EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
Bond Securitization, L.L.C.
Settlor and Depositor
[Name of ABS]
Series _____ - _____
[Class ______ Notes]
[Class ______ Notes]
[Class _______ Certificates]
[Class _______ Certificates]
------- ----, -----
X.X. Xxxxxx Securities Inc.
[As Representative of the
Several Underwriters]
[-----------------
---------------------]
Ladies and Gentlemen:
Bond Securitization, L.L.C., a Delaware limited liability company (the
"Company"), proposes to cause [Name of Trust] (the "Trust") to issue and sell of
$________ in aggregate stated amount of [Name of ABS] Notes [, Class ____ and
Class ____] ([collectively,] the "Notes") and of $________ in aggregate stated
amount of [Name of ABS] Certificates [, Class ___ and Class ___]
([collectively,] [except for a de minimis portion of the Class ___
Certificates,] the "[Certificates] [Securities]") pursuant to [a] [the] [Trust
Agreement] [[Master] Pooling and Servicing Agreement] [Standard Terms and
Conditions of Pooling and Servicing] [, as supplemented by a [Series Supplement]
[Reference Agreement]] ([as so supplemented,] the "[Trust] [Pooling and
Servicing] Agreement") [each] dated as of [date] [each] [between] [among] the
Company [, __________________, as servicer (the "Servicer")] and
[_________________] as trustee (the "Trustee") and will evidence beneficial
interests in the Trust. [The Notes will be issued pursuant to an Indenture dated
as of [date] between the Trust and _____________, as trustee (the "Indenture
Trustee") and will represent obligations of the Trust. The assets of the Trust
consist primarily of a pool of [previously issued securities backed by] [motor
vehicle loan agreements and motor vehicle retail installment sale contracts, in
each case secured by new and used automobiles, vans and light duty trucks,
security interests in the vehicles financed thereby] and certain monies due
thereunder (the "Trust Assets"). The Notes and the Certificates are herein
collectively referred to as the "Securities".
The Company proposes to sell the Securities to you [and to each of the
other several underwriters participating in an underwriting syndicate managed by
you]. Underwritten offerings of Securities may be made by you or by an
underwriting syndicate managed by you (as used in this Agreement, references to
"you" shall mean the firm or firms acting as sole underwriter(s) or as
representative(s) of a group of underwriters of such offering).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-____) for the
registration of the Securities under the Securities Act of 1933 (the "1933
Act"), including a related form of prospectus and related form of prospectus
supplement. Such registration statement was declared effective on _____________.
Such registration statement, as from time to time amended, including all
exhibits thereto, is hereinafter referred to as the "Registration Statement".
The form of prospectus that appears in the Registration Statement, as such
prospectus is amended from time to time, is hereinafter referred to as the
"Basic Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement relating to the Securities, in the form in which, as so supplemented,
it shall be filed with the Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter referred to as the "Final Prospectus". "Preliminary Prospectus"
shall mean the Basic Prospectus, as supplemented by the preliminary prospectus
supplement which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Free Writing Prospectus" shall mean a
"free-writing prospectus," as defined pursuant to Rule 405 under the 1933 Act,
and "Trust Free Writing Prospectus" shall mean any Free Writing Prospectus that
is included in the Time of Sale Information. "Effective Time" means, with
respect to the Registration Statement, the date and time as of which such
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Prospectus"
shall mean the prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if no filing pursuant to Rule 424(b) is required, shall mean the
prospectus supplement relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective Date. "Rule
430A Information" means information with respect to the Securities and the
offering of the Securities permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A under the 1933 Act.
At or prior to [ : ] [am][pm] on [date] (the "Time of Sale"), the Company
had prepared the Preliminary Prospectus [and [DESCRIBE ANY FREE WRITING
PROSPECTUS]] ([collectively,] the "Time of Sale Information"). If, subsequent to
the date of this Agreement, the Company and the Underwriters determine that such
information included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and the
Underwriters advise the Company that the Underwriters have reformed the purchase
contracts with investors of the Securities, then "Time of Sale Information" will
refer to the information available to purchasers at the time of entry into the
first reformed purchase contract, including any information that corrects such
material misstatements or omissions (such new information, the "Corrective
Information").
The Company, hereby agrees with you [and the several Underwriters named in
Schedule A hereto (collectively,] [(] the "Underwriter[s]") as follows:
SECTION 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, and to each Underwriter named on Schedule
A hereto, as follows:
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(a) The Company meets the requirements for use of Form S-3 under the 1933
Act, and has filed with the Commission the Registration Statement on such Form,
including a preliminary basic prospectus and a preliminary prospectus supplement
for registration under the 1933 Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto as may have been
required to the date hereof, each of which amendments has been previously
furnished to you. The Company will next file with the Commission one of the
following: (i) prior to the effectiveness of such registration statement, an
amendment thereto (including the form of final basic prospectus and the form of
final prospectus supplement relating to the Securities), (ii) after
effectiveness of such registration statement, a final basic prospectus and a
final prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4) under the 1933 Act, or (iii) after the effectiveness
of such registration statement, a final basic prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 415 and 424(b)(2)
or (5) under the 1933 Act. In the case of clauses (ii) and (iii), the Company
has included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and the
Rules thereunder to be included in the Prospectus with respect to the Securities
and the offering thereof. As filed, such amendment and form of final prospectus
supplement, or such final prospectus supplement, shall include all Rule 430A
Information, together with all other such required information with respect to
the Securities and the offering thereof 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 you prior to the Execution Time
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 basic prospectus and preliminary prospectus supplement that
have previously been furnished to you) as the Company has advised you, prior to
the Execution Time, will be included or made therein. If the registration
statement contains the undertaking specified by Regulation S-K Item 512(a), the
registration statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x) under the 0000 Xxx.
