EXHIBIRT 1.1
BAY VIEW DEPOSIT CORPORATION,
BAY VIEW ACCEPTANCE CORPORATION
AND
X.X. XXXXXX SECURITIES INC.
UNDERWRITING AGREEMENT
FOR
BAY VIEW 2005-3 OWNER TRUST
AUTOMOBILE RECEIVABLE BACKED NOTES
November 29, 2005
November 29, 2005
Bay View Acceptance Corporation
000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Bay View Deposit Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We understand that Bay View Deposit Corporation, a Delaware corporation
("BVDC"), proposes to sell $214,600,000 aggregate amount of Notes designated
"Bay View 2005-3 Owner Trust Automobile Receivable Backed Notes, Series 2005-3"
(the "Offered Securities"), issued by Bay View 2005-3 Owner Trust. Subject to
the terms and conditions set forth in or incorporated by reference in this
Underwriting Agreement (this "Agreement"), X.X. Xxxxxx Securities Inc. and
Xxxxxx Xxxxxxx Corp. (each such Underwriter being herein called an "Underwriter"
and, collectively, the "Underwriters") hereby agree, severally and not jointly,
to purchase all of the Offered Securities set forth beneath its name on the
applicable grid below this paragraph. 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 each Underwriter will purchase its Offered
Securities are set forth on such grid.
X.X. XXXXXX SECURITIES INC.
=================================================================================================================================
Principal Amount Price to Public Underwriting Discount Purchase Price
=================================================================================================================================
Class A-1 Notes $18,620,000 100.00000% 0.180% $ 18,586,484
=================================================================================================================================
Class A-2 Notes $51,450,000 99.99609% 0.210% $ 51,339,943
=================================================================================================================================
Class A-3 Notes $37,170,000 99.98949% 0.230% $ 37,080,602
=================================================================================================================================
Class A-4 Notes $26,789,000 99.98782% 0.240% $ 26,721,443
=================================================================================================================================
Class B Notes $ 8,810,000 99.97226% 0.270% $ 8,783,769
=================================================================================================================================
Class C Notes $ 7,160,000 99.98235% 0.290% $ 7,137,972
=================================================================================================================================
Class D Notes $ 7,160,000 99.97600% 0.310% $ 7,136,086
=================================================================================================================================
Total $156,786,300
=================================================================================================================================
XXXXXX XXXXXXX CORP.
=================================================================================================================================
Principal Amount Price to Public Underwriting Discount Purchase Price
=================================================================================================================================
Class A-1 Notes $ 7,980,000 100.00000% 0.180% $ 7,965,636
=================================================================================================================================
Class A-2 Notes $22,050,000 99.99609% 0.210% $ 22,002,833
=================================================================================================================================
Class A-3 Notes $15,930,000 99.98949% 0.230% $ 15,891,687
=================================================================================================================================
Class A-4 Notes $11,481,000 99.98782% 0.240% $ 11,452,047
=================================================================================================================================
Total $ 57,312,203
=================================================================================================================================
We will pay for our Offered Securities in immediately available funds upon
delivery of the Offered Securities to or at the offices of Xxxxxx Xxxxx LLP, or
at such other location as shall be designated by us, at noon (New York time) on
December 6, 2005 or at such other time as shall be designated by us (such time,
the "Closing Date").
Pursuant to Article V(i) of the Standard Provisions (as defined below),
during a period of 60 calendar days from the date hereof, neither BVDC nor any
affiliate of BVDC will, without our prior written consent, enter into any
agreement to offer or sell securities similar to 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 Owner Trusts, Automobile Receivable Backed
Securities, dated November 29, 2005 (the "Standard Provisions"), by and among
Bay View Acceptance Corporation, Bay View Deposit Corporation, X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx Corp., 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" or the
"several Underwriters" herein and in the Standard Provisions shall be deemed to
refer to X.X. Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Corp., the Underwriters
hereunder.
BVDC and Bay View Acceptance Corporation ("BVAC", together with BVDC, the
"Company") acknowledge and agree that each Underwriter is acting solely in the
capacity of an arm's length contractual counterparty to the Company with respect
to the offering of Offered Securities contemplated hereby and in the Standard
Provisions (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, the Underwriters are not 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 its 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 thereto. 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.
Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such amendment, waiver, discharge or termination is sought.
