EXHIBIT 1.1
____________________ 200_-_
[$__________ Class A-1 _____% Asset Backed Notes
$__________ Class A-2 _____% Asset Backed Notes
$__________ Class A-3 _____% Asset Backed Notes
$__________ Asset Backed Certificates]/1/
[$__________ Asset Backed Certificates, Class A
$__________ Asset Backed Certificates, Class B]
BOND SECURITIZATION, L.L.C.
(Company)
______________________________
(Sponsor)
______________________________
(Sponsor SPE)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
BANC ONE CAPITAL MARKETS, INC.
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
--------------
Mail Suite IL1-0596
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0596
Ladies and Gentlemen:
Bond Securitization, L.L.C., a Delaware limited liability company (the
"Company") and a wholly owned, special purpose, bankruptcy remote subsidiary of
Banc One Financial
----------------
/1/ This form of Underwriting Agreement contains alternative provisions that
relate to offerings of Asset Backed Certificates, on the one hand, and Asset
Backed Notes and Asset Backed Certificates, on the other hand.
Corporation, a Delaware corporation, proposes to sell to the Underwriters listed
in Schedule I hereto (the "Underwriters") [$__________ aggregate principal
amount of Class A-1 _____% Asset Backed Notes (the "Class A-1 Notes"),
$__________ aggregate principal amount of Class A-2 _____% Asset Backed Notes
(the "Class A-2 Notes"), $__________ aggregate principal amount of Class A-3
_____% Asset Backed Notes (the "Class A-3 Notes" and, together with the Class
A-1 Notes and the Class A-2 Notes, the "Notes"), set forth in Section 1 hereof]
[the aggregate principal amount of ___% Asset Backed Certificates, Class A
(together with the Tail Certificate described below, the "Class A Certificates")
and the aggregate principal amount of ___% Asset Backed Certificates, Class B
(the "Class B Certificates", and together with the Class A Certificates, the
"Securities" or the "Certificates"), set forth in Section 1 hereof]. The
[Securities][Notes] are issued by the ____________________ 200_-_ (the "Trust").
The Trust also will issue $__________ aggregate principal amount of certificates
(the "Certificates" and, together with the Notes, the "Securities"). Each
Certificate will represent a fractional undivided interest in the Trust. [Each
Note will be secured by the assets of the Trust pursuant to the Indenture (as
hereinafter defined).]
The assets of the Trust (the "Trust Property") include, among other things,
a pool of retail motor vehicle loans and/or retail installment sale contracts
secured by new and used automobiles, motorcycles, vans, trucks, buses and/or
trailers, light duty trucks and other similar vehicles (the "Receivables") and
certain monies received under the Receivables [on and] after __________ __,
200_ (the "Cutoff Date"), such Receivables to be serviced for the Trust by
____________________ (the "Sponsor") in its capacity as servicer (in such
capacity, the "Servicer").
The Receivables will be sold to __________, a __________ (the "Sponsor
SPE") by the Sponsor pursuant to a Purchase Agreement, dated as of the Closing
Date (the "Sponsor Purchase Agreement") between the Sponsor SPE and the Sponsor
and to the Company by the Sponsor SPE pursuant to a Purchase Agreement, dated as
of the Closing Date (the "Sponsor SPE Purchase Agreement") between the Company
and the Sponsor SPE. The Receivables will be conveyed by the Company to the
Trust pursuant to a [Pooling and Servicing Agreement] [Sale and Servicing
Agreement] dated as of the Closing Date (the ["Pooling and Servicing Agreement"]
["Sale and Servicing Agreement"]) among the Company, the Servicer[, [Indenture
Trustee], as indenture trustee (the "Indenture Trustee")] and __________, as
[owner] trustee (the "[Owner] Trustee")].
[The Notes will be issued pursuant to an Indenture to be dated as of the
Closing Date (the "Indenture") between the Trust and the Indenture Trustee. The
Servicer will agree to perform certain administrative tasks pursuant to an
Administration Agreement to be dated as of the Closing Date (the "Administration
Agreement") among the Sponsor, the Trust and the Indenture Trustee. The
Certificates will be issued pursuant to [an] [a] [Amended and Restated] Trust
Agreement to be dated as of the Closing Date (the "Trust Agreement") between the
Company and the Owner Trustee.] [The Class A Certificates will be issued in an
aggregate principal amount of $__________, which is equal to approximately ___%
of the aggregate principal balance of the Receivables as of the Cutoff Date, and
$__________ aggregate principal amount of the Class A
-2-
Certificates (the "Tail Certificate") will initially be retained by the Sponsor.
The Class B Certificates will be issued in an aggregate principal amount of
$__________, which is equal to approximately ___% of the aggregate principal
balance of the Receivables as of the Cutoff Date. Payments in respect of the
Class B Certificates are, to the extent provided in the Pooling and Servicing
Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement.]
