Exhibit 0
XXX XXXX XXXXXXXXXXXXXX XXXXXXXXXXX,
XXXXXXXXXX THRIFT & LOAN,
BAY VIEW CAPITAL CORPORATION
AND
PAINEWEBBER INCORPORATED
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
BAY VIEW AUTO TRUSTS
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES
[December , 1996]
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BAY VIEW SECURITIZATION CORPORATION,
CALIFORNIA THRIFT & LOAN
BAY VIEW CAPITAL CORPORATION
0000 XXXXX XX XXXXXX XXXX
XXX XXXXX, XXXXXXXXXX 00000
PaineWebber Incorporated, as
representative of the several
Underwriters named in the
respective Underwriting
Agreements hereinafter described
[December __, 1996]
Dear Sirs:
From time to time, Bay View Securitization Corporation ("BVSC"),
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California Thrift & Loan ("CTL") and Bay View Capital Corporation ("BVCC") may
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enter into one or more underwriting agreements that provide for the sale of
Securities (as defined herein) to you and to such other underwriters as may be
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (each, an "Underwriting
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Agreement"). Any such Underwriting Agreement shall be in the form of Annex I
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hereto, with such additions and deletions as the parties thereto may determine.
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings set forth in the Pooling and Servicing Agreement referred to below.
I.
BVSC proposes to sell to the several underwriters named in the
Underwriting Agreement automobile receivable pass-through certificates (the
"Securities") representing undivided interests in a trust fund including a pool
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of motor vehicle installment sale contracts and/or installment loan contracts
(the "Receivables") secured by new and used automobiles, light trucks,
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motorcycles and vans (the "Financed Vehicles"). The Securities will be issued
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by a trust (the "Trust") pursuant to a pooling and servicing agreement (the
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"Pooling and Servicing Agreement") between BVSC, as depositor, CTL, as servicer
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(in such capacity, the "Servicer") and the bank or trust company or other
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financial institution identified, as trustee (the "Trustee"). The Receivables
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will be sold to BVSC by CTL pursuant to a Receivables Purchase Agreement (the
"Purchase Agreement") between CTL, as seller and BVSC, as purchaser. The terms
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and rights of any particular issuance of Securities shall be as specified in the
Underwriting Agreement relating thereto and in or pursuant to the Pooling and
Servicing Agreement identified in such Underwriting Agreement. The Securities
which are the subject of any particular Underwriting Agreement into which these
Standard Provisions are incorporated are herein referred to as the "Offered
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Securities." This Agreement, the
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Underwriting Agreement, the Pooling and Servicing Agreement and the Purchase
Agreement [ADD ANY CREDIT ENHANCER DOCUMENTS] are hereinafter referred to as the
"Transaction Documents." The Securities will represent undivided interests in a
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trust fund consisting of a pool of the Receivables, all monies due thereunder
after a specified date, security interests in the Financed Vehicles, and other
instruments, funds, and accounts as may be specified in the Pooling and
Servicing Agreement (collectively, the "Trust Fund"). The Securities with
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respect to each Underwriting Agreement and the related Pooling and Servicing
Agreement shall be issued with the title and in the amount set forth in such
Underwriting Agreement.
Particular sales of Securities may be made from time to time to you,
or to the Underwriters named in the Underwriting Agreement, for whom you, or you
together with such other firm or firms specified in the Underwriting Agreement,
will act as representatives (the "Representatives"). The terms
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"Representatives" and "Underwriters" shall mean you in such instances where you
act as sole Underwriter. The standard provisions set forth herein shall not be
construed as an obligation of BVSC to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The
obligation of BVSC to sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Underwriting Agreement with respect to the Securities specified therein. Each
Underwriting Agreement shall specify the aggregate original principal amount of
such Securities or, if applicable, an indication that the offering will be an
at-the-market offering, the purchase by the Underwriters of such Securities, the
names of the Representatives of such Underwriters (if applicable), and the
aggregate original principal amount of such Securities to be purchased by each
Underwriter and shall set forth the date, time, and delivery of such Securities
and the manner of payment therefor. The Underwriting Agreement shall also
specify (to the extent not set forth in the Pooling and Servicing Agreement and
the registration statement and prospectus with respect thereto) the terms of
such Securities. An Underwriting Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
facsimile communications. The obligation of the Underwriters under an
Underwriting Agreement shall be several and not joint.
II.
Representations and Warranties. (1) BVSC represents and warrants to,
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and agrees with, each Underwriter of any Offered Securities as of the date
hereof and as of the date of any Underwriting Agreement that:
(a) A registration statement on Form S-3, including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission (the "Commission"), pursuant to the Securities Act of 1933, as
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amended (the "Act"), which registration statement has become effective and
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copies of which have been heretofore delivered to you. BVSC is eligible to
use Form S-3 in connection with the offer and sale of the Securities.
BVSC, as registrant, will file with the Commission either, prior to
effectiveness of such registration statement, an amendment thereto
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(including the form of final prospectus and prospectus supplement) or,
after effectiveness of such registration statement, a final prospectus
and/or prospectus supplement in accordance with Rules 430A and 424(b)(1) or
(4). As filed, such amendment and form of final prospectus and prospectus
supplement, or such final prospectus and/or prospectus supplement, shall
include all Rule 430A Information (as defined below) and, except to the
extent that the Underwriters shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Underwriters prior to the Execution Time (as defined below) or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectus (as defined below)) as BVSC has advised
the Underwriters, prior to the Execution Time, will be included or made
therein.
As used herein, the term the "Effective Date" shall mean each
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date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
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the date and time that the Underwriting Agreement is executed and delivered
by the parties thereto. "Preliminary Prospectus" shall mean any
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preliminary prospectus and prospectus supplement which has been filed
pursuant to Rule 402(a), Rule 472(a) or Rule 424. "Prospectus" shall mean
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the prospectus and prospectus supplement relating to the Offered Securities
that is filed pursuant to Rule 424(b) in respect of the Offered Securities
including any documents incorporated by reference therein, or if no filing
pursuant to Rule 424(b) is required, shall mean the prospectus and the
prospectus supplement included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration
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statement referred to in the preceding paragraph, as it may be amended,
including incorporated documents, exhibits and financial statements, in the
form in which it was at the latest Effective Time prior to the Closing Date
(as hereinafter defined), inclusive of such incorporated documents,
exhibits, financial statements and any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule 430A
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Information" means information with respect to the Offered Securities and
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the offering thereof permitted to be omitted from the Registration
Statement, at the Effective Date, pursuant to Rule 430A.