[SIGNATURE PAGE FOLLOWS]
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,
X.X. XXXXXX SECURITIES INC., on behalf of
itself and as Representative of
the Underwriters,
By: /s/ Xxxx Xxx
-------------------------------------
Name: Xxxx Xxx
Title: Vice President
Accepted: November 29, 2005
BAY VIEW DEPOSIT CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: EVP & Chief Financial Officer
BAY VIEW ACCEPTANCE CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
ANNEX A
Copy of Prospectus
EXECUTION COPY
BAY VIEW DEPOSIT CORPORATION,
BAY VIEW ACCEPTANCE CORPORATION,
AND
X.X. XXXXXX SECURITIES INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FOR
BAY VIEW OWNER TRUSTS
AUTOMOBILE RECEIVABLE BACKED SECURITIES
November 29, 2005
BAY VIEW DEPOSIT CORPORATION
0000 XXXXXXX XXXXX, XXXXX 000
XXX XXXXX, XXXXXXXXXX 00000
BAY VIEW ACCEPTANCE CORPORATION
0000 XXXXXXX XXXXX, XXXXX 000
XXX XXXXX, XXXXXXXXXX 00000
X.X. Xxxxxx Securities Inc.,
as representative of the Underwriters named
in the respective Underwriting
Agreements hereinafter described
November 29, 2005
Ladies and Gentlemen:
From time to time, Bay View Deposit Corporation ("BVDC") and
Bay View Acceptance Corporation ("BVAC") may 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 Agreement") with such changes hereto as
provided in the Underwriting Agreement. Any such Underwriting Agreement shall be
in the form of Annex I hereto, with such additions and deletions as the parties,
including the Underwriters (as defined in the Underwriting Agreement), thereto
may determine. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings set forth in the applicable Transaction Agreement (as
defined below).
I.
BVDC proposes to sell to the several underwriters named in the
Underwriting Agreement automobile receivable pass-through certificates and/or
automobile receivable backed notes (the "Securities") representing undivided
interests in a trust fund including a pool of motor vehicle installment sale
contracts and/or installment loan contracts (the "Receivables") secured by new
and used automobiles, light-duty trucks, sport utility vehicles and vans (the
"Financed Vehicles"). The Securities will be issued by a trust (the "Trust"),
pursuant to a trust and servicing agreement (the "Trust and Servicing
Agreement") and an indenture (the "Indenture"), or pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement", and together with
the Trust and Servicing Agreement and the Indenture, the "Transaction
Agreements") between BVDC, as depositor, BVAC, as servicer (in such capacity,
the "Servicer"), the entity identified as standby servicer and/or back-up
servicer, if any, and the bank or trust company or other financial institution
identified, as either an owner trustee or an indenture trustee (the "Trustee").
The Receivables will be sold to BVDC by BVAC pursuant to a Receivables Purchase
Agreement (the "Purchase Agreement") between BVAC, as seller and BVDC, as
purchaser. The terms and rights of any particular issuance of Securities shall
be as
specified in the Underwriting Agreement relating thereto and in or pursuant to
the applicable Transaction 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 Securities". This Agreement, the Underwriting Agreement, the
applicable Transaction Agreement, the Purchase Agreement and any Credit Enhancer
Documents (as defined in the related Underwriting Agreement) are hereinafter
referred to as the "Transaction Documents". The Securities will represent
undivided interests in a 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
applicable Transaction Agreement (collectively, the "Trust Fund"). The
Securities with respect to each Underwriting Agreement and the related
applicable Transaction 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 any 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
"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 BVDC to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The obligation
of BVDC 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 applicable Transaction 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) BVDC 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) 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 amended (the "Act"), which registration
statement has become effective and copies of which have been heretofore
delivered to you. BVDC is eligible to use Form S-3 in connection with
the offer and sale of the Securities and the conditions for use of Form
S-3, as set forth in the
-2-
General Instructions thereto, have been satisfied. BVDC, as registrant,
will file with the Commission either, prior to effectiveness of such
registration statement, and amendment thereto (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 Rule 424(b). There are no contracts or
documents of BVDC which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the rules and regulations
thereunder which have not been so filed or incorporated by reference
therein on or prior to the Effective Date.
As used herein, the term the "Effective Date" shall mean each
date on and time at which the Registration Statement and any post-effective
amendment or amendments thereto became or becomes effective. "Execution Time"
shall mean the date and time that the Underwriting Agreement is executed and
delivered by the parties thereto. "Preliminary Prospectus" shall mean any
preliminary prospectus and prospectus supplement which has been filed pursuant
to Rule 424. "Prospectus" shall mean 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. "Registration Statement" shall mean the registration
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 filed and declared effective prior to the Closing Date (as
hereinafter defined), inclusive of such incorporated documents, exhibits,
financial statements.
(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 (together with any supplements thereto) 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
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, 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
BVDC by or on behalf of such Underwriter 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 BVDC by or on behalf of the Underwriters specifically for inclusion
in the Registration Statement or the Prospectus.