The Company has prepared, in conformity in all material respects with the
provisions of the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations of the Commission thereunder (the "Rules and Regulations"), and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement (Reg. No. 333-63354), including a prospectus, relating to
the Securities. [The Sponsor has] also prepared an ABS term sheet for the
[Securities] [Notes] (the "ABS [Security] [Note] Term Sheet") in conformity in
all material respects with the Act, the Rules and Regulations and all
requirements applicable to ABS term sheets and computational materials set forth
in no-action letters issued by the Commission.] The registration statement as
amended at the time it became effective, or, if any post-effective amendment has
been filed with respect thereto, as amended by the most recent post-effective
amendment at the time of its effectiveness, is referred to as the "Registration
Statement," the form of base prospectus included in the Registration Statement
as most recently filed with the Commission is referred to as the "Base
Prospectus" and the form of the prospectus which includes the Base Prospectus
and a prospectus supplement describing the [Securities] [Notes] and the offering
thereof (the "Prospectus Supplement") which prospectus is first filed on or
after the date of this Agreement in accordance with Rule 424(b) is referred to
in this Agreement as the "Prospectus".
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean the latest of the dates that the
Registration Statement or the most recent post-effective amendment thereto
became effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Rule 424" refers to
such rule under the Act. "Basic Documents" shall mean the Sponsor Purchase
Agreement, the Sponsor SPE Purchase Agreement, [the Reserve Account Agreement,]
the [Pooling and Servicing Agreement] [Sale and Servicing Agreement], [the
Indenture, the Trust Agreement, the Administration Agreement, the Certificate
Purchase Agreement with respect to the Certificates (the "Certificate Purchase
Agreement"),] this Agreement, the Securities and [each] [the] Depository
Agreement. "Participating Entity" means each of the Sponsor and the Sponsor SPE.
"Securityholder" means any Noteholder and any Certificateholder and "Security
Owner" means the beneficial owner of any Note or Certificate. To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in [the Pooling and Servicing Agreement] [Appendix X to the Sale and
Servicing Agreement].
-3-
1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company, the respective aggregate principal amounts and classes of [Securities]
[Notes] set forth opposite such Underwriter's name in Schedule I hereto. The
purchase price for [Securities] [Notes] of any class will be the applicable
percentage set forth on Schedule I hereto of the aggregate principal amount of
such class purchased[, plus, in each case, accrued interest, if any, on the
principal amount thereof at the applicable [Interest Rate or] Certificate Rate
(as such terms are defined in the Prospectus), as the case may be, from (but
excluding) __________, 200_, to (and including) the Closing Date.]
2. The Company understands that the Underwriters intend (i) to make a
public offering of the [Securities] [Notes] purchased by the Underwriters
hereunder as soon after the Registration Statement and this Agreement have
become effective as in the judgment of the Company and the Representative is
advisable and (ii) initially to offer the [Securities] [Notes] purchased by the
Underwriters hereunder upon the terms set forth in the Prospectus.
3. Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made to the Company or to its order by wire transfer of same
day funds at the office of Xxxxx, Brown & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 at [10:00 A.M.], Chicago, Illinois, time on __________
__, 200_, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as the Representative and the Company may
agree upon in writing (the "Closing Date"). As used herein, the term "Business
Day" means any day other than a day on which banks generally are permitted or
required to be closed in New York, New York, Chicago, Illinois or __________,
__________.
Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made against delivery to the Representative for the
respective accounts of the Underwriters on the Closing Date of such [Securities]
[Notes] in definitive form registered in the name of Cede & Co. as nominee of
The Depository Trust Company and in such denominations, as permitted by the
Basic Documents, as the Representative shall request in writing not later than a
reasonable time prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the [Securities] [Notes]
duly paid by the Company. [The Company shall make such definitive certificates
representing the [Securities] [Notes] available for inspection by the
Representative at the office of ____________________ not later than [1:00 P.M.],
[City, State] time, on the Business Day prior to the Closing Date.]
4. The Company represents and warrants to and agrees with each Underwriter
that:
(a) The Registration Statement, including amendments thereto as may
have been required on or prior to the date hereof, relating to the
[Securities] [Notes], has been filed with the Commission and such
Registration Statement as amended has become effective. The conditions to
the use by the Company of a Registration Statement on Form
-4-
S-3 under the Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus.
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of such Participating Entity, threatened by
the Commission, and (i) on the Effective Date of the Registration
Statement, the Registration Statement conformed in all material respects to
the 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 (ii) at the time of filing of the
Prospectus pursuant to Rule 424(b) and on the Closing Date the Registration
Statement will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and such document 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions contained in the Prospectus
other than the Company Information (as defined herein).
(c) The Company is a corporation that is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, with power and authority to own its properties and conduct
its business as now conducted by it and had at all relevant times, and has,
full power, authority and legal right to acquire, own and sell the
Receivables and the other Trust Property. The Company has the power,
authority and legal right to execute, deliver and perform this Agreement
and each of the other Basic Documents to which it is a party and to carry
out their respective terms and to sell and assign the respective property
to be sold and assigned to and deposited with the [Owner] Trustee as Trust
Property.
(d) The execution, delivery and performance by the Company of each of
the Basic Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
the Company by all necessary corporate action. The Basic Documents to which
the Company is a party have been duly executed and delivered by the Company
and, when executed and delivered by the Company and the other parties
thereto, each of such Basic Documents will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies.