(b) The Time of Sale Information, at the Time of Sale did not, and at the
Closing Time will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty as to
the information contained in or omitted from the Time of Sale Information in
reliance upon and in conformity with information furnished in writing to the
Company by any Underwriter through you specifically for use in the Time of Sale
Information[, it being agreed that the only such information consists of [ ]][;
and provided further that if subsequent to the Time of Sale but prior to or on
the Closing Time the Company and the Underwriters determine that the Time of
Sale Information included an untrue statement of material fact or omitted to
state a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, for purposes of this
paragraph as it refers to the Closing Time, Time of Sale Information will
include information available to purchasers on the Closing Time including
Corrective Information].
(c) Other than the Preliminary Prospectus and the Prospectus, the Company
(including its agents and representatives other than the Underwriters in their
capacity as such) has not prepared or authorized, and will not prepare or
authorize any "written communication" (as defined in Rule 405 under the 0000
Xxx) that constitutes an offer to sell or solicitation of an
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offer to buy the Securities other than any Trust Free Writing Prospectus
included in the Time of Sale Information and other written communication
approved by the Underwriters. Any Trust Free Writing Prospectus complied in all
material respects with the Act, has been filed in accordance with Section 7 (to
the extent required by Rule 433 under the 1933 Act).
(d) [If the Time of Sale Information includes any Trust Free Writing
Prospectus, then] the Company is not, and on the date on which the first bona
fide offer of the Securities is made will not be, an "ineligible issuer", as
defined in Rule 405 under the 1933 Act.
(e) The Registration Statement, at the time it became effective, complied
in all material respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder (the "1933 Act Regulations") and does
not contain any untrue statement of a material factor omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission. The Final Prospectus at the time
it is transmitted to the Commission for filing pursuant to Rule 424 under the
1933 Act and at the Closing Time referred to in Section 2 will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. There are no material contracts or
documents of the Company which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which have
not been so filed.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, and other than as herein or
therein contemplated, (i) the Company has not, and at no time through the
Closing Time will it have, entered into any material transaction or incurred any
material liability or obligation, contingent or otherwise, other than as may
relate to additional series of securities similar to the Securities, (ii) there
has not been, and at no time through the Closing Time will there have been, any
material change in the capital stock or debt of the Company, or any material
adverse change in the business of the Company, and no material legal or
governmental proceeding, domestic or foreign, affecting the Company or the
transactions contemplated by this Agreement has been or at any time through the
Closing Time will have been instituted or threatened, and (iii) no event has or
at any time through the Closing Time will have occurred that constitutes or
would constitute a default under the provisions of the [Trust] [Pooling and
Servicing] Agreement [or the Indenture].
(g) The Company has been duly formed and is validly existing in good
standing under the laws of the State of Delaware with limited liability company
power and authority to conduct its business as described in the Registration
Statement. The Company is duly qualified to do business as a foreign limited
liability company and is in good standing under the laws of each jurisdiction
which requires such qualification and where the failure to so qualify would have
a material adverse effect on the Company.
(h) The Company is not in violation of its limited liability company
agreement. The Company is not in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be bound, which
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violations or defaults separately or in the aggregate would have a material
adverse effect on the Company.
(i) The Company owns or possesses or has obtained all material governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to conduct its business as described in the Registration Statement or,
if later, the applicable Final Prospectus; and the Company has conducted and is
conducting its business so as to comply in all material respects with all
applicable laws, administrative regulations and administrative and court
decrees.
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending against the
Company (except as set forth in the Registration Statement or, if later, the
applicable Final Prospectus) which could reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company or which could reasonably
be expected to interfere with or materially and adversely affect the
consummation of the transactions contemplated herein.
(k) The execution and delivery of this Agreement[,][and [the [Trust]
[Pooling and Servicing] Agreement [and the Indenture], the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated herein and therein are within the limited liability
company power and authority of the Company and have been duly authorized by the
Company by all necessary limited liability company action; this Agreement has
been duly executed and delivered by the Company, and each such instrument
constitutes and will constitute a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with such instrument's
terms. Neither the execution and delivery of this Agreement, the incurrence of
the obligations herein set forth, nor the consummation of the transactions
contemplated herein will conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, mortgage, pledge,
charge, security interest or encumbrance (collectively, "Lien") upon any
property or assets of the Company, pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
is a party or by which the Company may be bound, or to which any of the property
or assets of the Company is subject, which separately or in the aggregate are
material, nor will any such action result in any violation of the provisions of
the limited liability company agreement of the Company or of any law,
administrative regulation, or, to the best of such entity's knowledge, any
administrative or court decree.