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with
the Commission, conformed as to form in all material respects to the
requirements of the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable, and the rules and
-3-
regulations of the Commission thereunder, and none of such documents
contained 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; any further documents so filed and
incorporated by reference in the Registration Statement and the
Prospectus, when such documents are filed with the Commission will
conform as to form in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) The computer tape of the Receivables underlying
the Offered Securities made available to the Representatives by BVDC
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
applicable Transaction Agreement and the description of the Receivables
in the related Prospectus Supplement.
(e) BVDC has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business or financial
condition of BVDC 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 or is to be a party.
(f) BVDC 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.
(g) This Agreement has been duly authorized,
executed, and delivered by BVDC and the other Transaction Documents to
which it is or is to be a party, when delivered by BVDC, will each have
been duly authorized, executed, and delivered by BVDC, and each such
Transaction Document will constitute a legal, valid, and binding
agreement of BVDC, enforceable against BVDC 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).
(h) The Offered Securities and Transaction Documents
will conform in all material respects to the description thereof
contained in the Prospectus and, the
-4-
Offered Securities have been duly and validly authorized, and assuming
that the Offered Securities have been duly and validly authorized,
executed and issued by the Trustee in accordance with the applicable
Transaction 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 applicable Transaction Agreement.
(i) 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 BVDC with
respect to the Receivables contained in the applicable Transaction
Agreement will be true and correct.
(j) 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 BVDC, 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 BVDC is a party, by which it is bound or to which any of the
property or assets of BVDC may be subject, or any statute, regulation,
or order applicable to BVDC of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over BVDC or
BVDC's material properties, that materially and adversely affects or
would in the future materially and adversely affect (i) the ability of
BVDC 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 BVDC. BVDC 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 BVDC 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 BVDC.
(k) There are no actions or proceedings against, or
investigations of, BVDC pending or, to the knowledge of BVDC,
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 BVDC 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 BVDC would have a material
adverse effect on the business, operations, or financial condition or
the material properties or assets of BVDC.
(l) (i) There has not been any material adverse
change, or development involving a material adverse prospective change,
in the business,
-5-
operations, or financial condition or the material properties or assets
of BVDC, taken as a whole and (ii) BVDC has not entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to BVDC that, in either case, would reasonably be
expected to materially adversely affect the interests of the holders of
the Securities, since the more recent of (1) the end of the most recent
fiscal quarter for which quarterly financial statements or audited
annual financial statements, as applicable, were delivered to
Representatives prior to the date of the related Underwriting Agreement
or (2) the respective dates as of which information was given in the
Registration Statement and the Prospectus.
(m) 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.
(o) BVDC will convey the Receivables to the Trust
pursuant to the applicable Transaction Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens") other than Liens created by
the applicable Transaction Agreement.
(p) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body of the United States is required for the issuance and
sale of the Offered Securities, or the consummation by BVDC of the
other transactions contemplated by this Agreement, except the
registration under the Act of the Offered Securities and such consents,
approvals, authorizations, registrations or qualifications as may have
been obtained or effected or as may be required under securities or
Blue Sky laws in connection with the purchases and distribution of the
Offered Securities by the Underwriters.
(q) BVDC possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now conducted by it and as described in the Registration
Statement and Prospectus (or is exempt therefrom) and BVDC has not
received notice of any proceedings relating to the revocation or
modification of such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
(r) BVDC is not currently required to be, and will
not conduct its operations while any of the Offered Securities are
outstanding in a manner that would require BVDC or the Trust to be
created pursuant to the applicable Transaction Agreement to be,
registered as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act"), as in effect on the date hereof,
and neither the Trust nor BVDC, after giving effect to any offering and
sale of Securities and the application of the proceeds thereof, will be
an "investment company".
-6-
(s) On the Closing Date, each of the representations
and warranties of BVDC set forth in this Agreement, the Underwriting
Agreement and any Transaction Document will be true and correct in all
material respects.
(2) BVAC 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) 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 (together with any supplements thereto) 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
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the
foregoing representations and warranties in this Article II(2)(a) do
not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished to
BVDC by or on behalf of such Underwriter 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 BVDC by or on behalf of the Underwriters specifically for inclusion
in the Registration Statement or the Prospectus.
(b) The computer tape of the Receivables underlying
the Offered Securities made available to the Representatives by BVAC
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
applicable Transaction Agreement and the description of the Receivables
in the related Prospectus Supplement.
(c) BVAC has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Nevada, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business or financial
condition of BVAC 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 or is to be a party.