(e) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by the Company of
-5-
any of the Basic Documents to which it is a party or the consummation of
the transactions contemplated hereby or thereby except such as have been
obtained and made under the Act and the Rules and Regulations or state
securities laws and any filings of UCC financing statements.
(f) The Company is not in violation of its organizational documents
or bylaws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it is bound which violation
or default would have a material adverse effect on the transactions
contemplated herein or in the Basic Documents. The execution, delivery and
performance by the Company of the Basic Documents to which it is a party,
the consummation of the transactions contemplated hereby and thereby and
the compliance with the terms and provisions hereof and thereof will not
materially conflict with or result in a material breach or violation of any
of the terms and provisions of, constitute (with or without notice or lapse
of time or both) a material default under or result in the creation or
imposition of any Lien (other than as contemplated by the Basic Documents)
upon any of its properties pursuant to the terms of, (A) the organizational
documents or bylaws of the Company, (B) any material indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to which
the Company is a party or by which the Company is bound, which violation or
default would have a material adverse effect on the transactions
contemplated herein or in the Basic Documents or (C) any law, order, rule
or regulation applicable to the Company of any regulatory body, any court,
administrative agency or other governmental instrumentality having
jurisdiction over the Company.
(g) There are no proceedings or investigations pending, or to the
knowledge of the Company threatened, to which the Company is a party before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) that are required to be disclosed in the
Registration Statement and are not so disclosed, (ii) asserting the
invalidity of this Agreement or any of the Basic Documents, (iii) seeking
to prevent the issuance of the Securities or the consummation of any of the
transactions contemplated by this Agreement or any of the Basic Documents,
(iv) seeking any determination or ruling that might materially and
adversely affect the performance by the Company of its obligations under,
or the validity or enforceability of, this Agreement or any of the Basic
Documents, (v) that may materially and adversely affect the federal or
state income, excise, franchise or similar tax attributes of any of the
Securities, or (vi) which, if determined adversely, could individually or
in the aggregate reasonably be expected to materially adversely affect the
interests of the holders of any of the Securities or the marketability of
any of the Securities.
(h) There are no contracts or other documents to which the Company is
a party of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement pursuant to the Act and the Rules and Regulations which are not
filed or described as required.
-6-
(i) The representations and warranties of the Company contained in
the Basic Documents to which it is a party are true and correct as of the
dates of the respective Basic Documents in all material respects.
(j) By assignment and delivery of each of the Receivables to the
Trust as of the Closing Date, the Company will transfer title in the
Receivables to the Trust, subject to no Lien created by the Company prior
or equal to the ownership or security interest granted to the Trust.
5. Each Participating Entity represents and warrants (jointly and
severally) to and agrees with each Underwriter that:
(a) (i) On the date of this Agreement, the Prospectus conforms in all
material respects to the requirements of the Act and the Rules and
Regulations, and does 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 and (ii) at the time of filing
of the Prospectus pursuant to Rule 424(b) and on the Closing Date the
Prospectus will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and such document 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions (x) made in reliance upon and in conformity
with information furnished to the Participating Entities in writing by any
Underwriter through the Representative expressly for use in the Prospectus
(collectively, "Underwriter Information") or (y) under the caption "The
Company" in the Base Prospectus (the "Company Information"). Each
Participating Entity hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only Underwriter Information furnished
consists of [the statements in the first sentence of the [eighth] paragraph
under the caption "Underwriting" in the Prospectus Supplement regarding the
Underwriters' intention to make a market in the [Securities] [Notes]].
(b) The computer tapes with respect to the Receivables to be sold to
the Trust created as of the Cutoff Date (the "Computer Tapes"), and made
available to the Representative by the Sponsor [and __________,
respectively,] were complete and accurate in all material respects as of
the date thereof.
(c) Such Participating Entity is either a ___________ or
_____________ that is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, with power and
authority to own its properties and conduct its business as now conducted
by it and had at all relevant times, and has, full power, authority and
legal right to acquire, own and sell the Receivables and the other Trust
Property. Such
-7-
Participating Entity has the power, authority and legal right to execute,
deliver and perform this Agreement and each of the other Basic Documents to
which it is a party and to carry out their respective terms and to sell and
assign the respective property to be sold and assigned to and deposited
with the [Owner] Trustee as Trust Property.
(d) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Basic Documents and duly executed and
authenticated by the [Owner] Trustee [and the Indenture Trustee, as
applicable,] will be duly and validly issued, authenticated and delivered
and entitled to the benefits provided by the Basic Documents. The
execution, delivery and performance by such Participating Entity of each of
the Basic Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
such Participating Entity by all necessary action. The Basic Documents to
which such Participating Entity is a party have been duly executed and
delivered by such Participating Entity and, when executed and delivered by
such Participating Entity and the other parties thereto, each of such Basic
Documents will constitute a legal, valid and binding obligation of such
Participating Entity, enforceable against such Participating Entity in
accordance with its respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies. The Securities and
the Basic Documents conform to the descriptions thereof in the Prospectus
in all material respects. [The Notes and the Indenture have been duly
executed and delivered by the Trust and, when the Indenture is executed and
the Notes are authenticated by the Indenture Trustee, the Indenture and the
Notes will constitute legal, valid and binding obligations of the Trust,
enforceable in accordance with their respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
moratorium, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific remedies.]