(b) On the Effective Date, at the Execution Time, and, when the
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Registration Statement did or will and the Prospectus will,
comply as to form in all material respects with the applicable requirements
of the Act and the rules and regulations of the Commission; on each such
date the Prospectus did not and will not, include any untrue statement of a
material fact and did not and will not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and at each such time the Registration Statement did not and
will not include any untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
statements therein not misleading; provided, however,
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that the foregoing representations and warranties in this Article II(1)(b)
do not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished to BVSC
by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement or the Prospectus. For purposes of this Agreement,
each party acknowledges that the amounts of the selling concession and
reallowance set forth in the Prospectus Supplement constitute the only
information relating to any Underwriter furnished to BVSC by or on behalf
of the Underwriters specifically for inclusion in the Registration
Statement or the Prospectus.
(c) The computer tape of the Receivables underlying the Offered
Securities made available to the Representatives by BVSC was complete and
accurate as of the date that it was delivered to the Representatives and
accurately reflects both the information appearing on the "Schedule of
Receivables" that will be an exhibit to the Pooling and Servicing Agreement
and the description of the Receivables in the related Prospectus
Supplement.
(d) BVSC has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has corporate and
other power and authority to own its properties and conduct its business,
as now conducted by it, and to enter into and perform its obligations under
each Transaction Document to which it is a party.
(e) BVSC is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Prospectus or
for any additional information, (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (iii)
any notification with respect to the suspension of the qualification of the
Offered Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(f) This Agreement has been duly authorized, executed, and
delivered by BVSC and the other Transaction Documents to which it is a
party, when delivered by BVSC, will each have been duly authorized,
executed, and delivered by BVSC, and each such Transaction Document will
constitute a legal, valid, and binding agreement of BVSC, enforceable
against BVSC in accordance with its terms, subject, as to the enforcement
of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, and other similar laws affecting creditors'
rights generally and to general principles of equity (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law).
(g) The Offered Securities and Transaction Documents will conform
in all material respects to the description thereof contained in the
Prospectus and, assuming that the Offered Securities have been duly and
validly authorized, executed, and issued by the Trustee in accordance with
the Pooling and Servicing Agreement, will, when duly and validly
authenticated by the Trustee and delivered to and paid for
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by the Underwriters in accordance with this Agreement and the Underwriting
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
(h) As of the Closing Date, each of the Receivables will meet the
criteria for selection described in the Prospectus, and on such Closing
Date the representations and warranties of BVSC with respect to the
Receivables contained in the Pooling and Servicing Agreement will be true
and correct.
(i) Neither the sale of the Offered Securities, nor the
consummation of any other of the transactions contemplated by, nor the
fulfillment of the terms of, any Transaction Document to which it is a
party, (A) will constitute a breach of any term or provision of the
certificate of incorporation or by-laws of BVSC, or (B) conflict with or
constitute a breach, violation, or acceleration of or a default under the
terms of any indenture or other agreement or instrument to which BVSC is a
party or by which it is bound, or any statute, regulation, or order
applicable to BVSC of any governmental body, administrative agency,
regulatory body, or court having jurisdiction over BVSC or BVSC's material
properties, that materially and adversely affects or would in the future
materially and adversely affect (i) the ability of BVSC to perform its
obligations under any Transaction Document to which it is a party or (ii)
the business, operations, or financial condition, or the material
properties or assets of BVSC. BVSC is not a party to, bound by or in
breach or violation of any indenture or other material agreement or
instrument, or subject to or in violation of any statute, regulation, or
order of any governmental body, administrative agency, regulatory body, or
court having jurisdiction over it, that materially and adversely affects or
would in the future materially and adversely affect (i) the ability of BVSC
to perform its obligations under any Transaction Document to which it is a
party or (ii) the business, operations, or financial condition, or the
material properties or assets of BVSC.
(j) There are no actions or proceedings against, or
investigations of, BVSC pending or, to the knowledge of BVSC, threatened
before any court, administrative agency, or other tribunal (i) asserting
the invalidity of any Transaction Document or the Offered Securities, (ii)
seeking to prevent the issuance of the Offered Securities or the
consummation of any of the transactions contemplated by any Transaction
Document, (iii) that might materially and adversely affect the performance
by BVSC of its obligations under, or the validity or enforceability of, any
Transaction Document or the Offered Securities, (iv) seeking to affect
adversely the federal income tax attributes of the Offered Securities
described in the Prospectus, or (v) that if determined adversely as to BVSC
would have a material adverse effect on the business, operations, or
financial condition or the material properties or assets of BVSC.
(k) There has not been any material adverse change, or
development involving a material adverse prospective change, in the
business, operations, or financial condition or the material properties or
assets of BVSC, taken as a whole, since the formation of BVSC.
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(l) Any taxes, fees, and other governmental charges in connection
with the execution and delivery of any Transaction Document and the
execution, delivery, and sale of the Offered Securities have been or will
be paid at or before the Closing Date.
(m) BVSC is not an "investment company" or under the "control" of
an "investment company," as such terms are defined in the Investment
Company Act of 1940.
(2) BVCC represents and warrants to, and agrees with, each Underwriter
of any Offered Securities as of the date hereof and as of the date of any
Underwriting Agreement that:
(a) BVCC has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has corporate and
other power and authority to own its properties and conduct its business,
as now conducted by it, and to enter into and perform its obligations under
this Agreement [NOTE: TO THE EXTENT THAT THE CREDIT ENHANCER REQUIRES BVCC
TO BE A PARTY TO OTHER DOCUMENTS, THEY WILL ALSO BE INCLUDED].
(b) This Agreement has been duly authorized, executed, and
delivered by BVCC and, when delivered by BVCC, will have been duly
authorized, executed, and delivered by BVCC, and will constitute a legal,
valid, and binding agreement of BVCC, enforceable against BVCC in
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, and other similar laws affecting creditors' rights generally
and to general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law).
(c) The consummation of any of the transactions contemplated by,
or the fulfillment of the terms of, this Agreement (A) will not constitute
a breach of any term or provision of the certificate of incorporation or
by-laws of BVCC, or (B) conflict with or constitute a breach, violation, or
acceleration of or a default under the terms of any indenture or other
agreement or instrument to which BVCC is a party or by which it is bound,
or any statute, regulation, or order applicable to BVCC of any governmental
body, administrative agency, regulatory body, or court having jurisdiction
over BVCC or BVCC's material properties, that materially and adversely
affects or would in the future materially and adversely affect (i) the
ability of BVCC to perform its obligations under this Agreement or (ii) the
business, operations, or financial condition, or the material properties or
assets of BVCC. BVCC is not a party to, bound by or in breach or violation
of any indenture or other material agreement or instrument, or subject to
or in violation of any statute, regulation, or order of any governmental
body, administrative agency, regulatory body, or court having jurisdiction
over it, that materially and adversely affects or would in the future
materially and adversely affect (i) the ability of BVCC to perform its
obligations under
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this Agreement or (ii) the business, operations, or financial condition, or
the material properties or assets of BVCC.