-7-
(d) This Agreement has been duly authorized,
executed, and delivered by BVAC and the other Transaction Documents to
which it is or is to be a party, when delivered by BVAC, will each have
been duly authorized, executed, and delivered by BVAC, and each such
Transaction Document will constitute a legal, valid, and binding
agreement of BVAC, enforceable against BVAC 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).
(e) The Offered Securities and Transaction Documents
will conform in all material respects to the description thereof
contained in the Prospectus, the Offered Securities have been duly and
validly authorized, and, assuming that the Offered Securities have been
duly and validly authorized, executed, and issued by the Trustee in
accordance with the applicable Transaction 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 applicable
Transaction Agreement.
(f) 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 BVAC with
respect to the Receivables contained in the Purchase Agreement will be
true and correct.
(g) BVAC will convey the Receivables to BVDC pursuant
to the Purchase Agreement, free and clear of any Liens, other than
Liens created by the Purchase Agreement.
(h) 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 articles of incorporation or by-laws of BVAC, 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 BVAC is a party, by which it is bound or to which any of the
property or assets of BVAC may be subject, or any statute, regulation,
or order applicable to BVAC of any governmental body, administrative
agency, regulatory body, or court having jurisdiction over BVAC or
BVAC's material properties, that materially and adversely affects or
would in the future materially and adversely affect (i) the ability of
BVAC 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 BVAC. BVAC 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 BVAC to perform its obligations
under any Transaction Document to
-8-
which it is a party or (ii) the business, operations, or financial
condition, or the material properties or assets of BVAC.
(i) There are no actions or proceedings against, or
investigations of, BVAC pending or, to the knowledge of BVAC,
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 BVAC 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 BVAC would have a material
adverse effect on the business, operations, or financial condition or
the material properties or assets of BVAC.
(j) 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 BVAC and (ii) BVAC has not entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to BVAC that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the
Securities, since the more recent of (1) the end of the most recent
fiscal quarter for which quarterly financial statements or audited
annual financial statements, as applicable, were delivered to
Representatives prior to the date of the related Underwriting Agreement
or (2) the respective dates as of which information is given in the
Registration Statement and the Prospectus.
(k) 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.
(l) BVAC possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now conducted by it and as described in the Registration
Statement and Prospectus (or is exempt therefrom) and BVAC has not
received notice of any proceedings relating to the revocation or
modification of such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
III.
Purchase By the Underwriters. The Offered Securities to be
purchased 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 BVDC,
shall be delivered by or on behalf of BVDC to the Representatives for the
account of such Underwriters, against payment by such Underwriters or
-9-
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 BVDC
in immediately available funds, or (ii) by such other means and in such other
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 BVDC may agree upon in writing, such time and date
being herein called the "Closing Date" for such Offered Securities. The
Underwriters' commitment to purchase the Offered Securities pursuant to this
Agreement shall be deemed to have been made on the basis of the representations
and warranties of BVDC and BVAC herein contained and shall be subject to the
terms and conditions herein set forth.
BVDC 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. BVDC is advised by the
Representatives 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.
BVDC 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.
V.
Agreements. BVAC and BVDC agree with each of the Underwriters
of any Offered Securities that:
(a) BVDC 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 BVDC 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. BVDC 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 BVDC 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, BVDC 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. BVDC will use its best efforts to prevent the
issuance of any stop order
-10-
suspending the effectiveness of the Registration Statement and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) BVDC will cause any Computational Materials and
any Structural Term Sheets (each as defined below) with respect to the
Offered Securities that are delivered by the Underwriters to BVDC to be
filed with the Commission on a Current Report on Form 8-K (a "Current
Report") pursuant to Rule 13a-11 under the Exchange Act on the second
business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for BVDC
by any of the Underwriters (and will use its best efforts to cause such
Computational Materials and Structural Term Sheets to be so filed, New
York time, on the following business day), and will promptly advise you
and your counsel when such Current Report has been so filed. BVDC will
cause any Collateral Term Sheet (as defined below) with respect to the
Offered Securities that is delivered by any of the Underwriters to BVDC
to be filed with the Commission on a Current Report pursuant to Rule
13a-11 under the Exchange Act on the second business day immediately
following the day on which such Collateral Term Sheet is delivered to
counsel for BVDC by any of the Underwriters. In addition, if at any
time prior to the availability of the related Prospectus, any of the
Underwriters has delivered to any prospective investor a subsequent
Collateral Term Sheet that reflects, in the reasonable judgment of such
Underwriter and BVDC, a material change in the characteristics of the
Receivables for the Offered Securities from those on which a Collateral
Term Sheet with respect to the Offered Securities previously filed with
the Commission was based, BVDC will cause any such Collateral Term
Sheet that is delivered by such Underwriter to BVDC to be filed with
the Commission on a Current Report on the second business day
immediately following the day on which such Collateral Term Sheet is
delivered to counsel for BVDC by such Underwriter. In each case, BVDC
will promptly advise you when such Current Report has been so filed.
