EXHIBIT 1.1
____________________ 200_-_
[$__________ CLASS A-1 _____% ASSET BACKED NOTES
$__________ CLASS A-2 _____% ASSET BACKED NOTES
$__________ CLASS A-3 _____% ASSET BACKED NOTES
$__________ ASSET BACKED CERTIFICATES](1)
[$__________ ASSET BACKED CERTIFICATES, CLASS A
$__________ ASSET BACKED CERTIFICATES, CLASS B]
BAS SECURITIZATION LLC
(Company)
__________________________________________
(Sponsor)
__________________________________________
(Sponsor SPE)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
BANC OF AMERICA SECURITIES LLC
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
----------
(1) This form of Underwriting Agreement contains alternative provisions that
relate to offerings of Asset Backed Certificates, on the one hand, and
Asset Backed Notes and Asset Backed Certificates, on the other hand.
Ladies and Gentlemen:
BAS Securitization LLC, a Delaware limited liability company (the
"Company") and a wholly owned, special purpose, bankruptcy remote subsidiary of
NB Holdings Corporation, a Delaware corporation, proposes to sell to the
Underwriters listed in Schedule I hereto (the "Underwriters") [$__________
aggregate principal amount of Class A-1 _____% Asset Backed Notes (the "Class
A-1 Notes"), $__________ aggregate principal amount of Class A-2 _____% Asset
Backed Notes (the "Class A-2 Notes"), $__________ aggregate principal amount of
Class A-3 _____% Asset Backed Notes (the "Class A-3 Notes" and, together with
the Class A-1 Notes and the Class A-2 Notes, the "Notes"), set forth in Section
I hereof] [$__________ aggregate principal amount of ___% Asset Backed
Certificates, Class A (together with the Tail Certificate described below, the
"Class A Certificates") and $__________ aggregate principal amount of ___% Asset
Backed Certificates, Class B (the "Class B Certificates", and together with the
Class A Certificates, the "Securities" or the "Certificates"), set forth in
Section I hereof]. The [Securities] [Notes] are issued by the
____________________ 200_-_ (the "Trust"). The Trust also will issue $__________
aggregate principal amount of certificates (the "Certificates" and, together
with the Notes, the "Securities"). Each Certificate will represent a fractional
undivided interest in the Trust. [Each Note will be secured by the assets of the
Trust pursuant to the Indenture (as hereinafter defined).]
The assets of the Trust (the "Trust Property") include, among other things,
a pool of retail motor vehicle loans and/or retail installment sale contracts
secured by new and used automobiles, motorcycles, vans, trucks, buses and/or
trailers, light duty trucks and other similar vehicles (the "Receivables") and
certain monies received under the Receivables [on and] after __________ __, 200_
(the "Cutoff Date"), such Receivables to be serviced for the Trust by
____________________ in its capacity as servicer (in such capacity, the
"Servicer").
The Receivables will be sold to __________, a __________ (the "Sponsor") by
the Servicer pursuant to a Purchase Agreement, dated as of the Closing Date (the
"Sponsor Purchase Agreement") between the Sponsor and the Servicer, and to the
Company by the Sponsor pursuant to a Purchase Agreement, dated as of the Closing
Date (the "Company Purchase Agreement") between the Company and the Sponsor. The
Receivables will be conveyed by the Company to the Trust pursuant to a [Pooling
and Servicing Agreement] [Sale and Servicing Agreement] dated as of the Closing
Date (the ["Pooling and Servicing Agreement"] ["Sale and Servicing Agreement"])
among the Company, the Servicer[, [Indenture Trustee], as indenture trustee (the
"Indenture Trustee")] and __________, as [owner] trustee (the "[Owner]
Trustee")].
[The Notes will be issued pursuant to an Indenture to be dated as of the
Closing Date (the "Indenture") between the Trust and the Indenture Trustee. The
Servicer will agree to perform certain administrative tasks pursuant to an
Administration Agreement to be dated as of the Closing Date (the "Administration
Agreement") among the Servicer, the Trust and the Indenture Trustee. The
Certificates will be issued pursuant to [an] [a] [Amended and Restated] Trust
Agreement to be dated as of the Closing Date (the "Trust Agreement") between the
Company and the Owner Trustee.] [The Class A Certificates will be issued in an
aggregate principal amount of $__________, which is equal to approximately ___%
of the aggregate principal balance of the Receivables as of the Cutoff Date, and
$__________ aggregate principal amount of the Class A Certificates (the "Tail
Certificate") will initially be retained by _______. The
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Class B Certificates will be issued in an aggregate principal amount of
$__________, which is equal to approximately ___% of the aggregate principal
balance of the Receivables as of the Cutoff Date. Payments in respect of the
Class B Certificates are, to the extent provided in the Pooling and Servicing
Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement.]
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean the latest of the dates that the
Registration Statement or the most recent post-effective amendment thereto
became effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Rule 424" refers to
such rule under the Securities Act of 1993, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"). "Basic
Documents" shall mean the Sponsor Purchase Agreement, the Company Purchase
Agreement, [the Reserve Account Agreement,] the [Pooling and Servicing
Agreement] [Sale and Servicing Agreement], [the Indenture, the Trust Agreement,
the Administration Agreement, the Certificate Purchase Agreement with respect to
the Certificates (the "Certificate Purchase Agreement"),] this Agreement, the
Securities and [each] [the] Depository Agreement. "Participating Entity" means
each of the Servicer and the Sponsor. "Securityholder" means any Noteholder and
any Certificateholder and "Security Owner" means the beneficial owner of any
Note or Certificate. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in [the Pooling and Servicing
Agreement] [Appendix X to the Sale and Servicing Agreement].
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the Act, a
shelf registration statement on Form S-3 (having the registration number stated
in the applicable Terms Agreement a form of which is attached hereto as Exhibit
A (the "Terms Agreement")), including a form of prospectus, relating to the
[Securities] [Notes]. The registration statement as amended has been declared
effective by the Commission. If any post-effective amendment has been filed with
respect thereto, prior to the execution and delivery of the applicable Terms
Agreement, the most recent such amendment has been declared effective by the
Commission. Such registration statement, as amended at the time of
effectiveness, including all material incorporated by reference therein and
including all information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B under the Act, is
referred to in this Agreement as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b) under the Act
("Rule 424(b)") a supplement (the "Prospectus Supplement") to the prospectus
included in the Registration Statement (such prospectus, in the form it appears
in the Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b), is hereinafter referred to as the
"Basic Prospectus") relating to the [Securities] [Notes] and the method of
distribution thereof. The Basic Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, is hereinafter
referred to as the "Prospectus."