(d) There are no actions or proceedings against, or
investigations of, BVCC pending or, to the knowledge of BVCC, threatened
before any court, administrative agency, or other tribunal (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, (iii) that might
materially and adversely affect the performance by BVCC of its obligations
under, or the validity or enforceability of, this Agreement, or (iv) that
if determined adversely as to BVCC would have a material adverse effect on
the business, operations, or financial condition or the material properties
or assets of BVCC.
(e) There has not been any material adverse change, or
development involving a material adverse prospective change, in the
business, operations, or financial condition or the material properties or
assets of BVCC, taken as a whole, since the end of the most recent fiscal
quarter for which quarterly financial statements were delivered to the
Representatives prior to the date of the related Underwriting Agreement.
(f) Any taxes, fees, and other governmental charges in connection
with the execution and delivery of any Transaction Document have been or
will be paid at or before the Closing Date.
(3) CTL represents and warrants to, and agrees with, each Underwriter
of any Offered Securities as of the date hereof and as of the date of any
Underwriting Agreement that:
(a) The computer tape of the Receivables underlying the Offered
Securities made available to the Representatives by CTL was complete and
accurate as of the date that it was delivered to the Representatives and
accurately reflects both the information appearing on the "Schedule of
Receivables" that will be an exhibit to the Pooling and Servicing Agreement
and the description of the Receivables in the related Prospectus
Supplement.
(b) CTL has been duly incorporated as a corporation and is
validly existing under the laws of the State of California, and has
corporate and other power and authority to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under the Transaction Documents.
(c) This Agreement has been duly authorized, executed, and
delivered by CTL and the other Transaction Documents to which it is a
party, when delivered by CTL, will each have been duly authorized,
executed, and delivered by CTL, and each such Transaction Document will
constitute a legal, valid, and binding agreement of CTL, enforceable
against CTL in accordance with its terms, subject, as to the enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization,
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moratorium, receivership, and other similar laws affecting creditors'
rights generally and to general principles of equity (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law).
(d) The Offered Securities and Transaction Documents will conform
in all material respects to the description thereof contained in the
Prospectus and, assuming that the Offered Securities have been duly and
validly authorized, executed, and issued by the Trustee in accordance with
the Pooling and Servicing Agreement, will, when duly and validly
authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Underwriting
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
(e) As of the Closing Date, each of the Receivables will meet the
criteria for selection described in the Prospectus, and on such Closing
Date the representations and warranties of CTL with respect to the
Receivables contained in the Purchase Agreement will be true and correct.
(f) Neither the sale of the Offered Securities, nor the
consummation of any other of the transactions contemplated by, nor the
fulfillment of the terms of, any Transaction Document to which it is a
party, (A) will constitute a breach of any term or provision of the
certificate of incorporation or by-laws of CTL, or (B) conflict with or
constitute a breach, violation, or acceleration of or a default under the
terms of any indenture or other agreement or instrument to which CTL is a
party or by which it is bound, or any statute, regulation, or order
applicable to CTL of any governmental body, administrative agency,
regulatory body, or court having jurisdiction over CTL or CTL's material
properties, that materially and adversely affects or would in the future
materially and adversely affect (i) the ability of CTL to perform its
obligations under any Transaction Document to which it is a party or (ii)
the business, operations, or financial condition, or the material
properties or assets of CTL. CTL is not a party to, bound by or in breach
or violation of any indenture or other material agreement or instrument, or
subject to or in violation of any statute, regulation, or order of any
governmental body, administrative agency, regulatory body, or court having
jurisdiction over it, that materially and adversely affects or would in the
future materially and adversely affect (i) the ability of CTL to perform
its obligations under any Transaction Document to which it is a party or
(ii) the business, operations, or financial condition, or the material
properties or assets of CTL.
(g) There are no actions or proceedings against, or
investigations of, CTL pending or, to the knowledge of CTL, threatened
before any court, administrative agency, or other tribunal (i) asserting
the invalidity of any Transaction Document or the Offered Securities, (ii)
seeking to prevent the issuance of the Offered Securities or the
consummation of any of the transactions contemplated by any Transaction
Document, (iii) that might materially and adversely affect the performance
by CTL of its obligations under, or the validity or enforceability of, any
Transaction Document or the Offered Securities, (iv) seeking to affect
adversely the federal income tax attributes
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of the Offered Securities described in the Prospectus, or (v) that if
determined adversely as to CTL would have a material adverse effect on the
business, operations, or financial condition or the material properties or
assets of CTL.
(h) There has not been any material adverse change, or
development involving a material adverse prospective change, in the
business, operations, or financial condition or the material properties or
assets of CTL, taken as a whole, since the end of the most recent fiscal
quarter for which [SPECIFY REPORTS/FINANCIAL STATEMENTS FILED WITH A
REGULATORY AGENCY] were delivered to the Representatives prior to the date
of the related Underwriting Agreement.
(i) Any taxes, fees, and other governmental charges in connection
with the execution and delivery of any Transaction Document and the
execution, delivery, and sale of the Offered Securities have been or will
be paid at or before the Closing Date.
III.
Purchase By the Underwriters. The Offered Securities to be purchased
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by the Underwriters pursuant to the Underwriting Agreement relating thereto in
such authorized denominations and registered in such names as the Underwriters
may request upon three full Business Days prior notice to BVSC, shall be
delivered by or on behalf of BVSC to the Representatives for the account of such
Underwriters, against payment by such Underwriters or on such Underwriters'
behalf of the purchase price therefor (i) by wire transfer or by certified or
official bank check or checks, payable to the order of BVSC in immediately
available funds, or (ii) by such other means and in such form as is specified in
the Underwriting Agreement, all at the place, time, and date specified in the
Underwriting Agreement or at such other place, time, and date as the
Underwriters and BVSC may agree upon in writing, such time and date being herein
called the "Closing Date" for such Offered Securities.
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BVSC agrees to have the Offered Securities available for inspection,
checking, and packaging by the Representatives in New York, New York (or such
other location as may be specified by the Representatives) not later than 10:00
A.M. on the Business Day prior to the Closing Date.
IV.
Offering by the Underwriters. BVSC is advised by the Representatives
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that upon the execution of the Underwriting Agreement and authorization by the
Representatives of the release of such Offered Securities, the Underwriters
propose to offer such Offered Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented. BVSC agrees that the
Underwriters are not obligated to make a market in the Offered Securities and
any such market-making may be discontinued at any time in the Underwriters' sole
discretion.
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V.
Agreements. BVSC agrees with each of the Underwriters of any Offered
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Securities that:
(a) BVSC will promptly advise each such Underwriter (i) when
any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by BVSC of any
notification with respect to the suspension of the qualification of the
Offered Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. BVSC will not file any
amendment to the Registration Statement or supplement to the Prospectus
after the date of the Underwriting Agreement and prior to the Closing Date
for such Offered Securities unless BVSC has furnished each such Underwriter
a copy for its review prior to filing and will not file any such proposed
amendment or supplement to which any such Underwriter reasonably objects.
