Statement with the Commission in accordance with the provisions of
the Act, including a form of prospectus, relating to the Notes. The
Registration Statement as amended has been declared effective by
the Commission. The conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under
the Act, have been satisfied with respect to the Registration
Statement. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or threatened by the
Commission.
(ii) As
of the Closing Date, the Registration Statement, the Preliminary
Prospectus and the Prospectus, except with respect to any
modification to which the Representatives have agreed in writing,
shall be in all substantive respects in the form furnished to the
Representatives or its counsel before such date or, to the extent
not completed on such date, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus that has previously been
furnished to the Representatives) as the Seller or Drive Consumer
has advised the Representatives, before such time, will be included
or made therein.
(iii) On
the most recent effective date of the Registration Statement, the
Registration Statement conformed in all material respects with the
applicable requirements of the Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, on the
Closing Date, the Registration Statement and, on the date hereof
and on the Closing Date, the Prospectus will conform in all
material respects with the applicable requirements of the Act and
the Rules and Regulations, and (x) the Registration Statement
will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (y) the
Prospectus [and the Designated Static Pool Information (as defined
below) taken together] will not contain any 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, in
light of the circumstances under which they were made, not
misleading; provided, however , that the foregoing does not
apply to (I) that part of the Registration Statement which
constitutes the Statements of Eligibility of Qualification (Form
T-1) of the Indenture Trustee or other indenture trustees under the
Trust Indenture Act (II) Underwriter Information (as defined
in Section 8(b) hereof) [or (III) information contained in or
omitted from either the Registration Statement or the Prospectus
based upon written information furnished to the Seller or Drive
Consumer by the Note Insurer (hereinafter referred to as “
Note Insurer Information ”), the Swap Counterparty
(hereinafter referred to as “ Swap Counterparty
Information ”) or the Letter of Credit Bank (hereinafter
referred to as the “ Letter of Credit Bank Information
”)]. [As used herein the term “ Designated Static
Pool Information ” shall mean the static pool information
referred to in the Preliminary Prospectus and the Prospectus under
the caption “The Receivables Pool – Static Pool
Information About Certain Previous Securitizations” but
deemed to be excluded from the Registration Statement and
Prospectus pursuant to Item 1105(d) of
Regulation AB.]
(iv) The
documents incorporated by reference in the Registration Statement,
the Preliminary Prospectus, (other than documents filed by Persons
other than the Seller), when they became or become effective under
the Act or were or are filed with the Commission under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), as the case may be, conformed or will
conform in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder.
(v) The
Preliminary Prospectus at the Time of Sale did not, and at the
Closing Date will not, include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it
being understood that no representation or warranty is made with
respect to the omission of pricing and price-dependent information,
which information shall appear in the final Prospectus but not in
the Preliminary Prospectus); provided, however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
contained in or omitted from either the Registration Statement or
the Prospectus based upon Underwriter Information (as defined in
Section 8(b) hereof.)
(vi) Other
than the Preliminary Prospectus and the Prospectus, the Issuer
(including its agents and representatives other than the
Underwriters in their capacity as
such) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
“written communication”, including any “free
writing prospectus”, (each as defined in Rule 405 under
the Act) that constitutes an offer to sell or solicitation of any
offer to buy the Notes.
(b) Each
of Drive Consumer and the Seller has been duly organized and is
validly existing as a corporation or limited liability company, as
the case may be, in good standing under the laws of the State of
its incorporation or formation and has all corporate or limited
liability company power, as the case may be. Drive Consumer or the
Seller, as applicable, has, in all material respects, full power
and authority to execute, deliver and perform its obligations under
this Underwriting Agreement, the Terms Agreement and each
Transaction Document to which it is a party, own its properties and
conduct its business as described in the Preliminary Prospectus and
the Prospectus, is duly qualified to do business and is in good
standing (or is exempt from such requirements), and has obtained
all necessary material licenses and approvals (except with respect
to the securities laws of any foreign jurisdiction or the state
securities or Blue Sky laws of various jurisdictions), in each
jurisdiction in which failure to so qualify or obtain such licenses
and approvals would have a material adverse effect on the interests
of holders of the Notes. The Seller has full power and authority to
cause the Issuer to issue the Notes.
(c) The
execution, delivery and performance by the Seller or Drive
Consumer, as applicable, of this Underwriting Agreement, the Terms
Agreement and each Transaction Document to which it is a party, and
the issuance and sale of the Notes, and the consummation of the
transactions contemplated hereby and thereby, have been duly
authorized by all necessary limited liability company or corporate
action on the part of the Seller or Drive Consumer, respectively.