Prior to the time the first contract of sale for the [Securities] [Notes]
designated in the applicable Terms Agreement was entered into (the "Time of
Sale"), the Company will prepare a preliminary Prospectus, dated [_______] [_],
20[__] subject to completion). As used herein, "Preliminary Prospectus" means,
with respect to any date or time referred to herein, the most
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recent preliminary Prospectus (as amended or supplemented, if applicable), which
has been prepared and delivered by the Company to the Underwriters in accordance
to the provisions hereof.
1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations, warranties and covenants herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company, the respective aggregate principal amounts and classes of
[Securities] [Notes] set forth opposite such Underwriter's name in Schedule I
hereto. The purchase price for the [Securities] [Notes] of any class will be the
applicable percentage set forth on Schedule I hereto of the aggregate principal
amount of such class purchased [, plus, in each case, accrued interest, if any,
on the principal amount thereof at the applicable [Interest Rate or] Certificate
Rate (as such terms are defined in the Prospectus), as the case may be, from
(but excluding) __________, 200_, to (and including) the Closing Date.]
2. The Company understands that the Underwriters intend (i) to make a
public offering of the [Securities] [Notes] purchased by the Underwriters
hereunder as soon after the Registration Statement and this Agreement have
become effective as in the judgment of the Company and the Representative is
advisable and (ii) initially to offer the [Securities] [Notes] purchased by the
Underwriters hereunder upon the terms set forth in the Preliminary Prospectus.
3. Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made to the Company or to its order by wire transfer of same
day funds at the office of [___________], New York, New York, time on __________
__, 200_, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as the Representative and the Company may
agree upon in writing (the "Closing Date"). As used herein, the term "Business
Day" means any day other than a day on which banks generally are permitted or
required to be closed in New York, New York, or __________, __________.
Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made against delivery to the Representative for the
respective accounts of the Underwriters on the Closing Date of such [Securities]
[Notes] in definitive form registered in the name of Cede & Co. as nominee of
The Depository Trust Company and in such denominations, as permitted by the
Basic Documents, as the Representative shall request in writing not later than a
reasonable time prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the [Securities] [Notes]
duly paid by the Company. [The Company shall make such definitive certificates
representing the [Securities] [Notes] available for inspection by the
Representative at the office of ____________________ not later than [1:00 P.M.],
[City, State] time, on the Business Day prior to the Closing Date.]
4. The Company represents, warrants and covenants to each Underwriter that:
(a) The Registration Statement, including amendments thereto as may
have been required on or prior to the date hereof, relating to the
[Securities] [Notes], has been filed with the Commission and such
Registration Statement as amended has become effective. The conditions to
the use by the Company of a Registration Statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, have been
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satisfied with respect to the Registration Statement, the Prospectus and
the Preliminary Prospectus.
(b) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects with the
applicable requirements of the Act, and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and, on the Closing Date, the Registration Statement, the
Prospectus and the Preliminary Prospectus will conform in all material
respects with the applicable requirements of the Act, and none of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, with respect to the
Preliminary Prospectus, the omission of pricing and price-dependent
information shall, of necessity, appear only in the final Prospectus;
provided, further, that the foregoing does not apply to information
contained in or omitted from any of the documents based upon written
information furnished to the Company or the Participating Entities by the
Underwriters through the Representatives specifically for use in connection
with the preparation of the Registration Statement, the Prospectus or the
Preliminary Prospectus.
(c) The Preliminary Prospectus at the Time of Sale did not, and at the
Closing Date will not, include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that no representation
or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear
only in the final Prospectus); provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company or the Participating Entities in
writing by such Underwriter through the Representatives expressly for use
in the Preliminary Prospectus.
(d) Other than the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any "written communication" (as defined in
Rule 405 under the Act) that constitutes an offer to sell or solicitation
of an offer to buy the [Securities] [Notes].
(e) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission, and (i) on the Effective Date of the Registration Statement,
the Registration Statement conformed in all material respects to the
requirements of the Act, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements therein not misleading and
(ii) at the time of filing of the Preliminary Prospectus and the Prospectus
pursuant to Rule 424(b) and on the Closing Date the Registration Statement
will conform in all material respects to the requirements
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of the Act, and such document will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions contained in the Preliminary Prospectus and the
Prospectus other than the Depositor Information (as defined herein).
(f) The Company is a limited liability company that is duly organized,
validly existing and in good standing under the laws of Delaware, with
power and authority to own its properties and conduct its business as now
conducted by it and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables and the
other Trust Property. The Company has the power, authority and legal right
to execute, deliver and perform this Agreement and each of the other Basic
Documents to which it is a party and to carry out their respective terms
and to sell and assign the respective property to be sold and assigned to
and deposited with the [Trust] [Owner Trustee] as Trust Property.
(g) The execution, delivery and performance by the Company of each of
the Basic Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
the Company by all necessary limited liability company action. The Basic
Documents to which the Company is a party have been duly executed and
delivered by the Company and, when executed and delivered by the Company
and the other parties thereto, each of such Basic Documents will constitute
a legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its respective terms, subject, to
enforceability, to applicable bankruptcy, insolvency, reorganization,
moratorium, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific remedies.
(h) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by the Company of any of the Basic Documents to
which it is a party or the consummation of the transactions contemplated
hereby or thereby except such as have been obtained and made under the Act
or state securities laws and any filings of UCC financing statements.
(i) The Company is not in violation of its organizational documents or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to which it
is a party or by which it is bound which violation or default would have a
material adverse effect on the transactions contemplated herein or in the
Basic Documents. The execution, delivery and performance by the Company of
the Basic Documents to which it is a party, the consummation of the
transactions contemplated hereby and thereby and the compliance with the
terms and provisions hereof and thereof will not conflict with or result in
a breach or violation of any of the terms and provisions of, constitute
(with or without notice or lapse of time or both) a default under or result
in the creation or imposition of any Lien (other than as contemplated by
the Basic Documents) upon any of its properties
6
pursuant to the terms of, (A) the organizational documents of the Company,
(B) any indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which the Company is a party or by which the
Company is bound, which violation or default would have an adverse effect
on the transactions contemplated herein or in the Basic Documents or (C)
any law, order, rule or regulation applicable to the Company of any
regulatory body, any court, administrative agency or other governmental
instrumentality having jurisdiction over the Company.