Notwithstanding the four preceding sentences, BVDC shall have no
obligation to file any materials provided by any of the Underwriters
which (i) in the reasonable determination of BVDC are not required to
be filed pursuant to the Xxxxxx Letters or the PSA Letter (each as
defined below), or (ii) contain erroneous information or contain any
untrue statement of a material fact or, when read in conjunction with
the Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
BVDC shall give notice to you and such Underwriter of its determination
not to file any materials pursuant to clause (i) of the preceding
sentence and agrees to file such materials if such Underwriter or you
reasonably object to such determination within one business day after
receipt of such notice.
As used herein, (i) "Computational Materials" shall have the
meaning given within the meaning of the no-action letter dated May 20, 1994,
issued by the Division of Corporation Finance of the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action Letter dated May 27, 1994, issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"), the filing of such
materials a condition of the relief granted in such letters (such materials
being the "Computational Materials"); and (ii) "Structural Term Sheets" or
"Collateral Term Sheets" shall have the meaning given within the meaning of the
no-action letter dated February 17, 1995, issued by the
-11-
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter"; and together with the Xxxxxx Letters, the
"No-Action Letters"), the filing of such materials a condition of the relief
granted in such letter (such materials being the "Structural Term Sheets" or
"Collateral Term Sheets", as applicable).
(c) 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 or to file
under the Exchange Act any document incorporated by reference in the
Prospectus to comply with the Act or the Exchange Act, BVDC will
promptly prepare and file with the Commission without charge to the
Underwriters, 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. BVDC shall furnish or cause to be furnished to the
Underwriters and counsel for the Underwriters, prior to filing with the
Commission, and obtain the consent of the Underwriters, which consent
will not unreasonably be withheld, for the filing of the following
documents relating to the Offered Securities: (i) any amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) the Prospectus
filed pursuant to Rule 424 under the Act.
(d) BVDC will furnish to the Underwriters and their
counsel, 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 reasonably request. BVDC will also furnish to the
Underwriters and their counsel, without charge, copies of all
correspondence between BVDC, BVAC or Bay View Capital Corporation and
the Commission. BVDC will pay the expenses of printing all offering
documents relating to the offering of the Offered Securities.
(e) BVDC 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 Underwriters
the annual statement as to compliance delivered to the Trustee pursuant
to the applicable Transaction Agreement, the annual statement of a firm
of independent public accountants furnished to the Trustee pursuant to
the applicable Transaction Agreement, and the Servicer's Certificate
and all monthly reports generated by the Servicer under the applicable
Transaction Agreement.
(f) As soon as practicable, but not later than
sixteen months after the effective date of the Registration Statement,
BVDC will cause the Trust to make generally available to
securityholders of the Trust an earnings statement of the Trust
-12-
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 BVDC, will satisfy the
requirements of Rule 158 under the Act.
(g) BVDC 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. BVDC 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.
(h) Unless otherwise provided in the related
Underwriting Agreement, BVDC 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 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.
(i) Each Underwriting Agreement will specify a period
of days beginning from each Effective Date during which neither BVDC
nor any affiliate of BVDC will, without the Underwriters' prior written
consent, enter into any agreement to offer or sell receivables or
securities as identified in such Underwriting Agreement.
(j) So long as any of the Offered Securities are
outstanding, BVDC will furnish to the Underwriters as soon as
practicable after the end of the fiscal year, (i)
-13-
all documents required to be distributed to securityholders of the
Trust or filed with the Commission pursuant to the Exchange Act, or any
order of the Commission thereunder and (ii) from time to time, any
other information concerning BVDC filed with any government or
regulatory authority that is otherwise publicly available.
(k) On or before the Closing Date, BVDC and BVAC shall cause
their computer records relating to the Receivables and the Receivable
Files 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, BVDC and BVAC shall not take any action inconsistent with
the Trust's ownership of such Receivables, other than as permitted by
the applicable Transaction Agreement.
(l) 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 BVDC, BVDC shall, as
soon as practicable, furnish such documents and take any such other
actions.
(m) BVDC will file with the Commission any periodic reports
concerning the Trust and the Offered Securities that are required by
the Exchange Act.
(n) BVDC will timely file with the Commission on Form 8-K
any documents concerning the Trust and the Offered Securities that are
required by the Act.