(l) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and delivered in accordance
with the [Trust] [Pooling and Servicing] Agreement and sold to the Underwriters
pursuant to this Agreement, such Certificates will be legally issued and will
duly evidence all the beneficial ownership interest in the related trust created
by the [Trust] [Pooling and Servicing] Agreement.
[((n)) The issuance of the Notes has been duly authorized by the Trust and,
when such Notes are executed and delivered in accordance with the Indenture and
sold to the Underwriters pursuant to this Agreement, such Notes will be legally
issued and will duly evidence all the interest in the related trust created by
the Indenture.]
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([n][o]) The Securities[,] [and] the [Trust] [Pooling and Servicing]
Agreement and the Indenture will conform in all material respects to the
respective descriptions thereof contained in the applicable Final Prospectus.
([o][p]) The [Trust] [Pooling and Servicing] Agreement will be effective
prior to the Closing Time to establish the Trust under and pursuant to the laws
of the jurisdiction specified in such [Trust] [Pooling and Servicing] Agreement,
and the acquisition of the Trust Assets by the Trustee will be effective to vest
with the holders of the Certificates the entire beneficial ownership in the
Trust Assets intended to be vested thereby.[([p][q]) The Trust's assignment of
the Trust Assets to the Indenture Trustee pursuant to the Indenture will vest in
the Indenture Trustee a first priority perfected security interest therein,
subject to no prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.]
([ ]) Each of the Company and the Trust is not, and will not as a result of
the offer and sale of the Securities as contemplated in this Agreement become,
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 (the
"Investment Company Act")), which would be required to register under the
Investment Company Act.
(__) The representations and warranties made by the Company in the [Trust]
[Pooling and Servicing] Agreement and in any Officers' Certificate of the
Company delivered pursuant to such [Trust] [Pooling and Servicing] Agreement
will be true and correct at the time made and at the Closing Time.
(__) Any certificate signed by an officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
(__) All approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any governmental body,
quasi-governmental body or official (except with respect to the state securities
or Blue Sky laws of various jurisdictions), required in connection with (i) the
valid and proper deposit of the Trust Assets pursuant to the [Trust] [Pooling
and Servicing] Agreement and (ii) the valid and proper authorization, issuance
and sale of the Certificates pursuant to such [Trust] [Pooling and Servicing]
Agreement [and of the
Notes pursuant to the Indenture] and this Agreement, have been or will be taken
or obtained on or prior to the Closing Time.
(__) At or prior to the Closing Time, the Certificates shall be rated
__________ by ___________. At or prior to the Closing Time, the Notes shall be
rated the highest bond rating by ____________.
(__) Any taxes, fees and other governmental charges in connection with the
execution and delivery of this Agreement, [,][and] the [Trust] [Pooling and
Servicing] Agreement [the Indenture] and in connection with the acquisition of
the Trust Assets and the issuance of the Securities have been paid or will be
paid at or prior to the related Closing Time.
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(__) [At the Closing Time, the Trustee under the [Trust] [Pooling and
Servicing] Agreement will have acquired all right, title and interest in and to
the Trust Assets] [Immediately prior to the Closing Time, the Company (or one of
its affiliates) will own the Trust Assets free and clear of any Lien; the
Company (or such affiliate) will have the limited liability company power and
authority to assign, deliver and deposit the Trust Assets owned by it to and
with the Trustee under the [Trust] [Pooling and Servicing] Agreement, and will
have duly authorized the assignment, delivery and deposit of such Trust Assets
to and with such Trustee by all necessary limited liability company action. At
the Closing Time, the Company (or one of its affiliates) will have assigned and
delivered to and transferred to the applicable Trustee under the applicable
[Trust] [Pooling and Servicing] Agreement all its right, title and interest in
and to the Trust Assets applicable to such Certificates as of the Closing Time.]
SECTION 2. Sale and Delivery to the Underwriter[s]; Closing. The
[commitment of the Underwriter] [several commitments of the Underwriters] to
purchase Certificates shall be deemed to have been made on the basis of the
representations and warranties herein contained. Subject to the terms and
conditions herein set forth, the Company agrees to sell, or to cause one of its
affiliates to sell, to [the] [each] Underwriter, [severally and not jointly,]
and [the] [each] Underwriter, [severally and not jointly,] agrees to purchase
from the Company, at a purchase price equal to [(i)] ___% of the original stated
amount of the [Class ___] Certificates [[,][and] (ii) ______% of the original
stated amount of the [Class ____] Certificates] [[,][and] (iii) _____% of the
original stated amount of the [Class ___] Notes] [and (iv) _____% of the
original stated amount of the [Class ___] Notes] the respective original stated
amount of [the] [each class of such] Securities set forth on Schedule A hereto
opposite the name of such Underwriter[, plus any additional original stated
amount of Securities which such Underwriter may be obligated to purchase
pursuant to Section 12 hereof].