(j) There are no proceedings or investigations pending, or to the
knowledge of the Company threatened, to which the Company is a party before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) that are required to be disclosed in the
Registration Statement and which are not so disclosed, (ii) asserting the
invalidity of this Agreement or any of the Basic Documents, (iii) seeking
to prevent the issuance of the [Securities] [Notes] or the consummation of
any of the transactions contemplated by this Agreement or any of the Basic
Documents, (iv) seeking any determination or ruling that might adversely
affect the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic
Documents, (v) that may adversely affect the federal or state income,
excise, franchise or similar tax attributes of any of the [Securities]
[Notes], or (vi) which, if determined adversely, could individually or in
the aggregate reasonably be expected to adversely affect the interests of
the holders of any of the [Securities] [Notes] or the marketability of any
of the [Securities] [Notes].
(k) There are no contracts or other documents to which the Company is
a party of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement pursuant to the Act which are not filed or described as required.
(l) The representations and warranties of the Company contained in the
Basic Documents to which it is a party are true and correct as of the dates
of the respective Basic Documents.
(m) By assignment and delivery of each of the Receivables to the Trust
as of the Closing Date, the Company will transfer title in the Receivables
to the Trust, subject to no Lien created by the Company prior or equal to
the ownership or security interest granted to the Trust.
(n) The Company is not, and on the date on which the first bona fide
offer of the [Securities] [Notes] is made, the Company will not be an
"ineligible issuer," as defined in Rule 405 under the Act.
5. Each Participating Entity represents and warrants (jointly and
severally) to and agrees with each Underwriter that:
(a) As of the Closing Date, the Registration Statement, the
Preliminary Prospectus and the Prospectus, except with respect to any
modification to which the Representatives have agreed in writing, shall be
in all substantive respects in the form
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furnished to the Representatives before such date or, to the extent not
completed on such date, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus that has previously been furnished to the
Representatives) as the Participating Entity has advised the
Representatives, before such time, will be included or made therein.
(b) On the date of this Agreement, the Preliminary Prospectus and the
Prospectus conforms in all material respects to the requirements of the
Act, and does not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that no representation or
warranty is made with respect to the omission of pricing and
price-dependant information, which information shall of necessity appear
only in the final Prospectus) and (ii) at the time of filing of the
Preliminary Prospectus and the Prospectus pursuant to Rule 424(b) and on
the Closing Date the Preliminary Prospectus and the Prospectus will conform
in all material respects to the requirements of the Act, and the
Preliminary Prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of [Securities] [Notes] will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System ("XXXXX"), except to the extent
permitted by Regulation S-T; and such documents will not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however that no representation or warranty is made with respect to the
omission of pricing and price-dependant information in the Preliminary
Prospectus, such information shall of necessity appear only in the final
Prospectus; provided, further, that this representation and warranty shall
not apply to any statements or omissions (x) made in reliance upon and in
conformity with information furnished to the Participating Entities in
writing by any Underwriter through the Representative expressly for use in
the Preliminary Prospectus and the Prospectus (collectively, "Underwriter
Information") or (y) under the caption "The Depositor" in the Base
Prospectus (the "Depositor Information"). Each Participating Entity hereby
agrees with the Underwriters that, for all purposes of this Agreement, the
only Underwriter Information furnished consists of [the statements in the
first sentence of the [______] paragraph under the caption "Underwriting"
in the Prospectus Supplement regarding the Underwriters' intention to make
a market in the [Securities] [Notes]].
(c) The Preliminary Prospectus at the Time of Sale did not, and at the
Closing Date will not, include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
(it being understood that no representation or warranty is made with
respect to the omission of pricing and price-dependent information, which
information shall of necessity appear only in the final Prospectus);
provided, however, that the Participating Entity makes no representation or
warranty with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Participating Entity in writing by such Underwriter through the
Representatives expressly for use in the Preliminary Prospectus.
8
(d) Other than the Preliminary Prospectus and the Prospectus, the
Participating Entity (including its agents and representatives other than
the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any "written communication" (as defined in
Rule 405 under the Act) that constitutes an offer to sell or solicitation
of an offer to buy the [Securities] [Notes].
(e) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Prospectus and the Preliminary
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations") and, when read
together with the other information in the Preliminary Prospectus and the
Prospectus, at the time the Registration Statement became effective, at the
date of each of the Preliminary Prospectus, the Prospectus and at the
Closing Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, no representation or warranty
is made as to documents deemed to be incorporated by reference in the
Registration Statement as the result of filing any Current Report on Form
8-K at the request of the Underwriters.
(f) The computer tapes with respect to the Receivables to be sold to
the Trust created as of the Cutoff Date (the "Computer Tapes"), and made
available to the Representative by the Sponsor [and __________,
respectively,] were complete and accurate as of the date thereof.
(g) Such Participating Entity is either a ___________ or _____________
that is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, with power and authority to own
its properties and conduct its business as now conducted by it and had at
all relevant times, and has, full power, authority and legal right to
acquire, own and sell the Receivables and the other Trust Property. Such
Participating Entity has the power, authority and legal right to execute,
deliver and perform this Agreement and each of the other Basic Documents to
which it is a party and to carry out their respective terms and to sell and
assign the respective property to be sold and assigned to and deposited
with the [Trust] [Owner Trustee] as Trust Property.
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Basic Documents and duly executed and
authenticated by the [Owner] Trustee [and the Indenture Trustee, as
applicable,] will be duly and validly issued, authenticated and delivered
and entitled to the benefits provided by the Basic Documents. The
execution, delivery and performance by such Participating Entity of each of
the Basic Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
such Participating Entity by all necessary action. The Basic Documents to
which such Participating Entity is a party have been duly executed and
delivered by such Participating Entity and, when executed and delivered by
such Participating Entity and the other parties thereto, each of such Basic
Documents will constitute a legal, valid and binding obligation of such
9
Participating Entity, enforceable against such Participating Entity in
accordance with its respective terms, subject, to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies. The [Securities]
[Notes] and the Basic Documents conform to the descriptions thereof in the
Preliminary Prospectus and the Prospectus in all material respects. [The
Notes and the Indenture have been duly executed and delivered by the Trust
and, when the Indenture is executed and the Notes are authenticated by the
Indenture Trustee, the Indenture and the Notes will constitute legal, valid
and binding obligations of the Trust, enforceable in accordance with their
respective terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights of
creditors generally and to equitable limitations on the availability of
specific remedies.]