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 BVDC and BVAC contained herein
as of the date hereof and the Closing Date, to the accuracy of the statements of
BVDC and BVAC made in any certificates pursuant to the provisions hereof, to the
performance by BVDC and BVAC of its obligations hereunder and in the Transaction
Documents and to the following additional conditions as of the Closing Date:
(a) 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, 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 Xxxxxx Xxxxx
LLP, counsel for BVDC and BVAC and such other counsels admitted in the
appropriate jurisdictions acceptable to the Underwriters, favorable
opinions, dated the Closing Date and satisfactory in form and substance
to counsel for the Underwriters. 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 BVAC and BVDC and
their respective affiliates, and (c) to the extent such opinion relates
to law
-14-
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 Underwriters, dated the Closing Date, and
satisfactory in form and substance to counsel for the Underwriters.
(c) Xxxxxx Xxxxx LLP 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 and true sale
matters.
(d) For each State for which the Receivables constitute 10%
or more of the initial principal balance of a Receivables included in
the Trust Property, the Underwriters shall have received from legal
counsel to BVDC admitted in the appropriate jurisdictions acceptable to
the Underwriters, favorable opinions, dated the Closing Date and
satisfactory in form and substance to the counsel for the Underwriters.
(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 A.
(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 and the
Underwriters shall have received copies of letters to that effect.
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
instrument issued by BVDC or (iii) any rated debt instrument issued by
the third party credit enhancer, if any.
(j) BVDC and BVAC will enter into each Transaction Document
to which it is a party at or before the Closing Date and, when
delivered by BVDC and BVAC as the case may be, each such Transaction
Document will have been duly
-15-
authorized, executed, and delivered by such entity and will constitute
the legal, valid, and binding agreement of such entity.
(k) Each of BVAC and BVDC 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 ability of such entity to perform its obligations under any
Transaction Document to which it is a party or 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 BVDC, 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, 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 BVDC.
(m) All proceedings in connection with the transactions
contemplated by the Offered Securities, each Transaction Document and
all documents incident hereto or thereto shall be satisfactory in form
and substance to the Underwriters and counsel for
-16-
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, because of any refusal,
inability, or failure on the part of BVDC or BVAC to perform any agreement
herein or therein or comply with any provision hereof or because of any
termination of the Underwriting Agreement and this Agreement pursuant to Article
IX hereof, other than by reason of a default by the Underwriters, BVDC and BVAC,
jointly and severally will reimburse the Underwriters upon demand for all
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) BVAC and BVDC, jointly
and severally, agree to indemnify, reimburse and hold harmless the Underwriters
and each person who controls any Underwriter within the meaning of the Act or
the Exchange Act, and their successors and assigns (collectively, the
"Controlling Parties"), and each of the Underwriters' and such Controlling
Parties' respective directors, officers and employees, from and against any and
all losses, claims, costs, damages, expenses (including reasonable attorneys
fees, disbursements and other charges of counsel), actions or liabilities
(including the cost of any investigation, legal and other expenses incurred in
connection with the amounts paid in settlement of any action, suit, proceeding
or claim asserted), joint or several, to which the Underwriters may become
subject, or threats thereof, under the Act, the Exchange Act, or other federal
or state 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 an 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 or alleged 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, or (iii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact contained in any Computational Materials or
Structural Term Sheets, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse each such indemnified party
promptly upon demand for any legal or other expenses reasonably incurred by them
in connection with investigating or defending against such loss, claim, damage,
liability, or action, as such expenses are incurred; provided, however, that
neither BVAC nor BVDC will be liable in any such case to the extent that any
such loss, claim, damage,
-17-
or liability arises out of or is based upon an 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 BVAC and/or BVDC 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 BVAC and BVDC may otherwise have.
(b) The Underwriters agree, severally and not jointly, to indemnify and
hold harmless BVAC and BVDC, its directors, each of BVDC's officers who sign the
Registration Statement, and each person, if any, who controls BVAC and BVDC
within the meaning of the Act, to the same extent as the foregoing indemnity
from BVAC and BVDC to the Underwriters, but only insofar as any losses, claims,
costs, damages, expenses (including reasonable attorneys fees, disbursements and
other charges of counsel), actions or liabilities (including the cost of any
investigation, legal and other expenses incurred in connection with the amounts
paid in settlement of any action, suit, proceeding or claim asserted) 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 BVAC and/or BVDC 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) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless each other Underwriter and each person, if any, who controls
such other Underwriter to the same extent as the foregoing indemnity from BVAC
and BVDC to the Underwriters, but only insofar as any losses, claims, costs,
damages, expenses (including reasonable attorneys fees, disbursements and other
charges of counsel), actions or liabilities (including the cost of any
investigation, legal and other expenses incurred in connection with the amounts
paid in settlement of any action, suit, proceeding or claim asserted) 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, or in any Computational Materials or Structural
Term Sheets insofar as they are required to be filed as part of the Registration
Statement pursuant to the No-Action Letters, in reliance on and in conformity
with information furnished in writing to BVAC and/or BVDC 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, and provided, however, that an
Underwriter will not be liable to the extent that any such loss, claim, cost,
damage, expense, action or liability arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission in any
Computational Materials or Structural Term Sheets that was included or omitted
in reliance upon and in conformity with information provided or approved by BVAC
or BVDC or their respective agents, accountants, or advisors. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have.