(e) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by such Participating Entity of any of the Basic
Documents to which it is a party or the consummation of the transactions
contemplated hereby or thereby except such as have been obtained and made
under the Act and the Rules and Regulations or state securities laws and
any filings of UCC financing statements.
(f) Such Participating Entity is not in violation of its
organizational documents or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by which
it is bound which violation or default would have a material adverse effect
on the transactions contemplated herein or in the Basic
-8-
Documents. The execution, delivery and performance by such Participating
Entity of the Basic Documents to which it is a party, the consummation of
the transactions contemplated hereby and thereby and the compliance with
the terms and provisions hereof and thereof will not materially conflict
with or result in a material breach or violation of any of the terms and
provisions of, constitute (with or without notice or lapse of time or both)
a material default under or result in the creation or imposition of any
Lien (other than as contemplated by the Basic Documents) upon any of its
properties pursuant to the terms of, (A) the organizational documents or
bylaws of such Participating Entity, (B) any material indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to which
such Participating Entity is a party or by which such Participating Entity
is bound, which violation or default would have a material adverse effect
on the transactions contemplated herein or in the Basic Documents or (C)
any law, order, rule or regulation applicable to such Participating Entity
of any regulatory body, any court, administrative agency or other
governmental instrumentality having jurisdiction over such Participating
Entity.
(g) There are no proceedings or investigations pending, or to the
knowledge of such Participating Entity threatened, to which such
Participating Entity is a party before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) that are required to be disclosed in the Prospectus and are not so
disclosed, (ii) asserting the invalidity of this Agreement or any of the
Basic Documents, (iii) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, (iv) seeking any determination or ruling
that might materially and adversely affect the performance by such
Participating Entity of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents, (v) that
may materially and adversely affect the federal or state income, excise,
franchise or similar tax attributes of any of the Securities, or (vi)
which, if determined adversely, could individually or in the aggregate
reasonably be expected to materially adversely affect the interests of the
holders of any of the Securities or the marketability of any of the
Securities.
(h) There are no contracts or other documents of a character required
to be described in the Prospectus pursuant to the Act and the Rules and
Regulations which are not filed or described as required.
(i) The representations and warranties of such Participating Entity
contained in the Basic Documents to which it is a party are true and
correct as of the dates of the respective Basic Documents in all material
respects.
(j) By assignment and delivery of each of the Receivables of the
Sponsor to the Sponsor SPE by the Sponsor and to the Company by the Sponsor
SPE as of the Closing Date, the Sponsor will transfer title in such
Receivables to the Sponsor SPE and the Sponsor SPE will transfer title of
such Receivables to the Company, subject to no
-9-
Lien prior or equal to the ownership interest granted to the Sponsor SPE or
the Company, as applicable.
(k) ____________________ are independent public accountants with
respect to the Participating Entities within the meaning of the Act and the
Rules and Regulations.
6. Each Participating Entity and the Company, as applicable, covenants
and agrees (severally and not jointly) with the Underwriters that:
(a) Prior to the termination of the offering of the [Securities]
[Notes], the Company will not file or cause to be filed any amendment of
the Registration Statement or supplement to the Prospectus without first
furnishing to the Representative a copy of the proposed amendment or
supplement and giving the Representative a reasonable opportunity to review
the same. Subject to the foregoing sentence, the Company will cause the
Prospectus, properly completed, and any supplement thereto, to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed [and the Company will cause the ABS
[Security] [Note] Term Sheet to be filed with the Commission pursuant to a
Current Report on Form 8-K within the second business day following the
first day the ABS [Security] [Note] Term Sheet has been sent to a
prospective investor in the [Securities] [Notes]] and will provide evidence
satisfactory to the Underwriters of such timely filing. The Company will
promptly advise the Underwriters (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) [and the ABS [Security] [Note] Term Sheet shall have been filed
pursuant to a Current Report on Form 8-K], (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (iv) of the
receipt by the Company of notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. The receipt by the Representative of any
amendment or supplement to the Registration Statement or Prospectus, as
applicable, shall not be deemed a waiver of any condition set forth in
Section 7 hereof.
(b) The Company will deliver, at its expense, to the Representative,
two signed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits, and, during the
period mentioned in paragraph (c) below, and the Participating Entities
will deliver, at their expense, to each Underwriter as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Representative may reasonably request. [The Company will furnish or cause
to be
-10-
furnished to the Representative copies of all reports on Form SR required
by Rule 463 under the Act.]