Neither the execution and delivery by the Seller or Drive Consumer,
as applicable, of such instruments, nor the performance by the
Seller or Drive Consumer, respectively, of the transactions herein
or therein contemplated, nor the compliance by the Seller or Drive
Consumer, as applicable, with the provisions hereof or thereof,
will (i) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default under, any of the
provisions of the limited liability company agreement, certificate
of formation, Articles of Incorporation or By-laws, as applicable,
of such entity, (ii) result in a conflict with any of the
provisions of any judgment, decree or order binding on the Seller
or Drive Consumer, as applicable, or its properties,
(iii) conflict with any of the provisions of any indenture,
mortgage, agreement, contract or other instrument to which the
Seller or Drive Consumer, as applicable, is a party or by which it
is bound, (iv) conflict with, contravene or constitute a violation
of any law, statute, ordinance, rule or regulation to which it is
subject, or (v) result in the creation or imposition of any
lien, charge or encumbrance upon any of the Seller’s or Drive
Consumer’s, as applicable, property pursuant to the terms of
any such indenture, mortgage, contract or other
instrument.
(d) The
Seller or Drive Consumer, as applicable, has duly executed and
delivered this Underwriting Agreement and, as of the Closing Date,
has duly executed and delivered each Transaction Document to which
it is a party and, as of the date thereof, has duly executed and
delivered the Terms Agreement.
(e)
(i) Drive Consumer has authorized the conveyance of the
Contracts and other related property to the Seller; and
(ii) the Seller has authorized the conveyance of the Contracts
and other related property to the Issuer.
(f) Except
as set forth in or contemplated in the Prospectus or as has been
publicly disclosed by the Seller or Drive Consumer, there has been
no material adverse change in the condition (financial or
otherwise) of Drive Consumer or the Seller since [DATE] which would
reasonably be expected to have a material adverse effect on either
(A) the ability of Drive Consumer or the Seller to consummate
the transactions contemplated hereby or by the Terms Agreement, or
to perform its respective obligations hereunder or under the Terms
Agreement, or under any of the Transaction Documents to which it is
a party or (B) the Contracts.
(g) Any
taxes, fees and other governmental charges in connection with the
execution, delivery and performance by the Seller or Drive Consumer
of this Underwriting Agreement, the Terms Agreement and each
Transaction Document to which it is a party shall have been paid or
will be paid by the Seller or Drive Consumer, as applicable, at or
before the Closing Date to the extent then due.
(h) The
Notes, when validly issued pursuant to the Indenture and sold to
the Underwriters pursuant to this Underwriting Agreement and the
Terms Agreement will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and
the Prospectus and will be validly issued and entitled to the
benefits and security afforded by the Indenture. When executed and
delivered by the parties thereto, each of the Indenture and each
Transaction Document to which the Seller or Drive Consumer is a
party will constitute the legal, valid and binding obligation of
the Seller or Drive Consumer, as applicable, enforceable against
such entity in accordance with its terms, except to the extent that
the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights in general and to general
principles of equity. All approvals, authorizations, consents,
filings, orders or other actions of any person, corporation or
other organization, or of any court, governmental agency or body or
official (except with respect to the securities laws of any foreign
jurisdiction or the state securities or Blue Sky laws of various
jurisdictions), required in connection with the valid and proper
authorization, issuance and sale of the Notes pursuant to this
Underwriting Agreement, the Terms Agreement and the Indenture have
been or will be taken or obtained on or before the Closing Date. As
of the Closing Date, the Issuer’s pledge of the Trust Estate
to the Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, [the Swap
Counterparty, the Letter of Credit Bank and the Note Insurer], a
first priority perfected security interest therein, subject to no
prior lien, mortgage security interest, pledge, adverse claim,
charge or other encumbrance, except as may be permitted by the
terms of the Transaction Documents.
(i) Neither
the Seller nor the Issuer is now, and following the issuance of the
Notes will be, an “investment company” that is
registered or required to be registered under, or is otherwise
subject to the restrictions of, the Investment Company Act of 1940,
as amended (the “ 1940 Act ”).
(j) Except
for the Underwriters, neither the Seller, the Issuer nor Drive
Consumer has employed or retained a broker, finder, commission
agent or other person in connection with the sale of the Notes, and
neither the Seller, the Issuer nor Drive Consumer is under any
obligation to pay any broker’s fee or commission in
connection with such sale.
(k) As
of the Closing Date, the Indenture has been duly qualified under
the Trust Indenture Act.
(l) Based
on information currently available to, and in the reasonable belief
of, the management of the Seller or Drive Consumer, as applicable,
such entity is not engaged (whether as defendant or otherwise) in,
nor has such entity knowledge of the existence of, or any threat
of, any legal, arbitration, administrative or other proceedings,
the result of which could reasonably have a material adverse effect
on the Noteholders.