(d) 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), (b) or (c), such person (hereinafter called
the "indemnified party" for purposes of
-18-
this Article VIII) shall promptly notify the person against whom such indemnity
may be sought (hereinafter called the "indemnifying party" for purposes of this
Article VIII) in writing thereof; but the omission to notify the indemnifying
party timely shall not relieve such indemnifying party from any liability which
it may have to any indemnified party under the foregoing provisions of this
Article VIII unless and only to the extent that such omission results in the
forfeiture of substantive rights of the indemnifying party. If any such action
or other proceedings shall be brought against any indemnified party, the
indemnifying party shall, upon written notice given reasonably promptly
following the notice to the indemnifying party of such action or proceedings, be
entitled to assume the defense thereof at the indemnifying party's expense with
counsel chosen by the indemnifying party and reasonably satisfactory to the
indemnified party; provided, however, that any indemnified party may at its own
expense retain separate counsel to participate in such defense. Notwithstanding
the foregoing, each indemnified party shall have the right to employ separate
counsel at the indemnifying party's expense and to control its own defense of
such action or proceeding if, in the reasonable opinion of counsel to such
indemnified party, (i) there are or may be legal defenses available to such
indemnified party or to other indemnified parties that are different from or
additional to those available to an indemnifying party, (ii) a conflict or
potential conflict exists between an indemnifying party and such indemnified
party that would make such separate representation advisable, or (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the commencement of the action. 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 counsel shall be designated in writing by the
Underwriters in the case of parties indemnified pursuant to paragraph (a) of
this Article VIII, by BVDC in the case of parties indemnified pursuant to
paragraph (b) of this Article VIII and by the indemnified party in the case of
parties indemnified pursuant to paragraph (c) of this Article VIII. The
indemnifying party agrees that the indemnifying party will not, without prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
relating to any indemnification claim (whether or not any indemnified party is a
party thereto) unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability arising or
that may arise out of such claim, action or proceeding and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of such indemnified party.
(e) If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under paragraphs (a), (b) or (c) 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 BVAC and/or BVDC on the one hand, and the Underwriters on
the other, or to reflect the relative benefits received by each indemnifying
Underwriter on the one hand, and each indemnified Underwriter 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 BVAC and BVDC on the
-19-
one hand, and the Underwriters on the other, each indemnifying Underwriter on
the one hand, and each indemnified Underwriter 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 BVAC and BVDC on the one hand, and the
Underwriters on the other, each indemnifying Underwriter on the one hand, and
each indemnified Underwriter 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 BVAC and BVDC bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof or the proportion of
total underwriting discounts and commissions received by each Underwriter as
compared to each other Underwriter. The relative fault of BVAC and/or BVDC on
the one hand, and the Underwriters on the other, or each indemnifying
Underwriter on the one hand, and each indemnified Underwriter 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 BVAC and/or BVDC or
one or more of the Underwriters and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission.
(f) BVAC, BVDC 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 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 Underwriting
Agreement), and not joint.
(g) Each of BVAC and BVDC expressly waives, and agrees not to assert,
any defense to its indemnification or contribution obligations under this
Article VIII which it might otherwise assert based upon any claim that such
obligations are unenforceable under federal or state securities laws or by
reasons of public policy.
(h) The obligations of BVAC and BVDC under this Article VIII shall be
in addition to any liability which BVAC and BVDC may otherwise have (whether by
law or agreement) and shall extend upon the same terms and conditions to the
Underwriters and each Controlling Party; provided, however, that in no event
shall BVAC or BVDC be liable for double indemnification.
-20-
IX.