(c) If during such period of time after the first date of the public
offering of the [Securities] [Notes] as in the opinion of counsel for the
Underwriters a prospectus relating to the [Securities] [Notes] is required
by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not materially misleading, or it is necessary to amend or
supplement the Prospectus to comply with applicable law, the Participating
Entities will forthwith prepare and furnish, at the expense of the
Participating Entities, to the Underwriters and to the dealers (whose names
and addresses the Representative will furnish to the Participating
Entities) to which [Securities] [Notes] may have been sold by the
[Representative on behalf of the] Underwriters and upon request by the
Representative to any other dealers identified by the Representative, such
amendments or supplements to the Prospectus as may be necessary so 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 materially misleading or so that the Prospectus will comply with
applicable law. Neither your consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(d) The Company will endeavor to qualify the [Securities] [Notes] for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the [Securities] [Notes] and the Participating Entities will pay all
reasonable fees and expenses (including fees and disbursements of counsel
to the Representative to the extent provided in Section 6(iii) hereof)
incurred in connection with such qualification and in connection with the
determination of the eligibility of the [Securities] [Notes] for investment
under the laws of such jurisdictions as the Representative may designate;
provided, however, that the Company shall not be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified; and
provided further that the Company shall not be required to file a general
consent to service of process in any jurisdiction.
(e) [On or before __________, 200_ the] [The] Participating Entities
will cause the Trust to make generally available to Securityholders and to
the Representative all financial information required to be sent to
Securityholders pursuant to the Basic Documents.
(f) For the period from the date of this Agreement until the
retirement of all of the Securities the Participating Entities will, or
will cause the Servicer to, furnish to the Representative (i) copies of
each Servicer's Certificate and the annual statements of
-11-
compliance delivered to the [Owner] Trustee [or Indenture Trustee] pursuant
to the Basic Documents and the annual independent certified public
accountant's servicing reports furnished to the [Owner] Trustee [or
Indenture Trustee] pursuant to the Basic Documents, by first-class mail at
the same time such statements and reports are furnished to the [Owner]
Trustee [or Indenture Trustee], (ii) copies of each amendment to any of the
Basic Documents, (iii) copies of all other reports and communications to
any Securityholders or Security Owners, or to or from the [Owner] Trustee,
[Indenture Trustee, the Clearing Agency, any Rating Agency or the
Commission relating to the Trust or the Securities, (iv) copies of each
Opinion of Counsel and Officer's Certificate delivered pursuant to the
Basic Documents, as soon as available, and (v) from time to time, such
other information concerning the Trust or the Participating Entities as the
Representative may reasonably request.
(g) If required, the Company will register the [Securities] [Notes]
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to __________ __, 200_.
(h) To the extent, if any, that the ratings provided with respect to
the [Securities] [Notes] by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by any
Participating Entity or the Company, the Sponsor shall furnish or cause to
be furnished such documents and use reasonable efforts to take any such
other action.
(i) The Participating Entities will not, without the prior written
consent of the Representative, publicly offer or sell in the United States
any asset backed notes or asset backed certificates or other similar
securities representing interests in or secured by motor vehicle loans
and/or retail installment sale contracts secured by new and/or used
automobiles, motorcycles, vans, trucks, buses and/or trailers, light duty
trucks and/or other similar vehicles originated or owned by any of the
Participating Entities for a period of thirty days following the
commencement of the offering of the [Securities] [Notes] to the public.
7. The Participating Entities will pay (or will promptly reimburse the
Company and/or the Underwriters to the extent that the Company and/or the
Underwriters shall have paid or otherwise incurred) all costs and expenses
incident to the performance of their respective obligations under this
Agreement, including, without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the [Securities] [Notes], (ii) incident to the
preparation, printing (or otherwise reproducing), filing and delivery under the
Act of the Registration Statement[,] [and] the Prospectus [and any preliminary
prospectus] [and the ABS [Security] [Note] Term Sheet] (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the [Securities] [Notes] under the laws of such jurisdictions as
the Representative may designate
-12-
(including fees and disbursements of counsel for the Underwriters with respect
thereto, (iv) related to any filing with the National Association of Securities
Dealers, Inc., (v) in connection with the printing (including word processing
and duplication costs) and delivery of this Agreement, the Basic Documents and
any Blue Sky Memorandum and the furnishing to the Underwriters and dealers of
copies of the Registration Statement[, the ABS [Security] [Note] Term Sheet]
[, any preliminary prospectus] and the Prospectus (including exhibits,
amendments and supplements thereto) as herein provided, (vi) the fees and
disbursements of the counsel of the Participating Entities and the Company and
accountants [and all fees and disbursements of Underwriters' counsel other than
a portion of such fees and disbursements to be agreed between the Participating
Entities and the Representative], (vii) any fees and expenses payable to the
Clearing Agency, (viii) any fees and expenses payable to the Rating Agencies in
connection with the rating of the [Securities] [Notes] and (ix) any fees and
expenses of the [Owner] Trustee[, the Indenture Trustee and
____________________, as the collateral agent].
8. The obligations of the Underwriters to purchase and pay for the
[Securities] [Notes] will be subject to the accuracy in all material respects,
as of the date hereof and the Closing Date, of the representations and
warranties on the part of the Participating Entities herein, to the accuracy of
the statements of officers of the Participating Entities and the Company made in
any writing delivered at the Closing pursuant to the provisions hereof, to the
performance by each of the Participating Entities and the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) At each of the time this Agreement is executed and delivered by
the Participating Entities and the Company and at the Closing Date,
____________________ shall have furnished to the Representative letters
dated, respectively, as of the date of this Agreement and as of the Closing
Date, substantially in the forms of the drafts to which the Representative
previously agreed and otherwise in form and substance satisfactory to the
Representative and ____________________.