(i) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by such Participating Entity of any of the Basic
Documents to which it is a party or the consummation of the transactions
contemplated hereby or thereby except such as have been obtained and made
under the Act or state securities laws and any filings of UCC financing
statements.
(j) Such Participating Entity possesses such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Participating Entity is in compliance with the terms
and conditions of all such Governmental Licenses; all of the Governmental
Licenses are valid and in full force and effect; and the Participating
Entity has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in an adverse effect, would have an adverse effect on
its ability to perform its obligations under each Basic Document to which
it is a party or would render any of the Receivables unenforceable.
(k) Such Participating Entity is not in violation of its
organizational documents or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any agreement or instrument to which it is a party or by which it is bound
which violation or default would have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The execution,
delivery and performance by such Participating Entity of the Basic
Documents to which it is a party, the consummation of the transactions
contemplated hereby and thereby and the compliance with the terms and
provisions hereof and thereof will not conflict with or result in a breach
or violation of any of the terms and provisions of, constitute (with or
without notice or lapse of time or both) a default under or result in the
creation or imposition of any Lien (other than as contemplated by the Basic
Documents) upon any of its properties pursuant to the terms of, (A) the
organizational documents or bylaws of such Participating Entity, (B) any
indenture, contract, lease, mortgage, deed of trust or
10
other instrument or agreement to which such Participating Entity is a party
or by which such Participating Entity is bound, which violation or default
would have an adverse effect on the transactions contemplated herein or in
the Basic Documents or (C) any law, order, rule or regulation applicable to
such Participating Entity of any regulatory body, any court, administrative
agency or other governmental instrumentality having jurisdiction over such
Participating Entity.
(l) There are no proceedings or investigations pending, or to the
knowledge of such Participating Entity threatened, to which such
Participating Entity is a party before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (i)
that are required to be disclosed in the Preliminary Prospectus and the
Prospectus and are not so disclosed, (ii) asserting the invalidity of this
Agreement or any of the Basic Documents, (iii) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iv) seeking
any determination or ruling that might adversely affect the performance by
such Participating Entity of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents, (v) that
may adversely affect the federal or state income, excise, franchise or
similar tax attributes of any of the [Securities] [Notes], or (vi) which,
if determined adversely, could individually or in the aggregate reasonably
be expected to adversely affect the interests of the holders of any of the
[Securities] [Notes] or the marketability of any of the [Securities]
[Notes].
(m) There are no contracts or other documents of a character required
to be described in the Preliminary Prospectus and the Prospectus pursuant
to the Act which are not filed or described as required.
(n) Since the respective dates as of which information is given in the
Registration Statement, the Prospectus and the Preliminary Prospectus,
except as otherwise set forth therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Participating
Entities, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Participating Entities,
other than those in the ordinary course of business, which are material
with respect to such entity and (C) there has been no material adverse
change in the financial statements of the Participating Entities.
(o) The representations and warranties of such Participating Entity
contained in the Basic Documents to which it is a party are true and
correct as of the dates of the respective Basic Documents.
(p) By assignment and delivery of each of the Receivables to the
Sponsor SPE by the Sponsor and to the Company by the Sponsor SPE as of the
Closing Date, the Sponsor will transfer title in such Receivables to the
Sponsor SPE and the Sponsor SPE will transfer title of such Receivables to
the Company, subject to no Lien prior or equal to the ownership interest
granted to the Sponsor SPE or the Company, as applicable.
11
(q) ____________________ are independent public accountants with
respect to the Participating Entities within the meaning of the Act.
(r) At any time prior to the Closing Date, the Representative has the
right to inspect the Receivables files and the related loan origination
procedures and to confirm the existence of the related new and used
automobiles, motorcycles, vans, trucks, buses and/or trailers, light duty
trucks and other similar vehicles to ensure conformity with the Preliminary
Prospectus and the Prospectus.
(s) At the Closing Date, each Receivable will constitute a legal,
valid and binding instrument, enforceable against the related obligor in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, and to general principles of equity (whether considered
in a proceeding at law or in equity), and will meet the criteria for
selection described in the Preliminary Prospectus and the Prospectus.
6. Each Participating Entity and the Company, as applicable, covenants and
agrees (severally and not jointly) with the Underwriters that:
(a) Prior to the termination of the offering of the [Securities]
[Notes], the Company will not file or cause to be filed any amendment of
the Registration Statement or supplement to the Preliminary Prospectus or
the Prospectus without first furnishing to the Representative a copy of the
proposed amendment or supplement and giving the Representative a reasonable
opportunity to review the same. Subject to the foregoing sentence, the
Company will cause the Preliminary Prospectus and the Prospectus, properly
completed, and any supplement thereto, to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed. The Company will promptly advise the Underwriters (i) when the
Preliminary Prospectus or the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b), (ii) when any
amendment to the Registration Statement shall have become effective, (iii)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Preliminary Prospectus or the Prospectus or
for any additional information, (iv) of the receipt by the Company of
notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of notification with respect to the suspension of
the qualification of the [Securities] [Notes] for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof. The receipt by the Representative of any amendment or supplement
to the Registration Statement, the Preliminary Prospectus or Prospectus, as
applicable, shall not be deemed a waiver of any condition set forth in
Section 8 hereof. If received in a timely manner in compliance with Section
10(b)(iii) of this Agreement, the Company and the Participating Entities
will file with the Commission any Underwriting Free Writing Prospectus to
the extent such filing is required by Rule 433(d) of the Act.
12
(b) The Company will deliver, at its expense, to the Representative,
two signed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits, and, during the
period mentioned in paragraph (c) below, the Participating Entities will
deliver, at their expense, to each Underwriter as many copies of the
Preliminary Prospectus or the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request. [The
Company will furnish or cause to be furnished to the Representative copies
of all reports required by Rule 463 under the Act.]