Delivery of, and payment of the purchase price for, the Securities shall be
made at the office of Mayer, Brown, Xxxx & Maw LLP, 00 X. Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M. on _______, or such other time as shall be agreed upon by
you and the Company (such time and date being referred to as the "Closing
Time"). Payment shall be made in immediately available funds, payable to or upon
the order of the Company.
Such Certificates shall be in such denominations and registered in such
names as you may request in writing at least two business days prior to the
Closing Time. The Certificates will be made available for examination and
packaging by you in Chicago, Illinois not later than 10:00 A.M. on the business
day next preceding the Closing Time. The Certificates to be so delivered will
initially be represented by one or more Certificates registered in the name of
Cede & Co., the nominee of DTC. The interests of beneficial owners of the
Certificates will be represented by book entries on the records of DTC and
participating members thereof.
SECTION 3. Representations and Warranties of the Underwriters.
(a) Each Underwriter, severally and not jointly, represents and warrants
to, and agrees with, the Company, in relation to each member state of the
European Economic Area which has implemented the Prospectus Directive (each, a
"Relevant Member State"), that with effect from and including the date on which
the Prospectus Directive is implemented in that
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Relevant Member State (the "Relevant Implementation Date") it has not made and
will not make an offer of Securities to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Securities which has
been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average of at
least 250 employees during the last financial year; (B) a total balance
sheet of more than EUR43,000,000 and (C) an annual net turnover of more
than EUR50,000,000, as shown in its last annual or consolidated accounts;
or
(iii) in any other circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this Section 3(a), the expression an "offer of Securities to
the public" in relation to any Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe for the Securities, as the same may be varied
in that Member State by any measure implementing the Prospectus Directive in
that Member State, and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State. "European Economic Area" means Austria, Belgium, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Xxxxxxxxx, Xxxxxxxxxx, Xxxxx, Xxxxxxxxxxx, Poland, Portugal,
Slovak Republic, Slovenia, Spain, Sweden, United Kingdom, Iceland, Liechtenstein
and Norway.
(b) Each Underwriter, severally and not jointly, represents and warrants
to, and agrees with, the Company that:
(i) It has complied and will comply with all applicable provisions of
the Financial Services and Markets Xxx 0000 ("FSMA") of Great Britain with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom.
(ii) It has only communicated or caused to be communicated and it will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of any of the
Securities in circumstances in which Section 21(1) of the FSMA does not
apply to the Trust.
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SECTION 4. Covenants of the Company. The Company covenants with you[, and
with each Underwriter participating in the offering of the Certificates,] as
follows:
(a) Immediately following the execution of this Agreement, the Company will
prepare a Final Prospectus setting forth the stated amount of Securities covered
thereby and the terms not otherwise specified in the [Trust] [Pooling and
Servicing] Agreement [and the Indenture] [, the names of the Underwriters
participating in the offering and the principal amount of Securities which each
severally has agreed to purchase, the names of any Underwriters acting as
co-managers with you in connection with the offering,] the price at which the
Securities are to be purchased by the Underwriter[s] from the Company, the
initial public offering price, the selling concession and reallowance, if any,
and such other information as you and the Company deem appropriate in connection
with the offering of the Securities. The Company will promptly transmit copies
of the Final Prospectus to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will furnish to the Underwriters named therein as many
copies of the Final Prospectus as you shall reasonably request. Subject to
Section 7, the Company will file any Trust Free Writing Prospectus to the extent
required by Rule 433 under the 0000 Xxx.
(b) The Company will notify you immediately, and in writing confirm the
notice, of (i) the receipt of any comments from the Commission concerning the
Registration Statement, (ii) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Final
Prospectus or for any additional information, (iii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iv) the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose, and (v) the happening of any event
which makes untrue any statement of a material fact made in the Registration
Statement or in any Final Prospectus then required to be distributed or which
requires the making of a change in the Registration Statement or any such Final
Prospectus in order to make any material statement therein, in light of the
circumstances under which it was made, not misleading. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) The Company will give you notice of its intention to file any amendment
to the Registration Statement or any amendment or supplement to the Final
Prospectus, and will not file any such amendment or supplement without
furnishing a copy thereof to you and your counsel and obtaining your consent to
such filing, which consent shall not be unreasonably withheld.
(d) The Company will deliver to you, as soon as practicable, as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto, with signed consents and exhibits filed therewith, and will also
deliver to you such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including consents and
exhibits), as you may reasonably request.
(e) The Company will furnish to [each] [the] Underwriter, from time to time
during the period when the Final Prospectus is required to be delivered under
the 1933 Act, such
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number of copies of the Final Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933 Act
or the Securities Exchange Act of 1934 (the "1934 Act").