Subject to the foregoing sentence, if required under the Act, BVSC will
cause the Prospectus, as supplemented or amended, to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in timely filing with the Commission
pursuant to said rule. BVSC will use its best efforts to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or
the rules under the Act, BVSC will promptly prepare and file with the
Commission, subject to paragraph (a) of this Article V, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, if such amendment or supplement is
required to be contained in a post-effective amendment to the Registration
Statement, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) BVSC will furnish to the Underwriters, without charge,
executed copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by the Underwriters or a dealer
may be required by the Act, as many copies of the Preliminary Prospectus
and Prospectus, as amended or supplemented, and any amendments and
supplements thereto as the Underwriters may
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reasonably request. BVSC will pay the expenses of printing all offering
documents relating to the offering of the Offered Securities.
(d) BVSC agrees that, so long as the Offered Securities shall
be outstanding, promptly after the availability thereof, it will deliver or
cause to be delivered to the Representatives the annual statement as to
compliance delivered to the Trustee pursuant to the Pooling and Servicing
Agreement, the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to the Pooling and Servicing Agreement,
and the Servicer's Certificate and all monthly reports generated by the
Servicer under the Pooling and Servicing Agreement.
(e) As soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, BVSC will cause the
Trust to make generally available to securityholders of the Trust an
earnings statement of the Trust covering a period of at least 12 months
beginning after the effective date of the Registration Statement which will
satisfy the provisions of Section 11(a) of the Act and, at the option of
BVSC, will satisfy the requirements of Rule 158 under the Act.
(f) BVSC will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Securities for sale (including, but not limited to, such action as
may be required for the qualification or exemption of the sale of the
Offered Securities under state securities or Blue Sky laws) and to
determine their eligibility for investment under the laws of such
jurisdictions as the Underwriters may designate and will maintain such
qualification in effect so long as required for the distribution of the
Offered Securities. BVSC will furnish such information, execute such
instruments and take such action, if any, as the Underwriters may
reasonably request in connection with any filing with the National
Association of Securities Dealers, Inc. relating to the Offered Securities
should the Underwriters determine that such filing is required or
appropriate.
(g) Unless otherwise provided in the related Underwriting
Agreement, BVSC will pay all costs and expenses in connection with the
transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel; the costs and expenses of preparation and
printing (or otherwise reproducing) and delivering each Transaction
Document, and printing or engraving and distributing the Offered
Securities; any transfer taxes relating to the transfer of the Offered
Securities to the Underwriters; accounting fees and disbursements; the
costs and expenses in connection with the qualification or exemption of the
sale of the Offered Securities under state securities or Blue Sky laws and
the determination of their eligibility for investment under state and
federal laws, including filing fees and reasonable fees and disbursements
of counsel in connection therewith; the costs and expenses of the Trustee,
including reasonable fees and disbursements of its counsel; the costs and
expenses of any credit enhancer, including reasonable fees and
disbursements of its counsel; fees and disbursements of the Underwriters'
counsel; the costs and expenses of preparing and distributing any memoranda
concerning the Offered
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Securities' eligibility for investment; the costs and expenses in
connection with the preparation, printing, and filing of the Registration
Statement (including exhibits thereto), Preliminary Prospectus, and the
Prospectus and all amendments and supplements thereto, and the furnishing
to the Underwriters of such copies of each such documents thereto as the
Underwriters may reasonably request; the fees of the rating agency that
initially rates the Offered Securities; and any filing fees of the National
Association of Securities Dealers, Inc. relating to the Offered Securities
should the Underwriters determine that such filing is required or
appropriate.
(h) Each Underwriting Agreement will specify a period of days
beginning from each Effective Date during which neither BVSC nor any
affiliate of BVSC will, without the Underwriters' prior written consent,
enter into any agreement to offer or sell receivables or securities as
identified in such Underwriting Agreement.
(i) So long as any of the Offered Securities are outstanding,
BVSC will furnish to the Underwriters as soon as practicable after the end
of the fiscal year, (i) all documents required to be distributed to
securityholders of the Trust or filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
------------
order of the Commission thereunder and (ii) from time to time, any other
information concerning BVSC filed with any government or regulatory
authority that is otherwise publicly available.
(j) On or before the Closing Date, BVSC and CTL shall cause
their computer records relating to the Receivables to be marked in such a
manner as shall clearly indicate the Trust's absolute ownership of the
Receivables, and from and after the Closing Date BVSC and CTL shall not
take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Pooling and Servicing
Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by the rating agency that initially rates
the Offered Securities is conditional upon the furnishing of documents or
the taking of any other actions by BVSC, BVSC shall, as soon as
practicable, furnish such documents and take any such other actions.
VI.
Conditions to the Obligations of the Underwriters. The obligation of the
-------------------------------------------------
Underwriters of any Offered Securities under the Underwriting Agreement to
purchase the Offered Securities shall be subject to the accuracy of the
representations and warranties on the part of BVSC, BVCC and CTL contained
herein as of the date hereof and the Closing Date, to the accuracy of the
statements of BVSC made in any certificates pursuant to the provisions hereof,
to the performance by BVSC of its obligations hereunder and to the following
additional conditions with respect to the Offered Securities:
-12-
(a) The Registration Statement shall have become effective not
later than 4:00 p.m., New York City time, on the day following the
Effective Date; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and, if required, the
Prospectus shall have been timely filed with the Commission pursuant to
Rule 424(b) under the Act.
(b) The Underwriters shall have received from Silver, Xxxxxxxx
& Taff, L.L.P., counsel for BVSC and CTL and such other counsels admitted
in the appropriate jurisdictions acceptable to the Representative,
favorable opinions, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters, to the effect set forth in
Exhibit A. Such opinions (a) may express reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to the Transaction
Documents, (b) may assume the due authorization, execution, and delivery of
the instruments and documents referred to therein by the parties thereto
other than CTL, BVSC and their respective affiliates, and (c) to the extent
such opinion relates to law other than the laws of the State of New York
and the federal laws of the United States, may rely on a favorable opinion
of local counsel satisfactory to the Representatives, dated the Closing
Date, and satisfactory in form and substance to counsel for the
Underwriters.