(c) If, during such period of time after the first date of the public
offering of the [Securities] [Notes] as in the opinion of counsel for the
Underwriters a prospectus relating to the [Securities] [Notes] is required
by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend
or supplement the Preliminary Prospectus or the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Preliminary Prospectus or the Prospectus is delivered to a purchaser, not
materially misleading, or it is necessary to amend or supplement the
Preliminary Prospectus or the Prospectus to comply with applicable law, the
Participating Entities will forthwith prepare and furnish, at the expense
of the Participating Entities, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the
Participating Entities) to which [Securities] [Notes] may have been sold by
the [Representative on behalf of the] Underwriters and upon request by the
Representative to any other dealers identified by the Representative, such
amendments or supplements to the Preliminary Prospectus or the Prospectus
as may be necessary so that the statements in the Preliminary Prospectus or
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Preliminary Prospectus or the Prospectus is
delivered to a purchaser, be materially misleading or so that the
Preliminary Prospectus or the Prospectus will comply with applicable law.
Neither the Company's or the Participating Entities consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 8.
(d) The Company will endeavor to qualify the [Securities] [Notes] for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the [Securities] [Notes] and the Participating Entities will pay all
reasonable fees and expenses (including fees and disbursements of counsel
to the Representative to the extent provided in Section 6(iii) hereof)
incurred in connection with such qualification and in connection with the
determination of the eligibility of the [Securities] [Notes] for investment
under the laws of such jurisdictions as the Representative may designate;
provided, however, that the Company shall not be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified; and
provided further that the Company shall not be required to file a general
consent to service of process in any jurisdiction.
(e) [On or before __________, 200_ the] [The] Participating Entities
will cause the Trust to make generally available to Securityholders and to
the Representative
13
all financial information required to be sent to Securityholders pursuant
to the Basic Documents.
(f) For the period from the date of this Agreement until the
retirement of all of the Securities the Participating Entities will, or
will cause the Servicer to, furnish to the Representative (i) copies of
each Servicer's Certificate and the annual statements of compliance
delivered to the [Owner] Trustee [or Indenture Trustee] pursuant to the
Basic Documents and the annual independent certified public accountant's
servicing reports furnished to the [Owner] Trustee [or Indenture Trustee]
pursuant to the Basic Documents, by first-class mail at the same time such
statements and reports are furnished to the [Owner] Trustee [or Indenture
Trustee], (ii) copies of each amendment to any of the Basic Documents,
(iii) copies of all other reports and communications to any Securityholders
or Security Owners, or to or from the [Owner] Trustee, [Indenture Trustee],
the Clearing Agency, any Rating Agency or the Commission relating to the
Trust or the Securities, (iv) copies of each Opinion of Counsel and
Officer's Certificate delivered pursuant to the Basic Documents, as soon as
available, and (v) from time to time, such other information concerning the
Trust or the Participating Entities as the Representative may reasonably
request.
(g) If required, the Company will register the [Securities] [Notes]
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to __________ __, 200_.
(h) To the extent, if any, that the ratings provided with respect to
the [Securities] [Notes] by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by any
Participating Entity or the Company, the Sponsor shall furnish or cause to
be furnished such documents and use reasonable efforts to take any such
other action.
(i) The Participating Entities will not, without the prior written
consent of the Representative, publicly offer or sell in the United States
any asset backed notes or asset backed certificates or other similar
securities representing interests in or secured by motor vehicle loans
and/or retail installment sale contracts secured by new and/or used
automobiles, motorcycles, vans, trucks, buses and/or trailers, light duty
trucks and/or other similar vehicles originated or owned by any of the
Participating Entities for a period of thirty days following the
commencement of the offering of the [Securities] [Notes] to the public.
(j) Each Participating Entity will apply the net proceeds from the
sale of the Securities in the manner set forth in the related Preliminary
Prospectus and Prospectus.
(k) None of the Company, any Participating Entity or the Trust is, and
the issuance and sale of the Securities in the manner contemplated by the
Preliminary Prospectus and the Prospectus will not cause the Company, any
Participating Entity or the Trust to become, subject to registration or
regulation as an "investment company" or an affiliate of an "investment
company" under (and as defined in) the Investment Company Act of 1940, as
amended.
14
7. The Participating Entities will pay (or will promptly reimburse the
Company and/or the Underwriters to the extent that the Company and/or the
Underwriters shall have paid or otherwise incurred) all costs and expenses
incident to the performance of their respective obligations under this
Agreement, including, without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the [Securities] [Notes], (ii) incident to the
preparation, printing (or otherwise reproducing), filing and delivery under the
Act of the Registration Statement, the Prospectus and the Preliminary Prospectus
(including in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and determination
of eligibility for investment of the [Securities] [Notes] under the laws of such
jurisdictions as the Representative may designate (including fees and
disbursements of counsel for the Underwriters with respect thereto, (iv) related
to any filing with the National Association of Securities Dealers, Inc., (v) in
connection with the preparation, printing (including word processing and
duplication costs) and delivery of this Agreement, the Basic Documents and such
other documents as may be required in connection with the issuance, offering,
purchase, sale or delivery of the [Securities] [Notes] and any Blue Sky
Memorandum and the furnishing to the Underwriters and dealers of copies of the
Registration Statement, the Preliminary Prospectus and the Prospectus (including
exhibits, amendments and supplements thereto) as herein provided, (vi) the fees
and disbursements of the counsel of the Participating Entities and the Company
and accountants and other advisors and all fees and disbursements of
Underwriters' counsel, (vii) any fees and expenses payable to the Clearing
Agency, (viii) any fees and expenses payable to the Rating Agencies in
connection with the rating of the [Securities] [Notes] and (ix) any fees and
expenses of the [Owner] Trustee[, the Indenture Trustee and
____________________, as the collateral agent] including the fees and
disbursements of their respective counsel.
8. The obligations of the Underwriters to purchase and pay for the
[Securities] [Notes] will be subject to the accuracy, as of the date hereof and
the Closing Date, of the representations, warranties and covenants on the part
of the Participating Entities and the Company herein, to the accuracy of the
statements of officers of the Participating Entities and the Company made in any
writing delivered at the Closing pursuant to the provisions hereof, to the
performance by each of the Participating Entities and the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) At each of the time this Agreement is executed and delivered by
the Participating Entities and the Company and at the Closing Date,
____________________ shall have furnished to the Representative letters
dated, respectively, as of the date of [this Agreement] and as of the
Closing Date, substantially in the forms of the drafts to which the
Representative previously agreed and otherwise in form and substance
satisfactory to the Representative and ____________________, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" with respect to the specified financial and other
information concerning the Sponsor and certain financial, statistical and
other information contained in the Preliminary Prospectus and the
Prospectus.