(f) If at any time when a prospectus relating to the Securities is required
to be delivered under the 1933 Act any event occurs as a result of which the
applicable Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to amend
such Final Prospectus to comply with the 1933 Act, the Company, subject to
subsection (c) above, promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(g) The Company will endeavor, in cooperation with you and your counsel, to
qualify the Securities for offering and sale under the applicable securities and
Blue Sky laws of such jurisdictions as you may reasonably designate, and will
maintain such qualification in effect for a period of not less than two years
after the date hereof, and will cooperate with you and your counsel to determine
the eligibility of the Securities for the investment by institutional investors
in such jurisdictions. The Company will, at your request or the request of your
counsel, file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
Notwithstanding the foregoing, no such qualification shall be required in
any jurisdiction where, as a result thereof, the Company would be subject to
general service of process, other than by reason of the offer and sale of the
Securities, to qualification as a foreign corporation or to taxation as a
foreign corporation doing business in such jurisdiction.
(h) The Company will make generally available to its security holders and
will deliver to you as soon as practicable an earnings statement, conforming to
the requirements of Section 11(a) of the 1933 Act, covering a period of at least
twelve months beginning after the effective date of the Registration Statement.
Compliance with Rule 158 of the 1933 Act Regulations shall satisfy the
requirements of this paragraph.
(i) So long as any Securities are outstanding, the Company will furnish to
you as soon as practicable copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange by
the Company and to the extent that such information has been maintained in the
ordinary course by the Company, such other information as may reasonably be
requested by you which in your judgment is necessary or appropriate to the
maintenance of a secondary market in the Securities.
SECTION 5. Payment of Expenses. The Company will pay or cause to be paid
all expenses incident to the performance of the Company's obligations under this
Agreement[,] [and] the [Trust] [Pooling and Servicing] Agreement [and the
Indenture] including without limitation those related to: (i) the filing of the
Registration Statement with respect to the Securities and all amendments
thereto, including Commission filing fees, (ii) the printing or photocopying and
delivery to the Underwriter[s], in such quantities as you may reasonably
10
request, of copies of this Agreement, (iii) the preparation, registration,
issuance and delivery of the Securities to the Underwriter[s], (iv) the fees and
disbursements of the Company's counsel and accountants, and of any such counsel
rendering a closing opinion with respect to matters of local law, (v) the
qualification of the Securities under securities and Blue Sky laws and the
determination of the eligibility of the Securities for investment in accordance
with the provisions of Section 4(g), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter[s] in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (vi) the printing and delivery to the Underwriter[s], in such
quantities as you may reasonably request, of copies of the Registration
Statement with respect to the Securities and all amendments thereto, of any
preliminary prospectus and preliminary prospectus supplement and of the Final
Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey and Legal Investment Survey, (vii) the printing or photocopying and
delivery to the Underwriter[s], in such quantities as you may reasonably
request, of copies of the [Trust] [Pooling and Servicing] Agreement [and the
Indenture], (viii) the fees charged by investment rating agencies for rating the
Certificates, (ix) the fees and expenses, if any, incurred in connection with
the listing of Certificates on any national securities exchange and (x) the fees
and expenses of the Trustee [and the Indenture Trustee] and [its] [their
respective] counsel.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of the
Underwriter[s] to purchase and pay for the Certificates pursuant to this
Agreement are subject to the accuracy in all material respects, on and as of the
date hereof, and the applicable Closing Time, of the representations and
warranties of the Company herein contained, to the performance by the Company of
its obligations hereunder, and to the following further conditions:
(a) Subsequent to the execution of this Agreement, there shall not have
occurred or exist any of the following: (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Company which, in your judgment, materially impairs the
investment quality of the Securities; (ii) the imposition of additional material
governmental restrictions, not in force and effect on the date of this
Agreement, upon trading in securities generally, or the establishment generally
of minimum or maximum prices on the New York Stock Exchange or the suspension of
trading in securities generally on such exchange, or the establishment of a
general banking moratorium by federal or New York authorities; (iii) any event
which makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or the Final Prospectus, or
which is not reflected in the Registration Statement or the Final Prospectus but
should be reflected therein in order to make the statements or information
contained therein not misleading in any material respect; or (iv) an outbreak of
major hostilities or other national or international calamity or any substantial
change or acceleration in market, financial or economic conditions as, in your
judgment, affects adversely the marketability of the Securities.
(b) At the applicable Closing Time you shall have received the opinion or
opinions, addressed to the Underwriter[s] and dated the Closing Time, of Mayer,
Brown, Xxxx & Maw LLP, special counsel to the Company, or other counsel
reasonably satisfactory to you [and counsel for the Underwriters], which opinion
or opinions shall be in form and substance reasonably satisfactory to you [and
counsel for the Underwriters]. In rendering its opinion, Mayer, Brown, Xxxx &
Maw LLP and such other counsel may rely, as to matters of fact, on
11
certificates of responsible officers of the Company, the Trustee [,the Indenture
Trustee] and public officials and upon such opinions of such other counsel as
may be acceptable to you.