(c) Silver, Xxxxxxxx & Xxxx, L.L.P. and/or such other counsels
will also deliver opinions to the Underwriters, dated the Closing Date and
satisfactory in form and substance to counsel for the Underwriters with
respect to certain insolvency and Uniform Commercial Code matters
substantially to the following effect: (i) that if BVCC were to become a
debtor under the United States Bankruptcy Code (the "Bankruptcy Code"),
---------------
that a court would not disregard the separate corporate existence of BVSC
so as to order substantive consolidation of the assets and liabilities of
BVSC with those of BVCC, (ii) that if the FDIC were to be appointed
receiver or conservator for CTL, that a court would not disregard the
separate corporate existence of BVSC so as to include the assets and
liabilities of BVSC with those of the CTL receivership or conservatorship
estate or otherwise impair the enforceability of the Pooling and Servicing
Agreement by the Trustee, (iii) that if the FDIC were to be appointed
receiver or conservator for CTL, a court would hold that the Receivables
and proceeds thereof are not property of the receivership or
conservatorship estate of CTL and (iv) that (x) if BVSC were to become a
debtor under the Bankruptcy Code, a court would hold that the Receivables
and proceeds thereof are not property of the estate of BVSC under the
Bankruptcy Code and that the automatic stay provisions under the Bankruptcy
Code are not applicable to payments of the Offered Securities or (y)
notwithstanding clause (x), if a court were to so conclude that the
Receivables are property of the estate of BVSC, the Trustee has a first
perfected security interest in the Receivables and the proceeds thereof.
(d) For each State for which the Receivables constitute
________ or more of the initial principal balance of a Receivables included
in the Trust Fund, the
-13-
Underwriters shall have received from legal counsel to BVSC admitted in the
appropriate jurisdictions acceptable to the Representative, favorable
opinions, dated the Closing Date and satisfactory in form and substance to
the counsel for the Underwriters that (i) the Servicer is qualified (or
otherwise exempt from qualification) to transact business in such state and
holds all necessary licenses to transact its business in such state, (ii)
that BVSC and the Trust need not qualify to do business in such state and
need not obtain any licenses to transact its business in such state, (iii)
that the Receivables originated in such state are "chattel paper" under the
Uniform Commercial Code in such state, (iv) the procedures followed by CTL
in such state are sufficient to give CTL a first perfected security
interest in the Financed Vehicles originated in such state, (v) after
giving effect to the transactions contemplated by the Purchase Agreement
and the Pooling and Servicing Agreement, the Trustee will have a first
perfected security interest in the Financed Vehicles, (vi) that the forms
of receivables used in such state are enforceable under the laws of such
state and are otherwise in compliance with such state's consumer protection
laws and (vii) that the statements in the Prospectus under "Certain Legal
Aspects of the Receivables" insofar as they relate to the laws of such
state are true and correct in all material respects.
(e) The Underwriters shall have received from counsel for the
Underwriters, a favorable opinion, dated the Closing Date and satisfactory
in form and substance to the Underwriters, with respect to the issuance and
sale of the Securities, certain matters with respect to the Registration
Statement and the Prospectus and such other matters as the Underwriters may
require.
(f) The Underwriters shall have received on the Closing Date,
addressed to the Underwriters and dated the Closing Date, any opinion
delivered to the rating agency or credit enhancer in connection with its
rating of the Offered Securities.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, to the effect set forth
in Exhibit B.
(h) The Underwriters shall have received a favorable opinion
addressed to the Underwriters from counsel for the third party credit
enhancer, if any, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters.
(i) The Offered Securities shall be rated in the highest
category by a nationally recognized rating agency or such other category as
shall be designated in the Underwriting Agreement. Further, subsequent to
the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have
been given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate the direction of a possible
change, in the rating accorded (i) the Offered Securities by any nationally
recognized rating agency which rates the Offered Securities, (ii) any rated
debt
-14-
instrument issued by BVSC or (iii) any rated debt instrument issued by the
third party credit enhancer, if any.
(j) BVSC, CTL and BVCC will enter into each Transaction
Document to which it is a party at or before the Closing Date and, when
delivered by BVSC, CTL and BVCC as the case may be, each such Transaction
Document will have been duly authorized, executed, and delivered by such
entity and will constitute the legal, valid, and binding agreement of such
entity.
(k) Each of CTL and BVSC shall have delivered to the
Underwriters a certificate, dated the Closing Date, of the President or a
Vice President to the effect that the signer of such certificate has
carefully examined each Transaction Document and to the effect that: (i)
the representations and warranties of such entity contained in such
agreements are true and current in all material respects at and as of the
Closing Date with the same effect as if made at the Closing Date, (ii) such
entity has complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date, (iii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such entity's knowledge threatened,
(iv) there shall have been no material adverse change in the condition of
such entity, from that set forth in the Registration Statement, (v) nothing
has come to his attention that would lead him to believe that the
Prospectus or Registration Statement contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, (vi) such entity has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its organization with corporate and other power and
authority to own its properties and conduct its business, as now conducted
by it, and to enter into and perform its obligations under each Transaction
Document, (vii) each Transaction Document has been duly authorized,
executed, and delivered by such entity, (viii) the fulfillment of the terms
of each Transaction Document will not constitute a material breach of any
term or provision of the charter or by-laws of such entity, or conflict
with or constitute a material breach, violation, or acceleration of or a
default under, the terms of any indenture or other material agreement or
instrument to which such entity is a party, and (ix) such entity is not a
party to, bound by, or in breach or violation of any indenture or other
material agreement or instrument, or subject to or in violation of any
statute, regulation, or order of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over such entity,
that materially and adversely affects or would in the future materially and
adversely affect the business, operations, or financial condition or the
material properties or assets of such entity.
(l) The Underwriters shall have received from independent
accountants of BVSC, one or two letters, one such letter dated the date of
the Prospectus relating to such Offered Securities and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, and a
second letter, if necessary,
-15-
dated the Closing Date, as to such matters as the Underwriters may
reasonably request in form and substance satisfactory to the Underwriter
and counsel to the Underwriters, provided by BVSC.
(m) All proceedings in connection with the transactions
contemplated by the Offered Certificates, each Transaction Document and all
documents incident hereto or thereto shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates, opinions, and documents as the Underwriters may
reasonably request.
VII.
Reimbursement of Underwriters' Expenses. If the sale of any Offered
---------------------------------------
Securities provided for in the Underwriting Agreement relating thereto is not
consummated because any condition to the obligations of the Underwriters set
forth in Article VI hereof is not satisfied or because of any refusal,
inability, or failure on the part of BVSC or CTL to perform any agreement herein
or therein or comply with any provision hereof, other than by reason of a
default by the Underwriters, BVSC, CTL and BVCC, jointly and severally will
reimburse the Underwriters upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed purchase and sale
of such Offered Securities.
VIII.