(b) The Preliminary Prospectus and the Prospectus used to confirm
sales of [Securities] [Notes] shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the Act and in accordance
15
with Section 5(a) of this Agreement and, if received in a timely manner in
compliance with Section 10(b)(iii) of this Agreement, the Company and the
Participating Entities will file with the Commission any Underwriting Free
Writing Prospectus to the extent such filing is required by Rule 433(d) of
the Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or, to the knowledge of the Company, contemplated by the
Commission; and all requests for additional information from the Commission
with respect to the Registration Statement shall have been complied with to
the reasonable satisfaction of the Representative.
(c) The Representative shall have received officer's certificates,
dated the Closing Date, signed by any Vice President, Secretary or more
senior officer of each Participating Entity, representing and warranting
that, as of the Closing Date, the representations and warranties of such
Participating Entity in this Agreement and the Basic Documents are true and
correct, that such Participating Entity has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder or under the Basic Documents at or prior to the Closing Date, and
that since __________ __, 200_, there has been no material adverse change,
or any development involving a material adverse change, in or affecting
particularly the [Sponsor's] portfolio of motor vehicle loans or the
business or properties of the Trust, any Participating Entity or its
Affiliates which materially impairs the investment quality of the
[Securities] [Notes].
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material adverse change, or any development
involving a material adverse change, in or affecting the business,
operations, financial condition or properties of the Trust, the Company,
any Participating Entity or its Affiliates which, in the reasonable
judgment of the Representative, materially impairs the investment quality
of the [Securities] [Notes] or makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the [Securities]
[Notes], (ii) any downgrading in the rating assigned to any debt securities
of any Participating Entity by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)(2) under the
Act), and no such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any such debt securities.
(e) ____________________, counsel of the Participating Entities, shall
have furnished to the Representative his written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative and its
counsel, with respect to certain corporate matters [and securities law
matters] [security interest matters] relating to each Participating Entity.
(f) [___________] special counsel to the Company, shall have furnished
to the Representative its written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative and its counsel, with
respect to certain corporate matters [and securities law matters] [security
interest matters] relating to the Company.
16
(g) [___________], special counsel to the Participating Entities,
shall have furnished to the Representative its written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative and
its counsel, with respect to such matters as the Representative may
request.
(h) [___________], special counsel to the Participating Entities,
shall have furnished its written opinion, dated the Closing Date, with
respect to (i) nonconsolidation under the Bankruptcy Code of the assets and
liabilities of the Sponsor SPE on the one hand, and those of either the
Sponsor or any other Affiliate subject to the Bankruptcy Code on the other,
in the event the Sponsor or any such Affiliate were to become the subject
of a case under the Bankruptcy Code, and (ii) the characterization of the
transfer of the Receivables from the Sponsor to the Sponsor SPE.
(i) The Representative shall have received an opinion of [__________],
counsel to the Underwriters dated the Closing Date, with respect to the
validity of the Securities and such other related matters as the
Representative shall require and the Participating Entities shall have
furnished or caused to be furnished to such counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon such
matters.
(j) The Representative shall have received an opinion addressed to the
Underwriters from counsel to the [Owner] Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and its
counsel.
(k) [The Representative shall have received from counsel for the
Indenture Trustee a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel.]
(l) [____________________ shall have furnished its written opinion,
dated the Closing Date, that the Trust and the Indenture Trustee will have
a first priority perfected security interest in the Financed Vehicles
located in the State of __________ and such opinion shall be satisfactory
in form and substance to the Representative.]
(m) If any Rating Agency shall have requested any legal opinion,
officer's certificate or other document not required by this Agreement, the
Representative also shall have received such legal opinion, officer's
certificate or other document together with a letter from the party
delivering such opinion, certificate or document allowing the Underwriters
to rely on such opinion, certificate or document as if it were addressed to
the Underwriters.
(n) At the Closing Date, the Class __ Notes shall be rated "____" by
Xxxxx'x, "____" by Fitch and "____" by Standard and Poor's and the Class __
Certificates shall be rated "____" by Xxxxx'x, "____" by Fitch and "____"
by Standard and Poor's, and the Company shall have delivered to the
Underwriters a letter dated the Closing Date from each Rating Agency, or
other evidence satisfactory to the Underwriters, confirming that the Notes
and the Certificates have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
17
assigned to the Notes, the Certificates or any other securities of the
Company, the Participating Entities or any of their respective Affiliates
by any "nationally recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and no such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of the Notes or any other securities of the
Company, the Participating Entities or any of their respective Affiliates.
(o) On the Closing Date, the representations and warranties of the
Company and Participating Entities herein and in the Basic Documents will
be true and correct.
(p) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of this
Agreement and the Basic Documents shall have been paid by the Participating
Entities at or prior to the Closing Date.
(q) The Participating Entities shall have made or caused to be made a
deposit in the Reserve Account in the amount of the Reserve Account Initial
Deposit.
(r) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been
filed in the offices of the Secretaries of State of [list of filing
locations] reflecting the interest of each Participating Entity, the
Company[,] [and] the Trust [and the Indenture Trustee] in the Receivables,
the other Trust Property and the proceeds thereof.
9. The Company, the Participating Entities and the Underwriters agree to
the following indemnification and contribution provisions:
(a) Each Participating Entity jointly and severally (except as
otherwise set forth at the conclusion of this paragraph) agrees to
indemnify and hold harmless each Underwriter and the Company and each
person, if any, who controls each Underwriter or the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses
reasonably incurred in connection with investigating, preparing or
defending any suit, action or proceeding or any claim asserted), incurred
by such Underwriter or the Company or such controlling person and caused by
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus (each as amended or supplemented if the Participating Entities
or the Company shall have furnished such amendments or supplements thereto;
provided, however, with respect to the Preliminary Prospectus, such
indemnification does not include the omission of pricing and
price-dependant information, which information shall of necessity appear
only in the final Prospectus) or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission
18
or alleged untrue statement or omission made in reliance upon and in
conformity with the Underwriter Information or the Company Information.
(b) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls each Underwriter within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses reasonably incurred
in connection with investigating, preparing or defending any suit, action
or proceeding or any claim asserted), incurred by such Underwriter or such
controlling person and caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (as
amended or supplemented if the Company shall have furnished such amendments
or supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission in the Preliminary
Prospectus and the Prospectus other than any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with the Company Information; provided, however, with respect to
the Preliminary Prospectus, such indemnification does not include the
omission of pricing and price-dependant information, which information
shall of necessity appear only in the final Prospectus.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Participating Entities and the Company, each director
and officer of the Participating Entities and the Company and each person
who controls any Participating Entity or the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Participating Entities and the Company
to each Underwriter, but only with reference to Underwriter Information
delivered by such Underwriter.