(b) The Prospectus used to confirm sales of [Securities] [Notes]
shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 5(a) of this Agreement; [the ABS
[Security] [Note] Term Sheet shall have been filed with the Commission
pursuant to a Current Report on Form 8-K within two business days following
the first day the ABS [Security] [Note] Term Sheet is first sent to
prospective investors in the [Securities] [Notes];] no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or, to
the knowledge of the Company, contemplated by the Commission; and all
requests for additional information from the Commission with respect to the
Registration Statement shall have been complied with to the reasonable
satisfaction of the Representative.
-13-
(c) The Representative shall have received officer's certificates,
dated the Closing Date, signed by any Vice President, Secretary or more
senior officer of each Participating Entity, representing and warranting
that, as of the Closing Date, the representations and warranties of such
Participating Entity in this Agreement and the Basic Documents are true and
correct, that such Participating Entity has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder or under the Basic Documents at or prior to the Closing Date, and
that since __________ __, 200_, there has been no material adverse change,
or any development involving a material adverse change, in or affecting
particularly the Originator's portfolio of Motor Vehicle Loans or the
business or properties of the Trust, any Participating Entity or its
Affiliates which materially impairs the investment quality of the
[Securities] [Notes].
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material adverse change, or any development
involving a material adverse change, in or affecting the business,
operations, financial condition or properties of the Trust, any
Participating Entity or its Affiliates which, in the reasonable judgment of
the Representative, materially impairs the investment quality of the
[Securities] [Notes] or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the [Securities] [Notes],
(ii) any downgrading in the rating of any debt securities of any
Participating Entity by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any such debt securities (other than an
announcement with no implication of a possible downgrading of such rating).
(e) ____________________, general counsel of the Participating
Entities, shall have furnished to the Representative his written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel, with respect to certain corporate matters
[and securities law matters] relating to each Participating Entity.
(f) Xxxxx Xxxxx & Xxxxx, special counsel to the Company, shall have
furnished to the Representative its written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative and its
counsel, with respect to certain corporate matters [and securities law
matters] relating to the Company.
(g) ____________________, special counsel to the Participating
Entities, shall have furnished to the Representative its written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel, with respect to such matters as the
Representative may request.
(h) ____________________, special counsel to the Participating
Entities, shall have furnished its written opinion, dated the Closing Date,
with respect to (i) nonconsolidation under the Bankruptcy Code of the
assets and liabilities of the Sponsor
-14-
SPE on the one hand, and those of either the Sponsor or any other Affiliate
subject to the Bankruptcy Code on the other, in the event the Sponsor or
any such Affiliate were to become the subject of a case under the
Bankruptcy Code, (ii) the characterization of the transfer of the
Receivables from the Sponsor to the Sponsor SPE.
(i) The Representative shall have received an opinion of Xxxxx, Xxxxx
& Xxxxx, counsel to the Underwriters dated the Closing Date, with respect
to the validity of the Securities and such other related matters as the
Representative shall require and the Participating Entities shall have
furnished or caused to be furnished to such counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon such
matters.
(j) The Representative shall have received an opinion addressed to the
Underwriters from counsel to the [Owner] Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and its
counsel.
[(k) The Representative shall have received from counsel for the
Indenture Trustee a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel.]
[(l) ____________________ shall have furnished its written opinion,
dated the Closing Date, that the Trust and the Indenture Trustee will have
a first priority perfected security interest in the Financed Vehicles
located in the State of __________ and such opinion shall be satisfactory
in form and substance to the Representative.]
(m) If any Rating Agency shall have requested any legal opinion,
officer's certificate or other document not required by this Agreement, the
Representative also shall have received such legal opinion, officer's
certificate or other document together with a letter from the party
delivering such opinion, certificate or document allowing the Underwriters
to rely on such opinion, certificate or document as if it were addressed to
the Underwriters.
(n) [The Class A-1 Notes [shall have been rated in the highest
possible short term rating category and the] [,] Class A-2 Notes and Class
A-3 Notes shall have been rated in the highest possible long-term rating
category by each of the Rating Agencies and the Certificates shall have
been rated at least in the "A" category or its equivalent by each of the
Rating Agencies.] [The Class A Certificates shall have been rated in the
highest category, and the Class B Certificates shall have been rated at
least in the "A" category or its equivalent by
_______________________________ and ____________________ _______________,
_____________________________].
-15-
(o) On the Closing Date, the representations and warranties of the
Participating Entities herein and in the Basic Documents will be true and
correct in all material respects.
(p) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of this
Agreement and the Basic Documents shall have been paid by the Participating
Entities at or prior to the Closing Date.
(q) The Participating Entities shall have made or caused to be made a
deposit in the Reserve Account in the amount of the Reserve Account Initial
Deposit.