(c) At the Closing Time there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Final Prospectus, any material adverse change in the
condition, financial or otherwise, earnings, business affairs, regulatory
situation or business prospects of the Company whether or not arising in the
ordinary course of business, and you shall have received, at the Closing Time, a
certificate of the Chairman of the Board, the President or any Vice President of
the Company to the effect that there has been no such material adverse change
and to the effect that the other representations and warranties of the Company
contained in Section 1 are true and correct with the same force and effect as
though made at and as of the Closing Time.
(d) At the Closing Time, you and the Company shall have received the
favorable opinion of counsel for the Trustee, addressed to the Underwriter[s]
and the Company and dated the Closing Time, which opinion or opinions shall be
in form and substance reasonably satisfactory to you and counsel for the
Underwriter[s] and the Company.
[( ) At the Closing Time, you and the Company shall have received the
favorable opinion of counsel for the Indenture Trustee, addressed to the
Underwriter[s] and the Company and dated the Closing Time, which opinion or
opinions shall be in form and substance reasonably satisfactory to you and
counsel for the Underwriter[s] and the Company.]
(e) At the Closing Time, (i) counsel for the Underwriter[s] shall have been
furnished with such documents and opinions (which opinions shall be limited to
those specified in Sections 6(b) and 6(d)) as they may reasonably require for
the purpose of enabling them to pass upon the Registration Statement, the Time
of Sale Information, the Final Prospectus, the issuance and sale of the
Securities and related proceedings, or in order to evidence the accuracy of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained[,] [and] (ii) [each Underwriter that is not an
affiliate of the Company shall have received the opinion or opinions, addressed
to such Underwriter and dated the Closing Time, of special counsel to such
Underwriter, which opinion or opinions shall be in the form specified in the
applicable Terms Agreement or, if not so specified, in form and substance
reasonably satisfactory to such Underwriter, and (iii)] all proceedings taken by
the Company in connection with the issuance and sale of the Securities as
contemplated in the [Trust] [Pooling and Servicing] Agreement [and the
Indenture] shall be reasonably satisfactory in form and substance to you and
counsel for the Underwriter[s].
(f) At the Closing Time you shall have received or be entitled to rely upon
any opinions of counsel to the Company supplied to the rating agency or rating
agencies rating the Securities relating to certain matters with respect to the
Securities. Any such opinions shall specify that the Underwriter[s are] [is]
entitled to rely upon any such opinions as if such opinions were addressed to
them.
(g) You shall have received evidence satisfactory to you that, on or before
the Closing Time, UCC-1 financing statements have been or are being filed in the
appropriate filing offices reflecting the transfer of the interests of the
Company in the Trust Assets and the
12
proceeds thereof to the Trust [and the grant of the security interest therein by
the Trust to the Indenture Trustee].
(h) The Certificates shall be rated _____ by ________________, and no
rating agency shall have placed the Certificates under surveillance or review
with possible negative implications. The Notes shall be rated ________ by
__________, and no rating agency shall have placed the Notes under surveillance
or review with possible negative implications.
[((i)) At the Closing Time, you and the Company shall have received the
favorable opinion of counsel for the Servicer, addressed to the Underwriter[s]
and the Company and dated the Closing Time, which opinion or opinions shall be
in form and substance reasonably satisfactory to you and counsel for the
Underwriter[s] and the Company.]
If any condition in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by you by notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 5.
SECTION 7. Free Writing Prospectuses; Delivery of Preliminary Prospectus.
(a) In connection with the offering of the Securities, the Underwriter may
prepare and provide to prospective investors Free Writing Prospectuses, or
portions thereof, which the Company is required to file with the Commission in
electronic format and will use reasonable efforts to provide to the Company such
Free Writing Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft Excel(R) format and not in a PDF, except to the extent that the
Company, in its sole discretion, waives such requirements, subject to the
following conditions (to which such conditions the Underwriter agrees):
(b) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the 1933 Act, no Underwriter will convey or
deliver any written communication to any person in connection with the initial
offering of the Securities, unless such written communication (i) is made in
reliance on Rule 134 under the 1933 Act, (ii) constitutes a prospectus
satisfying the requirements of Rule 430B under the 1933 Act or (iii) constitutes
a Free Writing Prospectus or Time of Sale Information. Without the Company's
prior written consent, the Underwriter shall not convey or deliver in connection
with the initial offering of the Securities any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB ("ABS
Informational and Computational Material") in reliance upon Rules 167 and 426
under the 1933 Act.
(c) Each Underwriter will deliver to the Company, no later than two
Business Days prior to the date of first use thereof or such later date as may
be agreed by the Company, any Free Writing Prospectus prepared by or on behalf
of the Underwriter, including any Free Writing Prospectus that contains any
"issuer information", as defined in Rule 433(h) under the 1933 Act ("Trust
Information") (any Free Writing Prospectus prepared by an Underwriter is
referred to as an "Underwriter Free Writing Prospectus").
(d) Each Underwriter represents and warrants to the Company that each
Underwriter Free Writing Prospectus when read in conjunction with the Time of
Sale Information did not, as
13
of the date such Free Writing Prospectus was conveyed or delivered to any
prospective purchaser of Securities, include any untrue statement of a material
fact or omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Underwriter makes no representation to
the extent such misstatements or omissions were the result of any inaccurate
Trust Information supplied by the Company to the Underwriters or such
Underwriter, which information was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriters or such Underwriter
within a reasonable period of time prior to the Time of Sale.