Termination. 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 is
not satisfied or because of any refusal, inability, or failure on the part of
BVDC or BVAC to perform any agreement herein or therein or comply with any
provision hereof shall not have been satisfied or fulfilled when and as required
to be fulfilled, this Agreement and the Underwriting Agreement may be terminated
by the Underwriters by notice to BVDC or BVAC at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Article VIII. This Agreement and each
Underwriting Agreement shall be subject to termination in the absolute
discretion of any Underwriters, by notice given to BVDC, if (i) after the
execution and delivery of this Agreement and prior to the Closing Date (A)
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., National Market
System, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade, (B) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, (C) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis, (D)
there shall have occurred any other calamity or crisis or any change in the
financial, political or economic conditions in the United States or elsewhere,
(E) trading of any securities of BVDC or BVAC or any of its respective
affiliates shall have been suspended on any exchange or in any over-the-counter
market, or (F) there has been any material disruption in commercial banking
securities settlement or clearance services, and (ii) the events specified in
clause (i) singly or together with any other such event makes it, in the
judgment of any Underwriter, impracticable or undesirable to proceed with the
completion and sale of the Offered Securities.
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
-21-
which such defaulting Underwriter or 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 BVDC 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 BVAC or BVDC. In any such case either the Representatives or
BVDC 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
BVAC or BVDC 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, BVAC or BVDC 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 this Section/Article and Sections V(h), VII, VIII and XIV 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 Acceptance Corporation
000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Loan Service Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bay View Deposit Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
-00-
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: North America ABS
XIII.
Successors. None of the obligations of BVAC or BVDC under this
Agreement or any Underwriting Agreement may be assigned without the prior
consent of the Underwriters. 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.
[SIGNATURE PAGE FOLLOWS]
-23-
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 among BVAC, BVDC
and the Representatives.
Very truly yours,
BAY VIEW DEPOSIT CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: EVP & Chief Financial Officer
BAY VIEW ACCEPTANCE CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxx
------------------------------------
Name: Xxxx Xxx
Title: Vice President
EXHIBIT A
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 applicable Transaction
Agreement;
(ii) the applicable Transaction 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 applicable Transaction 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 applicable
Transaction Agreement or the performance by the Trustee of the terms of the
applicable Transaction Agreement.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the applicable Transaction Agreement.
A-2
ANNEX I
FORM OF UNDERWRITING AGREEMENT
BAY VIEW DEPOSIT CORPORATION
BAY VIEW ACCEPTANCE CORPORATION,
AND
JPMorgan Securities Inc.
UNDERWRITING AGREEMENT
FOR
BAY VIEW 200[_]-[_] OWNER TRUST
AUTOMOBILE RECEIVABLE BACKED SECURITIES
[__________ __], 200[_]
I-1
[__________ __], 200[_]
Bay View Acceptance Corporation
000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Bay View Deposit Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We understand that Bay View Deposit Corporation, a Delaware corporation
("BVDC"), proposes to sell $[_______________] aggregate amount of Securities
designated "[ ________ ] Automobile Receivable Backed Securities, Series
200[_]-[__] - [_]" (the "Offered Securities"), issued by Bay View 200[_]-[__] -
[_] Owner 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 [S-__] 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 Securities] % % %
----------------------------------------------------------------------------------------------------------------------
[Per Class I Securities] % % %
----------------------------------------------------------------------------------------------------------------------
Total $ $ $
======================================================================================================================
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
[__________ __], 200[_], or at such other time as shall be designated by [us]
[the Underwriters] (such time, the "Closing Date").
Pursuant to Article V(i) of the Standard Provisions (as
defined below), during a period of [________] calendar days from
[______________], neither BVDC nor any affiliate of BVDC will, without [our]
[the Underwriters'] prior written consent, enter into any agreement to offer or
sell securities similar to the Offered Securities.
I-2
Pursuant to Article I of the Standard Provisions (as defined
below), the Credit Enhancer Documents consist of the following:
[___________________________________].
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 Owner Trusts, Automobile Receivable
Backed Securities, dated [__________ __], 200[_] (the "Standard Provisions"), by
and among Bay View Acceptance Corporation, Bay View Deposit Corporation, and
JPMorgan Securities Inc., 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.]
BVDC and Bay View Acceptance Corporation ("BVAC", together
with BVDC, the "Company") acknowledge and agree that each Underwriter is acting
solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of Offered Securities contemplated hereby
and in the Standard Provisions (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, the Underwriters are
not 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 its 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 thereto. 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.
Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such amendment, waiver, discharge or termination is sought.
I-3
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,
JPMorgan Securities Inc., as Underwriter
By: ___________________________________
Name:
Title:
Accepted: [__________ __], 200[_]
BAY VIEW DEPOSIT CORPORATION
By: ___________________________________
Name:
Title:
BAY VIEW ACCEPTANCE CORPORATION
By: ___________________________________
Name:
Title:
ANNEX A
[Copy of Prospectus]