(r) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been
filed in the offices of the Secretaries of State of [list of filing
locations] reflecting the interest of each of the Company[,] [and] the
Trust [and the Indenture Trustee] in the Receivables, the other Trust
Property and the proceeds thereof.
9. The Company, the Participating Entities and the Underwriters agree to
the following indemnification and contribution provisions:
(a) Each Participating Entity jointly and severally (except as
otherwise set forth at the conclusion of this paragraph) agrees to
indemnify and hold harmless each Underwriter and the Company and each
person, if any, who controls each Underwriter or the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses
reasonably incurred in connection with investigating, preparing or
defending any suit, action or proceeding or any claim asserted), incurred
by such Underwriter or the Company or such controlling person and caused by
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (as amended or supplemented if the
Participating Entities or the Company shall have furnished such amendments
or supplements thereto) [or any preliminary prospectus] [or the ABS
[Security] [Note] Term Sheet,] or caused by any omission or alleged
omission to state therein 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, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and
in conformity with the Underwriter Information or the Company Information;
[provided that the foregoing indemnity with respect to any untrue statement
or omission in [any preliminary prospectus] [the ABS [Security] [Note] Term
Sheet] shall not inure to the benefit of any Underwriter or the Company (or
to the benefit of any person controlling such Underwriter or the Company)
from whom the person asserting any losses, claims or damages purchased
Securities if such untrue
-16-
statement or omission or alleged untrue statement or omission made in [such
preliminary prospectus] [the ABS [Security] [Note] Term Sheet] is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Participating Entities or the Company shall have furnished any amendments
or supplements thereto) and a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to
the written confirmation of the sale of such Securities to such person to
the extent required by law] [, and, provided further, that to the extent
that any such losses, claims, damages or liabilities incurred by such
Underwriter or the Company or such controlling person shall have been
caused by such an untrue statement or alleged untrue statement (i) relating
to Receivables originated by __________ in its capacity as an originator or
as to any such Receivables assigned and sold by __________ to the [Sponsor]
[Sponsor SPE], (ii) with respect to __________ as the [sub]servicer of such
Receivables or relating to any such Receivables [sub]serviced by
__________, or (iii) with respect to __________ as the purchaser of any
such Receivables from the Company or the Trust upon a breach of a
representation, warranty or covenant or as to any Receivables so purchased,
in each case as provided by the applicable Basic Documents, than and in
each such event __________ shall be solely liable to such Underwriter and
the Company and such controlling persons for all such losses, claims,
damages and liabilities incurred by each of them in accordance with the
terms and provisions of this Section 8, and the Sponsor shall not have any
liability whatsoever to such Underwriter or such controlling person for or
to the extent of any such losses, claims, damages or liabilities].
(b) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls each Underwriter within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses reasonably incurred
in connection with investigating, preparing or defending any suit, action
or proceeding or any claim asserted), incurred by such Underwriter or such
controlling person and caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (as
amended or supplemented if the Company shall have furnished such amendments
or supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission in the Prospectus other
than any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with the Company
Information.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Participating Entities and the Company, each director
and officer of the Participating Entities and the Company and each person
who controls any Participating Entity or the Company within the meaning of
Section 15 of the Act or Section 20 of the
-17-
Exchange Act to the same extent as the foregoing indemnity from the
Participating Entities and the Company to each Underwriter, but only with
reference to Underwriter Information delivered by such Underwriter.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
any of the three preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and shall pay the reasonable fees
and expenses of such counsel related to such proceeding; provided that the
failure of the Indemnified Person to give notice shall not relieve the
Indemnifying Person of its obligations under this Section 8 except to the
extent (if any) that the Indemnifying Person shall have been prejudiced
thereby. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred
promptly following submission of a documented request for such
reimbursement. Any such separate firm for the Underwriters and such control
persons of the Underwriters shall be designated in writing by the
Representative, any such separate firm for the Participating Entities,
their directors, officers and control persons shall be designated in
writing by the Sponsor and any such separate firm for the Company, its
directors, officers and control persons shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement
of any claim or proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have made two requests of an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying
Person agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of
-18-
the second aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such requests
prior to the date of such settlement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement
of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second and third
paragraphs of this Section 8 is determined by a court to be unavailable to
an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Indemnified Person on the one hand and the Indemnifying Person on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Indemnified Person on the one hand and the Indemnifying Person on the other
in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Participating Entities on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the
Participating Entities and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public
offering price of the Securities, the relative benefits received by the
Participating Entities on the one hand and the Company on the other shall
be deemed to be in the same respective proportions as the net proceeds from
the offering (before deducting expenses) received by the Participating
Entities and the [transaction fee] received by the Company bear to the
aggregate public offering price of the Securities, the relative benefits
received by the Underwriters on the one hand and the Participating Entities
on the other shall be deemed to be in the same respective proportions as
the total underwriting discounts and the commission received by the
Underwriters and the net proceeds from the offering (before deducting
expenses) received by the Participating Entities bear to the aggregate
offering price of the Securities, the relative benefits received by the
Underwriters on the one hand and the Company on the other shall be deemed
to be in the same respective proportions as the total underwriting
discounts and the commission received by the Underwriters and the
[transaction fee] received by the Company bear to the aggregate offering
price of the Securities, and the relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in
the same respective proportions as the [transaction fee] received by the
Company and the total underwriting discounts and the
-19-
commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Indemnified
Person on the one hand and the Indemnifying Person on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Participating Entities, the Company or by any of the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f) The Participating Entities, the Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, in no event shall [(i)] an Underwriter be
required to contribute any amount in excess of the amount by which the
total underwriting discounts and commissions received by it in connection
with the offering of the [Securities] [Notes] exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission
[or (ii) the Company be required to contribute any amount in excess of the
amount by which the [transaction fee] received by the Company exceeds the
amount of any damages that the Company has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission]. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are
several in proportion to the respective aggregate principal amount of
Securities set forth opposite their names in Schedule I hereto, and not
joint.