(e) The Company agrees to file with the Commission when required under the
1933 Act Regulations the following:
(i) Any Trust Free Writing Prospectus;
(ii) Any Underwriter Free Writing Prospectus at the time required to be
filed; and
(iii) Any Free Writing Prospectus for which the Company or any person
acting on its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with the
Company or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications.
(f) Notwithstanding the provisions of Section 7(e), the Company will not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
(g) The Company and the Underwriters each agree that any Free Writing
Prospectuses prepared by it will contain the following legend:
The Issuer has filed a registration statement (including a prospectus)
with the SEC for the offering to which this free writing prospectus
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the Issuer has filed with the
SEC for more complete information about the Issuer and this offering. You
may get these documents for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. Alternatively, the Issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free 1-8[xx-xxx-xxxx].
(h) The Company and the Underwriters each agree to retain all Free Writing
Prospectuses that they have used and that are not filed with the Commission in
accordance with Rule 433 under the 1933 Act.
(i) If any Underwriter becomes aware that, as of the Time of Sale, any
Underwriter Free Writing Prospectus delivered to a purchaser of a Security
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading
14
(such Free Writing Prospectus, a "Defective Free Writing Prospectus"), the
Underwriter will notify the Company thereof within one Business Day after
discovery.
(j) Provided that the Defective Free Writing Prospectus was a Trust Free
Writing Prospectus or contained Trust Information, the Underwriter will, if
requested by the Company:
(i) Prepare a Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Free Writing Prospectus
(such corrected Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(ii) Deliver the Corrected Free Writing Prospectus to each purchaser of
a Security which received the Defective Free Writing Prospectus prior to
entering into an agreement to purchase any Securities;
(iii) Reform the contract of purchase with such purchaser by notifying
such purchaser in a prominent fashion that the prior agreement to purchase
Securities has been terminated, and of such purchaser's rights as a result
of termination of such agreement; and
(iv) Provide such purchaser with an opportunity to affirmatively agree
to purchase such Securities on the terms described in the Corrected Free
Writing Prospectus.
(k) [Each Underwriter, severally, represents and agrees (i) that it did not
enter into any contract of sale for any Securities prior to the Time of Sale and
(ii) that it will, at any time that such Underwriter is acting as an
"underwriter" (as defined in Section 2(a)(11) of the Act) with respect to the
Securities, convey to each investor to whom Securities are sold by it during the
period prior to the filing of the final Prospectus (as notified to the
Underwriters by the Company), at or prior to the applicable time of any such
contract of sale with respect to such investor, the Preliminary Prospectus.]
(l) Each Underwriter covenants with the Company and the Trust that after
the Final Prospectus is available the Underwriter will not distribute any
written information concerning the Securities to a prospective purchaser of
Securities unless such information is preceded or accompanied by the Final
Prospectus.
(m) If the Company becomes aware that, as of the Time of Sale, any Trust
Free Writing Prospectus delivered to a purchaser of a Security contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (such Trust Free
Writing Prospectus, a "Defective Trust Free Writing Prospectus"), the Company
will notify the Underwriter thereof within one Business Day after discovery,
and, if requested by the Underwriter, prepare and deliver to the Underwriter a
Free Writing Prospectus which corrects the material misstatement in or omission
from the Defective Trust Free Writing Prospectus (such corrected Trust Free
Writing Prospectus, a "Corrected Trust Free Writing Prospectus".
15
SECTION 8. Indemnification. (a) The Company agrees to indemnify and hold
harmless [each] [the] Underwriter and each person, if any, who controls [any]
[the] Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Time of Sale
Information, any preliminary prospectus, preliminary prospectus supplement
or the Final Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein in the light of the circumstances
under which they were made not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by
[any Underwriter through] you expressly for use in the Registration
Statement (or any amendment thereto) in any preliminary prospectus,
preliminary prospectus supplement or the Final Prospectus (or any amendment
or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based, in each case,
upon any untrue statement or omission described in (i) above, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the reasonable
fees and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened or any claim whatsoever based upon any untrue statement or
omission, or any alleged untrue statement or omission described in (i)
above, to the extent that any such expense is not paid under (i) or (ii)
above.
(b) [Each] [The] Underwriter [severally] agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement or any amendment thereto, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 8, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Time of
Sale Information, any preliminary prospectus, preliminary prospectus supplement
or the Final Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or in any preliminary prospectus, preliminary prospectus supplement or
the Final Prospectus (or any amendment or supplement thereto).
16
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action 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 any claims that are the subject
matter of such action.