Indemnification and Contribution. (a) CTL, BVSC and BVCC, jointly and
--------------------------------
severally, agree to indemnify and hold harmless the Underwriters and each person
who controls any Underwriter within the meaning of the Act or the Exchange Act
from and against any and all losses, claims, damages, or liabilities, joint or
several, to which the Underwriters may become subject under the Act, the
Exchange Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) arise out of or are based upon any untrue
statement of a material fact or omission or alleged omission to state a material
fact contained in the Prospectus (together with any supplement thereto)
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, on the Effective Date,
if not filed pursuant to Rule 424(b), and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date; and agree to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action, as such expenses are incurred; provided, however, that
-------- -------
neither CTL, BVSC nor BVCC will be liable in any such case to the
-16-
extent that any such loss, claim, damage, or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance on and in conformity with information
furnished in writing to CTL, BVSC and/or BVCC as herein stated by or on behalf
of the Underwriters specifically for use in connection with the preparation
thereof. This indemnity agreement will be in addition to any liability that CTL,
BVSC and BVCC may otherwise have.
(b) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless CTL, BVSC and BVCC, its directors, each of CTL's,
BVSC's and BVCC's officers who sign the Registration Statement, and each person,
if any, who controls CTL, BVSC and BVCC within the meaning of the Act, to the
same extent as the foregoing indemnity from CTL, BVSC and BVCC to the
Underwriters, but only insofar as such losses, claims, damages, or liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission that was made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, as amended or supplemented, or any
amendment or supplement thereto, in reliance on and in conformity with
information furnished in writing to CTL, BVSC and/or BVCC as herein stated by or
on behalf of the Underwriters specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability that the Underwriters may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraphs (a) or (b), such person (the
"indemnified party") shall promptly notify the person against whom such
-----------------
indemnity may be sought (the "indemnifying party") in writing and the
------------------
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party 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 party
shall not, in connection with any proceeding or related proceedings 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 such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by PaineWebber Incorporated in the case of parties
indemnified pursuant to paragraph (a) of this Article VIII and by BVCC in the
case of parties indemnified pursuant to paragraph (b) of this Article VIII. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have
-17-
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this paragraph, the
indemnifying party 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 calendar days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under paragraphs (a) or (b) of this Article
VIII or is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by CTL, BVSC and/or BVCC on the one hand, and the Underwriters
on the other, from the offering of the Offered 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) but also the relative fault of CTL, BVSC and BVCC on
the one hand, and the Underwriters on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by CTL, BVSC and BVCC on the one hand, and the
Underwriters on the other, in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by CTL, BVSC and BVCC bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of CTL, BVSC and/or BVCC on the one hand, and the Underwriters 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 CTL, BVSC
and/or BVCC or the Underwriters and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission.
(e) CTL, BVSC, BVCC and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Article VIII were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party 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 reasonably incurred by such indemnified
party in connection with investigating
-18-
or defending any such action or claim. Notwithstanding the provisions of this
Article VIII, no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts received by it. 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 Article VIII are several, in proportion to the respective
principal amounts of Offered Securities purchased by each of such Underwriters
(as defined in the Agreement Among Underwriters), and not joint.
IX.
Termination. This Agreement and each Underwriting Agreement shall be
-----------
subject to termination in your absolute discretion, by notice given to BVSC, if
(a) 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, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) the events specified in clause (a) singly or
together with any other such event makes it, in your judgment, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
X.
Substitution Of and Default By An Underwriter. If, on the Closing Date,
---------------------------------------------
any one or more of the Underwriters shall fail or refuse to purchase the Offered
Securities which it or they have agreed to purchase under the Underwriting
Agreement relating thereto, and the aggregate principal amount of the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Offered Securities to which such Underwriting Agreement relates,
the other Underwriters shall be obligated severally in the proportions which the
amounts of such Offered Securities set forth opposite their names in such
Underwriting Agreement bear to the aggregate principal amount of such Offered
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase; provided that in no event shall the principal
amount of the Offered Securities which any Underwriter has agreed to purchase
hereunder be increased pursuant to this Article X by an amount in excess of one-
ninth of such principal amount of such Offered Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase the Offered Securities which it or
they agreed to purchase hereunder and the aggregate principal amount of the
Offered Securities which such defaulting Underwriter or
-19-
Underwriters agreed but failed or refused to purchase is more than one-tenth of
the aggregate principal amount of the Offered Securities to which such
Underwriting Agreement relates and arrangements satisfactory to the
Representatives and BVSC for the purchase of such Offered Securities are not
made within 36 hours after such default, such Underwriting Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or of
CTL, BVCC or BVSC. In any such case either the Representatives or BVSC shall
have the right to postpone the Closing Date, but in no event for longer than
seven 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
affected. Any action taken under this Article X or any such termination shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement or such Underwriting Agreement.
XI.
Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities, and other statements of CTL, BVSC or
BVCC or on their behalf by its officers and the Underwriters set forth in or
made pursuant to this Agreement and each Underwriting Agreement will remain in
full force and effect, regardless of any investigation made by the Underwriters
or on the Underwriters' behalf, CTL, BVSC or BVCC or any of the officers,
directors, or controlling persons referred to in Article VIII hereof, and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections V(g), VII, and VIII hereof shall survive the termination or
cancellation of this Agreement or any Underwriting Agreement.
XII.
Notices. All communications hereunder or under any Underwriting
-------
Agreement will be in writing and effective only on receipt, mailed, delivered or
sent by facsimile and reconfirmed by telephone to the following parties at the
following addresses and telephone numbers:
Bay View Capital Corporation
0000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: [______________]
Telephone: [______________]
Facsimile: [______________]
California Thrift & Loan
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: [______________]
Telephone: [______________]
Facsimile: [______________]
Bay View Securitization Corporation
0000 Xxxxx Xx Xxxxxx Xxxx
-00-
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (415)
-----------
PaineWebber Incorporated
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XIII.
Successors. None of the obligations of CTL, BVSC or BVCC under this
----------
Agreement or any Underwriting Agreement may be assigned without the prior
consent of the Representatives. Subject to the foregoing, this Agreement and
each Underwriting Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors
and controlling persons referred to in Article VIII hereof, and their successors
and assigns, and no other person will have any right or obligation hereunder.
XIV.
Applicable Law. This Agreement and each Underwriting Agreement will be
--------------
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed therein. This Agreement and
any Underwriting Agreement may be executed in any number of counterparts, each
of which shall for all purposes be deemed to be an original and all of which
shall together constitute but one and the same instrument.
XV.
Headings. The headings used in this Agreement are for convenience of
--------
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
-21-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between CTL, BVSC
and BVCC and you.
Very truly yours,
BAY VIEW SECURITIZATION CORPORATION
By:
-------------------------------
Name:
Title:
BAY VIEW CAPITAL CORPORATION
By:
-------------------------------
Name:
Title:
CALIFORNIA THRIFT & LOAN
By:
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PAINEWEBBER INCORPORATED
By:
-------------------------------
Name:
Title:
-22-
EXHIBIT A
OPINION OF COUNSEL FOR BAY VIEW SECURITIZATION CORPORATION
(i) BVSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Offered Securities and
each Transaction Document and had at all times relevant to each such agreement
and now has requisite power, authority and legal right to acquire, own and sell
the Receivables.