(m) As
of the Closing Date, the representations and warranties (other than
the representations and warranties concerning the characteristics
of the Receivables which representations and warranties will be
true and correct in all material respects as of the date set forth
in the applicable Transaction Document) of the Seller, the Issuer
or Drive Consumer (both in its individual capacity and as
Servicer), as applicable, in each Transaction Document to which it
is a party will be true and correct in all material
respects.
(n) As
of the Closing Date, there are no contracts or documents that are
required to be filed as exhibits to the Registration Statement that
have not been so filed.
(o) No
Event of Default or Servicer Termination Event, or an event which
after any applicable grace period or the giving of notice which
would constitute an Event of Default or Servicer Termination Event,
has occurred.
(p) The
Seller was not, on the date on which the first bona fide offer of
the Notes sold pursuant to the Terms Agreement was made, an
“ineligible issuer” as defined in Rule 405 under
the Act.
Section 3. Purchase, Sale and Issuance of
Notes.
Subject to the
terms and conditions and in reliance upon the covenants,
representations and warranties set forth herein and in the Terms
Agreement, the Seller agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase the
respective Initial Note Balance of the Notes set forth opposite
such Underwriter’s name on Annex 1 hereto. The Notes
will bear interest at the applicable rate set forth in the Terms
Agreement. The sale and purchase of the Notes shall take place at a
closing (the “ Closing ”) at the offices of
Dechert LLP, 30 Rockefeller Center, 41st Floor, New York, New York
on the Closing Date. The net purchase price for the Notes,
expressed as a percentage of the Initial Note Balance of the
applicable class of Notes, shall be as set forth in the Terms
Agreement. On the Closing Date, as consideration for the delivery
of the Notes as set forth in this Section 3, each Underwriter
agrees, severally and not jointly, to pay (or cause to be paid) the
net purchase price to an account to be designated by the Seller.
The underwriting discount to the Underwriters, the selling
concessions that the Underwriters may allow to certain dealers, and
the discounts that such dealers may reallow to certain other
dealers, each expressed as a percentage of the Initial Note Balance
of the
applicable
class of Notes, shall be as set forth in the Terms Agreement. The
Seller shall deliver (or shall cause the Issuer to deliver) the
Notes to the Representatives for the respective accounts of the
several Underwriters through the facilities of The Depository Trust
Company (“ DTC ”). The Notes shall be global
notes registered in the name of Cede & Co., as nominee for DTC.
The interests of beneficial owners of the Notes will be represented
by book entries on the records of DTC and participating members
thereof. The number and denominations of definitive notes so
delivered shall be as specified by DTC. The definitive notes for
the Notes will be made available for inspection by the
Representatives at the offices of Dechert LLP, at the address set
forth above, not later than 1:00 p.m., New York time on the
Business Day before the Closing Date, or such other date and time
as the Representatives and the Seller may agree.
Section 4. Offering by Underwriters.
(a) The
Seller authorizes each Underwriter to take all such action as it
may deem advisable in respect of all matters pertaining to sales of
the Notes to dealers and to retail purchasers and to member firms
and specialists, including the right to make variations in the
selling arrangements with respect to such sales. Subject to the
satisfaction of the conditions set forth in Section 6, each
Underwriter shall purchase the Notes for resale upon the terms and
conditions set forth in the Prospectus. If the Prospectus specifies
an initial public offering price or a method by which the price at
which such Notes are to be sold, then after the Notes are released
for sale to the public, the Underwriters may vary from time to time
the public offering price, selling concessions and reallowances to
dealers that are members of the National Association of Securities
Dealers, Inc. (“ NASD ”) and other terms of sale
hereunder and under such selling arrangements.
(b) Notwithstanding
the foregoing, each Underwriter agrees that it has not and will not
offer or sell any Notes within the United States, its territories
or possessions or to persons who are citizens thereof or residents
therein, except in transactions that are not prohibited by any
applicable securities, bank regulatory or other applicable
law.
(c) Notwithstanding
the foregoing, each Underwriter agrees that it has not and will not
violate any applicable securities laws in its offer or sale of any
Notes within any other country, its territories or possessions or
to persons who are citizens thereof or residents
therein.