SECTION 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which an indemnity provided for in subsections
(a) or (b) of Section 8 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriter[s], on the other, shall contribute
to the aggregate losses, liabilities, claims, damages and expense of the nature
contemplated by such subsection incurred by the Company and [one or more of] the
Underwriter[s], (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter[s] on the
other from the offering of the Certificates 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 and also the relative fault of the Company on the one hand and the
Underwriter[s] on the other in connection with the statements or omissions that
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriter[s] on the other shall be deemed
to be in the same proportion as the total proceeds from the offering of the
Certificates (before deducting expenses) received by the Company bear to the
total compensation and profit (before deducting expenses) received or realized
by the Underwriter[s] from the purchase and resale, or underwriting, of the
Certificates. The relative fault 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 Company or the Underwriter[s] and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such untrue or alleged untrue statement or omission or alleged omission.
The Company and the Underwriter[s] agree that it would not be just and
equitable if the contributions pursuant to this Section 9 were to be determined
by pro rata allocation [(even if the
17
Underwriters were treated as one entity for such purpose)] or by any other
method of allocation that does not take account of the equitable considerations
referred to in the first sentence of this Section 9. The amount paid by an
indemnified party as a result of the losses, liabilities, claims, damages, or
expenses referred to in the first sentence of this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this Section 9. Notwithstanding any other provision of
this Section 9, [no] [the] Underwriter shall [not] be obligated to make
contributions hereunder that in the aggregate exceed the total public offering
price of the Certificates purchased by such Underwriter, less the aggregate
amount of any damages that such Underwriter has been required to pay in respect
of the same or substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
[The Underwriters' obligations in this Section 9 to contribute shall be
several in proportion to their respective underwriting obligations and not
joint.] For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement or any
amendment thereto, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Company.
SECTION 10. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto or as contemplated hereby, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of [any]
[the] Underwriter or controlling person thereof, and shall survive delivery of
any Certificates to the Underwriters.
SECTION 11. Termination of Agreement. (a) You may terminate this Agreement
by notice to the Company, at any time at or prior to the Closing Time, (i) if
there has been, since the respective dates as of which information is given in
the Registration Statement or Final Prospectus, any material adverse change in
the condition, financial or otherwise, earnings, business affairs, regulatory
situation or business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) if there has occurred any outbreak of major
hostilities, acts of terrorism or domestic disturbance within the any of the 50
states of the United States of America or other national or international
calamity or any substantial change or acceleration in market, financial or
economic conditions, the effect of which is such as to make it, in your
reasonable judgment, impracticable to market the Securities or enforce contracts
for the sale of the Securities or (iii) if trading generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either federal or state authorities.
(b) This Agreement may be terminated by you in accordance with Section 6
hereof.
18
(c) In the event of any such termination, (i) the covenants set forth in
Section 4 with respect to any offering of Securities shall remain in effect so
long as [any] [the] Underwriter owns any Securities and (ii) the covenant set
forth in Section 4(h), the provisions of Section 5, the indemnity agreement set
forth in Section 8, and the provisions of Sections 9 and 15 shall remain in
effect forever.
SECTION 12. [Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Securities which
it or they are obligated to purchase hereunder (the "Defaulted Securities"), you
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any Underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the aggregate original stated amount of Defaulted Securities does
not exceed 10% of the aggregate original stated amount of the Securities to be
purchased pursuant to this Agreement, the nondefaulting Underwriters named
herein shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations thereunder bear to the
underwriting obligations of all nondefaulting Underwriters; and
(b) if the aggregate original stated amount of the Defaulted Securities
exceeds 10% of the aggregate original stated amount of the Securities to be
pursuant to this Agreement, this Agreement shall terminate without any liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 and nothing in this Agreement
shall relieve any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period of time not exceeding seven days in order to effect
any required changes in the Registration Statement or in any other documents or
arrangements.]
SECTION 13. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Company shall be directed to it at [_], [__________], Attn: _______, and notices
to you shall be directed to X.X. Xxxxxx Securities Inc., [__________], Attn:
____________.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter[s] named herein and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto, and their respective successors and the controlling
persons and officers and directors referred to in Sections 8 and 9 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provisions herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and directors
19
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from [any] [the]
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Relationship Among Parties. The Company acknowledges and agrees
that the Underwriters are acting solely in the capacity of an arm's length
contractual counterparty to the Company with respect to the offering of the
Securities contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of the Company or any other person. Additionally, none of the Underwriters
are advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult
with their own advisors concerning such matters and shall be responsible for
making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect to any such legal, tax, investment,
accounting or regulatory matters. Any review by the Underwriters of the Company,
the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
20
If the foregoing is in accordance with your understanding hereof, please
execute this Agreement in the appropriate space below and return to the
undersigned, whereupon this instrument along with any counterpart will become a
binding agreement among the Company and you in accordance with its terms.
Very truly yours,
Bond Securitization, L.L.C.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXX SECURITIES INC.
[Acting on behalf of themselves
and as Representative of the
several Underwriters]
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
21
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT OF
[CLASS _____] CERTIFICATES
X.X. Xxxxxx Securities Inc. $ _______________
X.X. Xxxxxx Securities Inc. $ _______________
X.X. Xxxxxx Securities Inc. $ _______________
X.X. Xxxxxx Securities Inc. $ _______________
TOTAL
A-1