(ii) CTL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under each Transaction Document
and had at all times relevant to each such agreement and now has the power,
authority and legal right to originate, acquire, own, and sell the Receivables.
(iii) To such counsel's knowledge, each of BVSC and CTL is duly qualified
to do business and in good standing and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to obtain such
license or approval would have a material adverse effect on the transactions
contemplated by the Offered Securities and each Transaction Document or would
render any Receivable unenforceable by CTL, BVSC or the Trustee on behalf of any
holder of the Offered Securities.
(iv) The Registration Statement (which for purposes of such opinion shall
not be deemed to include any exhibits filed therewith) has become effective
under the Act and, to such counsel's knowledge, no proceedings for a stop order
have been instituted or are threatened therefor by the Commission.
(v) The Registration Statement, as of the Effective Date, and the
Prospectus, as of the date thereof complied as to form in all material respects
with the requirements of the Act and the rules thereunder.
(vi) The conditions to the use by BVSC of a registration statement on Form
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.
(vii) Each Transaction Document has been duly authorized, executed, and
delivered by each of CTL and BVSC and each constitutes a legal, valid, and
binding agreement of each of CTL and BVSC, enforceable against each of CTL and
BVSC in accordance with its respective terms, except (i) as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, receivership,
or other similar laws affecting the enforcement of creditors' rights in general
and may be further limited by the
A-1
exercise of judicial discretion in applying principles of equity, including (but
not limited to) the availability or effects of a preliminary injunction, a
restraining order, or specific performance (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and (ii) the
enforcement of certain provisions respecting indemnification and contribution
may be limited by applicable law or public policy.
(viii) To such counsel's knowledge, neither CTL nor BVSC is in violation of
its respective certificate of incorporation or bylaws or in default under any
agreement, indenture or instrument the effect of which violation or default
would have a material adverse effect on the transactions contemplated by the
Offered Securities and the Transaction Documents or would render any Receivable
unenforceable by CTL, BVSC or the Trustee on behalf of the Trust.
(ix) Neither BVSC nor the Trust Fund is an "investment company" or under
the "control" of an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(x) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund is not
required to be registered under the Investment Company Act of 1940, as amended.
(xi) No registration with or consent, approval, authorization or order of
any Federal court or governmental agency or body is required for the
consummation by each of CTL and BVSC of the transactions contemplated by the
Agreement or the Underwriting Agreement, except such as may be required under
the Securities Act of 1933, as amended, and the Blue Sky laws of any
jurisdiction in connection with the offer and sale of the Offered Securities.
(xii) The execution and delivery of each Transaction Document, sale of the
Offered Securities to the Underwriters pursuant to the Agreement and the
Underwriting Agreement, the transfer of the Receivables, the assignment of the
security interest in the Financed Vehicles, to BVSC and by BVSC to the Trustee
acting on behalf of the Trust, and the consummation of the other transactions
contemplated by the Offered Securities and each Transaction Document do not
constitute a breach or violation of any term or provision of, or a default
under, the Charter or Certificate of Incorporation or By-laws of BVSC or CTL, or
any State or Federal statute or regulation known to such counsel to be
applicable to BVSC or CTL or, to the best knowledge of such counsel, any order
of any State or Federal court, regulatory body, administrative agency or
governmental body having jurisdiction over BVSC or CTL, or, to the best
knowledge of such counsel, any indenture or other material agreement or
instrument to which BVSC or CTL is a party or by which either of them is bound.
(xiii) No filing or other action other than the filing of the Uniform
Commercial Code financing statements (i) naming CTL as seller and BVSC as buyer
and (ii) naming BVSC as seller and the Trustee as buyer, which have been
completed and filed in the appropriate filing office, is necessary to perfect
the sale and transfer of the Receivables (i) by CTL to BVSC and (ii) by BVSC to
the Trustee acting on behalf of the Trust; provided,
--------
A-2
however, that any such transfer may be subject to the rights of purchasers who
-------
take possession of any of the Receivables for value in the ordinary course of
business without knowledge of the transfer to the Trustee.
(xiv) The Offered Securities have been duly authorized by BVSC and
assuming that the Offered Securities are duly executed, authenticated, and
delivered by the Trustee as specified in the Pooling and Servicing Agreement and
are issued and delivered to, and paid for by, the Underwriters pursuant to this
Agreement and the Underwriting Agreement, will be validly issued and
outstanding, will evidence valid ownership interests in the Trust Fund, and will
be entitled to the benefits of the Pooling and Servicing Agreement.
(xv) BVSC has the corporate power and authority to assign and deliver the
Trust Fund to the Trustee under the Pooling and Servicing Agreement in exchange
for the Offered Securities, has duly authorized such assignment and delivery to
the Trustee by all necessary action on the part of BVSC, and the Trust Fund has
been duly and validly assigned and delivered by BVSC to the Trustee under the
Pooling and Servicing Agreement.
(xvi) The statements in the Prospectus under the captions "Summary of
Terms," "Risk Factors--Certain Legal Aspects--Security Interests in Financed
Vehicles," "Risk Factors--Certain Legal Aspects," "The Trusts," "The Receivables
Pools," "Pool Factors and Other Certificate Information" and "Description of the
Certificates," "Description of the Transfer and Servicing Agreements," and in
the Prospectus Supplement under the captions ["Summary of Terms," "Formation of
the Trust," "The Trust Property," "The Receivables Pool," "Yield
Considerations," "Certificate Factors and Other Certificate Information," "Use
of Proceeds," "Bay View Capital Corporation and Affiliates," "The Certificates,"
and "Certain Legal Aspects of the Receivables,"] insofar as such statements
constitute a summary of the Offered Securities and Transaction Documents or
other documents, and matters of law, summaries of legal matters or legal
conclusions, have been reviewed by such counsel and are accurate in all material
respects.
(xvii) The statements in the Prospectus under the captions "Certain Federal
Income Tax Consequences" (including the description of such counsel's opinion
expressed therein) and "ERISA Considerations" and in the Prospectus Supplement
under the captions ["Summary of Terms -- Tax Status," "Certain Federal Income
Tax Consequences" (including the description of such counsel's opinion expressed
therein) "Summary of Terms -- ERISA Considerations," and "ERISA Considerations"]
insofar as such statements constitute a summary of matters of law, summaries of
legal matters, or legal conclusions, have been reviewed by such counsel and are
accurate in all material respects.