(g) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
(h) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Participating
Entities and the Company set forth in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of any
Participating Entity or the Company or any of their officers or directors
or any other
-20-
person controlling any Participating Entity or the Company and (iii)
acceptance of and payment for any of the Securities.
10. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Participating Entities and the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the New York
Stock Exchange or the American Stock Exchange, or there shall have been any
setting of minimum prices for trading on either such exchange; (ii) trading of
any securities of or guaranteed by any Participating Entity shall have been
suspended or halted on any exchange or in any over-the-counter market; (iii) a
moratorium on commercial banking activities in New York, Illinois or __________
shall have been declared by either federal, New York, Illinois or __________
authorities; (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representative is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the
[Securities] [Notes] on the terms and in the manner contemplated in the
Prospectus or enforce contracts for the sale of the [Securities] [Notes]; (v) if
the rating assigned by any nationally recognized securities rating agency (to
which any Participating Entity has applied for such rating) to any debt
securities of or guaranteed by any Participating Entity as of the date hereof
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has placed any debt securities of or guaranteed by
any Participating Entity on what is commonly termed a "watch list" for possible
downgrading; or (vi) if there shall have come to the Representative's attention
any facts that would cause the Representative to reasonably determine in good
faith that the Prospectus, at the time it was required to be delivered to a
purchaser of [Securities] [Notes], contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
11. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any [Securities] [Notes] which it has agreed to purchase hereunder on
such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, and (iii) the aggregate
principal amount of [Securities] [Notes] which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the [Securities] [Notes] to be purchased by the
Underwriters on such date, the other Underwriters shall be obligated to purchase
[Securities] [Notes] which such defaulting Underwriter agreed but failed or
refused to purchase on such date. If on the Closing Date (i) any Underwriter
shall fail or refuse to purchase [Securities] [Notes] which it has agreed to
purchase hereunder on such date, (ii) such failure or refusal shall constitute a
default in the performance of such Underwriter's obligations hereunder, (iii)
the aggregate principal amount of [Securities] [Notes] with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
[Securities] [Notes] to be purchased by the Underwriters on such date, and (iv)
arrangements satisfactory to the non-defaulting Underwriters and the Company for
the purchase of such [Securities] [Notes] are not made within 36 hours after
such default, this
-21-
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or any Participating Entity. In any such case either
the Representative, any Participating Entity or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven business
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
12. If this Agreement shall be terminated by the Underwriters, or any one
of them, because of any failure or refusal on the part of any Participating
Entity to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any Participating Entity shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, in each case, other than in
connection with any default by the Underwriters under the preceding paragraph
eleven, the Participating Entities agree to reimburse the Underwriters,
severally, or such Underwriter which has so terminated this Agreement with
respect to itself, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Underwriter(s) in
connection with this Agreement or the offering contemplated thereunder.
13. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed, delivered by hand or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/o Banc One Capital Markets, Inc., Mail Suite IL1-0596, 0 Xxxx
Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Facsimile No: (___) ___-____), Attention:
____________________. Notices to the Participating Entities shall be given to
them at __________, ____________________ (Facsimile No.: (___) ___-____),
Attention: ____________________. Notices to the Company shall be given to it at
__________, ____________________ (Facsimile No.: (___) ___-____), Attention:
____________________.
14. This Agreement shall inure to the benefit of and be binding upon the
Participating Entities, the Company, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of [Securities] [Notes] from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
15. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
-22-
LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PROVISIONS THEREOF.
[SIGNATURE PAGES FOLLOW]
-23-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Participating Entities and the Underwriters
in accordance with its terms.
Very truly yours,
BOND SECURITIZATION, L.L.C.
By:
--------------------------------------
Name:
Title:
S-1
_______________________________________
By:
---------------------------------------
Name:
Title:
S-2
-----------------------------------------
By:
-----------------------------------------
Name:
Title:
S-3
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
BANC ONE CAPITAL MARKETS, INC.
As Representative
of the Underwriters
By:
----------------------------
Name:
Title:
S-4
SCHEDULE I
Initial Initial Initial
Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3
Asset-Backed Asset-Backed Asset-Backed
Notes Notes Notes
------- ------- -------
$ $ $
$ $ $
================ ================ ================
Total: $ $ $
Purchase Price: % % %
I-1