(d) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and the Participating Entities against any
losses, claims, damages or liabilities to which the Company or the
Participating Entities may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Underwriter Free Writing Prospectus, 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, and will reimburse any legal or other expenses reasonably
incurred by the Company or the Participating Entities in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that no Underwriter will be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement in any Underwriter Free Writing Prospectus in reliance upon and
in conformity with (i) any written information furnished to the related
Underwriter by the Company or the Participating Entities expressly for use
therein or (ii) the Preliminary Prospectus or Prospectus, which information
was not corrected by information
19
subsequently provided by the Company or the Participating Entities to the
related Underwriter prior to the time of use of such Underwriter Free
Writing Prospectus. This indemnity agreement will be in addition to any
liability that each Underwriter may otherwise have.
(e) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
any of the three preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing (if legally permissible),
and the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding;
provided that the failure of the Indemnified Person to give notice shall
not relieve the Indemnifying Person of its obligations under this Section 9
except to the extent (if any) that the Indemnifying Person shall have been
prejudiced thereby. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred
promptly following submission of a documented request for such
reimbursement. Any such separate firm for the Underwriters and such control
persons of the Underwriters shall be designated in writing by the
Representative, any such separate firm for the Participating Entities,
their directors, officers and control persons shall be designated in
writing by the Sponsor and any such separate firm for the Company, its
directors, officers and control persons shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement
of any claim or proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have made two requests of an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying
Person agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the second
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such requests prior to
the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the
20
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(f) If the indemnification provided for in the first, second, third
and fourth paragraphs of this Section 9 is determined by a court to be
unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person
under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnified Person on the one hand and
the Indemnifying Person on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Indemnified Person on the one hand and the
Indemnifying Person on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Participating Entities on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses) received by
the Participating Entities and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public
offering price of the Securities, the relative benefits received by the
Participating Entities on the one hand and the Company on the other shall
be deemed to be in the same respective proportions as the net proceeds from
the offering (before deducting expenses) received by the Participating
Entities and the [transaction fee] received by the Company bear to the
aggregate public offering price of the Securities, and the relative
benefits received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as the
[transaction fee] received by the Company and the total underwriting
discounts and the commissions received by the Underwriters bear to the
aggregate public offering price of the Securities. The relative fault of
the Indemnified Person on the one hand and the Indemnifying Person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Participating Entities, the Company or by any of the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(g) The Participating Entities, the Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses
21
incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 9, in no event shall (i) an Underwriter be required to contribute
any amount in excess of the amount by which the total underwriting
discounts and commissions received by it in connection with the offering of
the [Securities] [Notes] exceeds the amount of any damages that such
Underwriter has other wise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission or (ii) the
Company be required to contribute any amount in excess of the amount by
which the [transaction fee] received by the Company exceeds the amount of
any damages that the Company has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute -pursuant to this Section 9 are several in
proportion to the respective aggregate principal amount of Securities set
forth opposite their names in Schedule I hereto, and not joint.
(h) The indemnity and contribution agreements contained in this
Section 9 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
(i) The indemnity and contribution agreements contained in this
Section 9 and the representations, warranties and covenants of the
Participating Entities and the Company set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of any Participating Entity or the Company or any of their officers
or directors or any other person controlling any Participating Entity or
the Company and (iii) acceptance of and payment for any of the Securities.
10. (a) Other than the Preliminary Prospectus and the Prospectus, each
Underwriter severally represents, warrants and agrees with the Company and the
Participating Entities that it has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or
refer to any "written communication" (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the [Securities]
[Notes], including, but not limited to any "ABS informational and computational
materials" as defined in Item 1101(a) of Regulation AB under the Act unless such
Underwriter has obtained the prior written approval of the Company and the
Participating Entities; provided, however, each Underwriter may prepare and
convey to one or more of its potential investors one or more "written
communications" (as defined in Rule 405 under the Act) containing no more than
the following: information relating to the class, original principal balance,
closing date, weighted average maturity/life, rating, final scheduled payment
date, and/or the final price or weighted average coupon of the [Securities]
[Notes], as well as a column or other entry showing the status of the
subscriptions for the [Securities] [Notes] and/or expected pricing parameters of
the [Securities] [Notes] (each such written communication, an "Underwriter Free
Writing Prospectus").
(b) Each Underwriter severally represents, warrants and agrees with
the Company and the Participating Entities that:
22
(i) each Underwriter Free Writing Prospectus prepared by it will
not, as of the date such Underwriter Free Writing Prospectus was conveyed
or delivered to any prospective purchaser of [Securities] [Notes], include
any untrue statement of a material fact or omit any material fact necessary
to make the statements contained therein, in light of the circumstances
under which they were made, not misleading; provided, however, that no
Underwriter makes such representation, warranty or agreement to the extent
such misstatements or omissions were the result of any inaccurate
information which was included in the Preliminary Prospectus, the
Prospectus or any written information furnished to the related Underwriter
by the Company or the Participating Entities expressly for use therein,
which information was not corrected by information subsequently provided by
the Company, or the Participating Entities to the related Underwriter prior
to the time of use of such Underwriter Free Writing Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it
shall contain a legend substantially in the form of and in compliance with
Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any
requirements for "free writing prospectuses" under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it
shall be delivered to the Company and the Participating Entities no later
than the time of first use and, unless otherwise agreed to by the Company,
the Participating Entities and the related Underwriter, such delivery shall
occur no later than the close of business for the Company (Eastern Time) on
the date of first use; provided, however, if the date of first use is not a
Business Day, such delivery shall occur no later than the close of business
for the Company (Eastern Time) on the first Business Day preceding such
date of first use.
(c) Each Underwriter severally represents and agrees (i) that it did
not enter into any contract of sale for any [Securities] [Notes] prior to
the Time of Sale and (ii) that it will, at any time that such Underwriter
is acting as an "underwriter" (as defined in Section 2(a)(11) of the Act)
with respect to the [Securities] [Notes], deliver to each investor to whom
[Securities] [Notes] are sold by it during the period prior to the filing
of the final Prospectus (as notified to the Underwriters by the Company),
at or prior to the applicable time of any such contract of sale with
respect to such investor, the Preliminary Prospectus.
11. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Participating Entities and the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the New York
Stock Exchange or the American Stock Exchange, or there shall have been any
setting of minimum prices for trading on either such exchange; (ii) trading of
any securities of or guaranteed by any Participating Entity shall have been
suspended or halted on any exchange or in any over-the-counter market; (iii) a
moratorium on commercial banking activities in New York or __________ shall have
been declared by either federal, New York or __________ authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States has occurred; (iv) there shall have occurred any
outbreak or escalation of hostilities, declaration of national emergency or war
or any change in financial
23
markets or any calamity or crisis or any change in the financial, political or
economic conditions in the United States or elsewhere which, in the judgment of
the Representative, makes it impracticable or inadvisable to market the
[Securities] [Notes] on the terms and in the manner contemplated in the
Preliminary Prospectus and the Prospectus or enforce contracts for the sale of
the [Securities] [Notes]; (v) if the rating assigned by any nationally
recognized securities rating agency (to which any Participating Entity has
applied for such rating) to any debt securities of or guaranteed by any
Participating Entity as of the date hereof shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of or guaranteed by any Participating Entity; (vi) any
change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
any Participating Entity which, in the judgment of the Representative is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
[Securities] [Notes] or (vii) if there shall have come to the Representative's
attention any facts that would cause the Representative to reasonably determine
in good faith that the Preliminary Prospectus and the Prospectus, at the time it
was required to be delivered to a purchaser of [Securities] [Notes], contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading.
12. If on the Closing Date (i) any Underwriter shall fail or refuse to
purchase any [Securities] [Notes] which it has agreed to purchase hereunder on
such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, and (iii) the aggregate
principal amount of [Securities] [Notes] which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the [Securities] [Notes] to be purchased by the
Underwriters on such date, the other Underwriters shall be obligated to purchase
[Securities] [Notes] which such defaulting Underwriter agreed but failed or
refused to purchase on such date. If on the Closing Date (i) any Underwriter
shall fail or refuse to purchase [Securities] [Notes] which it has agreed to
purchase hereunder on such date, (ii) such failure or refusal shall constitute a
default in the performance of such Underwriter's obligations hereunder, (iii)
the aggregate principal amount of [Securities] [Notes] with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
[Securities] [Notes] to be purchased by the Underwriters on such date, and (iv)
arrangements satisfactory to the non-defaulting Underwriters and the Company for
the purchase of such [Securities] [Notes] are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or any Participating Entity. In any
such case either the Representative, any Participating Entity or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven Business Days, in order that the required changes, if any, in the
Registration Statement, the Prospectus and the Preliminary Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
13. If this Agreement shall be terminated by the Underwriters, or any one
of them, because of any failure or refusal on the part of any Participating
Entity to comply with the terms
24
or to fulfill any of the conditions of this Agreement, or if for any reason any
Participating Entity shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
in each case, other than in connection with any default by the Underwriters
under the preceding Section 11, the Participating Entities agree to reimburse
the Underwriters, severally, or such Underwriter which has so terminated this
Agreement with respect to itself, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Underwriter(s)
in connection with this Agreement or the offering contemplated thereunder.
14. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative alone shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed, delivered by hand or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representative, c/o Banc of America Securities LLC, Bank of America Corporate
Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxx Xxxxxxxx 00000 [(704) ___-____],
(Facsimile No: (___) ___-____), Attention: ____________________. Notices to the
Participating Entities shall be given to them at __________,
____________________ (Facsimile No.: (___) ___-____), Attention: ______________.
Notices to the Company shall be given to it at __________, ____________________
(Facsimile No.: (___) ___-____), Attention: ____________________.
15. This Agreement shall inure to the benefit of and be binding upon the
Participating Entities, the Company, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of [Securities] [Notes] from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
16. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
17. The Company acknowledges and agrees that: (i) the purchase and sale of
the [Securities] [Notes] pursuant to this Agreement, including the determination
of the public offering price of the [Securities] [Notes] and any related
discounts and commissions, is an arm's-length commercial transaction between the
Company, on the one hand, and the Underwriters on the other hand, and the
Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this
Agreement; (ii) in connection with each transaction contemplated hereby and the
process leading to such transaction the Underwriters are and have been acting
solely as a principal and is not the agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) the
Underwriters have not assumed, nor will they assume, an advisory or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether the
Underwriters have advised or
25
are currently advising the Company on other matters) or any other obligation to
the Company except the obligations expressly set forth in this Agreement; (iv)
the Underwriters and their affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
that the Underwriters have no obligation to disclose any of such interests by
virtue of any fiduciary or advisory relationship; and (v) the Underwriters have
not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriters with respect to the
subject matter hereof. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any breach or alleged breach of fiduciary duty.
18. The respective agreements, representations, warranties, indemnities and
other statements of the Company and the Participating Entities or their
respective officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or the Participating
Entities or any of the officers, directors or controlling persons referred to in
Section 9 hereof, and will survive delivery of and payment for the [Securities]
[Notes]. The provisions of this Section 16 and Sections 7, 9 and 12 hereof shall
survive the termination or cancellation of this Agreement.
19. Time shall be of the essence of this Agreement. This Agreement
supersedes all prior of contemporaneous agreements and understandings related to
the subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharge or terminated except by a writing signed by the party
against whom enforcement of such change, waiver.
20. The Underwriters hereby agree not to cause or participate in the filing
of a petition in bankruptcy against the Company for the non-payment to the
Underwriters of any amounts provided by this Agreement or otherwise until one
year and one day after the payment in full of all amounts due on the
[Securities] [Notes] in accordance with the terms of the Basic Documents.
[SIGNATURE PAGES FOLLOW]
26
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Participating Entities, the Company and the
Underwriters in accordance with its terms.
Very truly yours,
BAS SECURITIZATION LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
As Representative
of the Underwriters
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
S-3
SCHEDULE I
Initial Initial Initial
Principal Principal Principal
Amount of Class Amount of Class Amount of Class
A-1 Asset Backed A-2 Asset Backed A-3 Asset Backed
Notes Notes Notes
---------------- ---------------- ----------------
$__________ $__________ $__________
$__________ $__________ $__________
Total $__________ $__________ $__________
Purchase Price $__________ $__________ $__________
I-1
EXHIBIT A
TERMS AGREEMENT
A-1