(d) Each
Underwriter agrees that:
(A) it has not
offered or sold, and prior to the date which is six months after
the Closing Date, will not offer or sell any Notes to persons in
the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing, or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995, as amended (the “ Regulations ”) and the
Financial Services and Markets Act 2000, as amended (the “
FSMA ”);
(B) it has only
communicated or caused to be communicated and will only communicate
or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of Section 21 of
the FSMA received by it in connection with the issue or sale of any
Notes in circumstances in which Section 21(1) of the FSMA does not
apply to the Issuer and shall procure that the Notes offered or
sold by it and its affiliates are not offered or sold in the United
Kingdom other than to persons authorised under the FSMA or to
persons otherwise having professional experience in matters
relating to investments and qualifying as investment professionals
under Article 19 of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2001, as amended or to persons
qualifying as high net worth persons under Article 49 of that
Order or, if distributed in the United Kingdom by authorised
persons, only to persons qualifying as investment professionals
under Article 14 of the Financial Services and Markets Act
2000 (Promotion of Collective Investment Schemes) (Exemptions)
Order 2001 (“CIS Order”) or to persons qualifying as
high net worth persons under Article 22 of the CIS Order or to
any other person to whom the Notes may otherwise lawfully be
offered or to whom such invitation or inducement to engage in
investment activity in connection with the issue or sale of the
Notes may otherwise lawfully be communicated or caused to be
communicated; and
(C) it has
complied and will comply with all applicable provisions of the
Regulations and the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom.
(e) Each
Underwriter agrees that (i) if the Prospectus is not delivered
with the confirmation in reliance on Rule 172, it will include
in every confirmation sent out by such Underwriter the notice
required by Rule 173 informing the investor that the sale was
made pursuant to the Registration Statement and that the investor
may request a copy of the Prospectus from such Underwriter;
(ii) if a paper copy of the Prospectus is requested by a
person who receives a confirmation, such Underwriter shall deliver
a printed or paper copy of such Prospectus; and (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter
for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted
electronically to such Underwriter by or on behalf of the Seller
specifically for use by such Underwriter pursuant to this
Section 4(e); for example, if the Prospectus is delivered to
an Underwriter by or on behalf of the Seller in a single electronic
file in pdf format, then such Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic
file in pdf format. Each Underwriter further agrees that if it
delivers to an investor the Prospectus in pdf format, upon such
Underwriter’s receipt of a request from the investor within
the period for which delivery of the Prospectus is required, such
Underwriter will promptly deliver or cause to be delivered to the
investor, without charge, a paper copy of the
Prospectus.
(f) Prior
to the Closing Date, the Representatives shall notify Drive
Consumer and the Seller of (i) the date on which the
Preliminary Prospectus is first used and (ii) the time of the
first Contract of Sale to which such Preliminary Prospectus
relates.
(g) Each
Underwriter represents and agrees (i) that it did not enter
into any contract of sale for any Notes prior to the Time of Sale
and (ii) that it will, at any time that such Underwriter is
acting as an “underwriter” (as defined in
Section 2(a)(11) of the Act) with respect to the Notes,
deliver to each investor to whom Notes are sold by it during the
period prior to the filing of the final Prospectus (as notified to
the Underwriters by the Seller), prior to the applicable time of
any such Contract of Sale with respect to such investor, the
Preliminary Prospectus.
(h) In
relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a “
Relevant Member State ”), each Underwriter represents
and agrees with the Seller that with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State (the “ Relevant Implementation
Date ”) it has not made and will not make an offer of
Notes to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Notes which has been
approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that
it may, with effect from and including the Relevant Implementation
Date, make an offer of Notes to the public in that Relevant Member
State at any time:
(i) to
legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorised or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to
any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a
total balance sheet of more than €43,000,000 and (3) an
annual net turnover of more than €50,000,000, as shown in its
last annual or consolidated accounts; or
(iii) in
any other circumstances which do not require the publication by the
issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes
of this Section 4(h), (A) the expression an “offer
of Notes to the public” in relation to any Notes in any
Relevant Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and
the Notes to be offered so as to enable an investor to decide to
purchase or subscribe the Notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive
in that Member State, (B) the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State and
(C) the countries comprising the “European Economic
Area” are Austria, Belgium, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom,
Iceland, Liechtenstein and Norway.
(i) If
the Seller, Drive Consumer or an Underwriter determines or becomes
aware that any “written communication” (as defined in
Rule 405 under the Act) (including without limitation the
Preliminary Prospectus) or oral statement (when considered in
conjunction
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10
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Underwriting
Agreement
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with all
information conveyed at the time of the “contract of
sale” within the meaning of Rule 159 under the Act and all
Commission guidance relating to such rule (the “ Contract
of Sale ”)) made or prepared by the Seller or such
Underwriter contains an untrue statement of material fact or omits
to state a material fact necessary to make the statements, in light
of the circumstances under which they were made, not misleading at
the time that a Contract of Sale was entered into, either the
Seller or such Underwriter may prepare corrective information, with
notice to the other parties and such Underwriter shall deliver such
information in a manner reasonably acceptable to both parties, to
any person with whom a Contract of Sale was entered into based on
such written communication or oral statement, and such information
shall
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