(xviii) To such counsel's knowledge and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental proceedings
pending, threatened, or contemplated to which BVSC or CTL is a party or by which
any property of BVSC or CTL is the subject (A) asserting the invalidity of the
Offered Securities or any Transaction Document, (B) seeking to prevent the
issuance of the Offered Securities or the consummation of any of the
transactions contemplated by the Offered Securities or any Transaction Document,
or (C)
A-3
which, if determined adversely to BVSC or CTL, would individually or in
the aggregate have a material adverse effect on (1) the ability of BVSC or CTL
to perform its obligations under the Offered Securities or any Transaction
Document, or (2) the business, operations, financial condition, properties or
assets of BVSC or CTL.
(xix) Each of this Agreement and the Underwriting Agreement has been duly
authorized, executed, and delivered by BVCC and each such agreement constitutes
a legal, valid, and binding agreement of BVCC, enforceable against BVCC in
accordance with its respective terms, except (i) as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, receivership, or
other similar laws affecting the enforcement of creditors' rights in general and
may be further limited by the exercise of judicial discretion in applying
principles of equity, including (but not limited to) the availability or effects
of a preliminary injunction, a restraining order, or specific performance
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and (ii) the enforcement of certain provisions respecting
indemnification and contribution may be limited by applicable law or public
policy.
Such counsel shall also state that, during the preparation of the
Registration Statement and the Prospectus, including amendments and supplements
thereto, such counsel participated in conferences with officers and other
representatives of CTL, BVSC, their respective accountants, the Underwriters and
counsel for the Underwriters and that, while such counsel has not undertaken to
determine independently, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement the Prospectus (and amendments and supplements thereto)
on the basis of such conferences and such counsel's review of the documents
referenced in such counsel's opinion, no facts have come to the attention of
such counsel that have caused such counsel to believe that (1) the Registration
Statement contained, at the Effective Date, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) the Prospectus
contained on the date thereof, at the Effective Time or contains, as amended or
supplemented, if applicable, on the Closing Date, an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (3) there are any material contracts, indentures,
or other documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration Statement
other than those described therein or so filed.
A-4
EXHIBIT B
OPINION OF COUNSEL FOR THE TRUSTEE
(i) the Trustee has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate or other) and to enter
into, and to take all action required of it under, the Pooling and Servicing
Agreement;
(ii) the Pooling and Servicing Agreement has been duly authorized,
executed, and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee in accordance
with its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, and other similar laws affecting the
enforcement of creditors' rights generally, as such laws would apply in the
event of a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Trustee, and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Trustee has duly executed the Offered Securities on behalf of
the Trust;
(iv) the Trustee has duly authenticated and delivered the Offered
Securities;
(v) the execution and delivery of the Pooling and Servicing Agreement by
the Trustee and the performance by the Trustee of its terms do not conflict with
or result in a violation of (A) any law or regulation of the United States of
America or the State of [New York] governing the banking or trust powers of the
Trustee, or (B) the Charter or By-laws of the Trustee; and
(vi) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of [New
York] having jurisdiction over the banking or trust powers of the Trustee is
required in connection with the execution and delivery by the Trustee of the
Pooling and Servicing Agreement or the performance by the Trustee of the terms
of the Pooling and Servicing Agreement.
B-1
ANNEX I
[FORM OF UNDERWRITING AGREEMENT]
BAY VIEW SECURITIZATION CORPORATION
CALIFORNIA THRIFT & LOAN
BAY VIEW CAPITAL CORPORATION
AND
PAINEWEBBER INCORPORATED
UNDERWRITING AGREEMENT
FOR
BAY VIEW 199_-_ AUTO TRUST
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES
_________, 199_
___________ ___, 199__
Bay View Capital Corporation
0000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
California Thrift & Loan
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Bay View Securitization Corporation
0000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Dear Sirs:
We understand that Bay View Securitization Corporation, a Delaware corporation
("BVSC"), proposes to sell $_______________ aggregate amount of Certificates
----
designated "[ ] Automobile Receivable Pass-Through
Certificates, Series 199_-_" (the "Offered Securities"), issued by Bay View
------------------
199_-_ Auto Trust. Subject to the terms and conditions set forth in or
incorporated by reference in this Underwriting Agreement (this "Agreement"),
---------
[we] [the Underwriters named on page __ of the copy of the Prospectus attached
hereto as Annex A (such Underwriters being herein called the "Underwriters")]
hereby agree severally and not jointly to purchase all of the Offered
Securities. The price at which the Offered Securities are offered to the
public, the underwriting discount on the Offered Securities and the purchase
price at which [we] [the Underwriters] will purchase the Offered Securities are
set forth on the following grid. Accrued interest from _______________ to the
date of payment and delivery of the Offered Securities pursuant to the following
paragraph will be added to the purchase price.
=====================================================================================
Price to Public Underwriting Discount Purchase Price
-------------------------------------------------------------------------------------
[Per Class A Certificate] % 0.275% %
-------------------------------------------------------------------------------------
[Per Class I Certificate] 0.500%
-------------------------------------------------------------------------------------
Total $ $ $
=====================================================================================
I-1
We [the Underwriters] will pay for the Offered Securities in immediately
available funds upon delivery of the Offered Securities to or at the offices of
__________________, or at such other location as shall be designated by [us]
[the Underwriters], at _____ A.M. (New York time) on ____________, 199_, or at
such other time, not later than ____________, 199_, as shall be designated by
[us] [the Underwriters] (such time, the "Closing Date").
Pursuant to Article V(h) of the Standard Provisions (as defined below),
during a period of ________ calendar days from ______________, neither BVSC nor
any affiliate of BVSC will, without [our] [the Underwriters'] prior written
consent, enter into any agreement to offer or sell the Offered Securities.
The Offered Securities shall have the terms set forth in the copy of the
Prospectus attached hereto as Annex A and shall conform in all material respects
to the description thereof contained in such Prospectus.
All the provisions contained in that certain Underwriting Agreement
Standard Provisions for Bay View Auto Trusts, Automobile Receivable Pass-Through
Certificates, dated [November __, 1996] (the "Standard Provisions"), by and
among Bay View Capital Corporation, California Thrift & Loan, Bay View
Securitization Corporation and PaineWebber Incorporated, a copy of which you
have previously received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. [All references to the
"Underwriters," the "several Underwriters" or the "Representative" in the
Standard Provisions shall be deemed to refer to [ ], the sole Underwriter
hereunder.]
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Please confirm your agreement by having authorized officers sign a copy of
this Agreement in the spaces set forth below and returning the signed copy to
us.
Very truly yours,
PAINEWEBBER INCORPORATED,
as Underwriter
By:
------------------------------
Name:
Title:
Accepted:____________, 199__
BAY VIEW SECURITIZATION CORPORATION
By:
------------------------------
Name:
Title:
BAY VIEW CAPITAL CORPORATION
By:
------------------------------
Name:
Title:
CALIFORNIA THRIFT & LOAN
By:
------------------------------
Name:
Title:
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ANNEX A
[Copy of Prospectus]
I-4
