Exhibit 1.2
$[ ]
(Approximate)
WHOLE AUTO LOAN TRUST [ ]
ASSET BACKED CERTIFICATES
FORM OF UNDERWRITING AGREEMENT
(Grantor Trust)
Date [ ]
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bear Xxxxxxx Asset Backed Funding II Inc. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Whole Auto Loan Trust [ ]
Asset Backed Certificates, in the classes, in the respective original principal
amounts and with the designations set forth in Schedule A hereto (the
"Underwritten Securities"), issued by Whole Auto Loan Trust [ ] (the "Trust").
Bear, Xxxxxxx & Co. Inc. (the "Underwriter") pursuant to this underwriting
agreement (this "Agreement") is purchasing the Underwritten Securities at the
prices set forth on Schedule A hereto, and upon the terms and conditions
contained herein. The Trust's Assets will include, among other things, a pool of
motor vehicle installment sales contracts secured by new and used automobiles
and light-duty trucks (the "Receivables"), certain monies due or received
thereunder on or after [ ] (the "Cutoff Date"), security interests in the
vehicles financed thereby, certain accounts, and the proceeds thereof, and the
proceeds from claims on certain insurance policies.
The Receivables will be sold to the Depositor by [ ], as seller (in such
capacity, the "Seller"), pursuant to a Sale and Servicing Agreement (the "Sale
and Servicing Agreement") to be dated as of the Cutoff Date, between the
Depositor and [ ], as seller and as servicer (in such capacity, the "Servicer").
The Servicer will service the Receivables pursuant to the Sale and Servicing
Agreement. The Receivables will be sold to the Trust by the Depositor pursuant
to a Receivables Purchase Agreement (the "Receivables Purchase Agreement") to be
dated as of the Cutoff Date, between the Depositor and the Trust.
The Underwritten Securities will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as of
the Cutoff Date, among the Depositor, [ ], as servicer and custodian (the
"Servicer"), and [ ], as trustee (the "Trustee"). [Simultaneously with the
issuance of the Underwritten Securities, the Trust will issue its Class [ ]
Certificates (collectively, the "Privately Offered Securities" and together with
the Underwritten Securities, the "Securities")].
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement. This
Agreement, the Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Sale and Servicing Agreement are referred to herein
collectively as the "Operative Agreements."
SECTION 1. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriter that:
(a) A Registration Statement on Form S-3 (No. 333-107577) has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act.
Copies of such Registration Statement have been delivered by the Depositor to
the Underwriter. As used in this Agreement, "Effective Time" means the date and
the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time, including
any documents incorporated by reference therein at such time; and "Prospectus"
means the final prospectus dated [ ], as supplemented by the final Prospectus
Supplement dated [ ], (the "Prospectus Supplement") relating to the Underwritten
Securities, to be filed with the Commission pursuant to paragraphs (2), (3) or
(5) of Rule 424(b) of the Rules and Regulations. Reference made herein to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of
the date of the Prospectus and any reference to any amendment or supplement to
the Prospectus shall be deemed to refer to and include any document filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of such Prospectus, as the case may be, and incorporated by reference in
such Prospectus, as the case may be, as of the date of such amendment or
supplement and any reference to any amendment to the Registration Statement
shall be deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Time
that is incorporated by reference in the Registration Statement as of the date
of such amendment. The Commission has not issued any order preventing or
suspending the use of the Prospectus. There are no contracts or documents of the
Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which have
not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been satisfied.
2
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and the rules and regulations of the
Commission thereunder. The Registration Statement, as of the Effective Date
thereof and of any amendment thereto, did 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. The Prospectus as of
its date, and as amended or supplemented, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that no representation or warranty is
made as to information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with written information
furnished to the Depositor in writing by any Underwriter expressly for use
therein. The only information furnished by the Underwriter or on behalf of the
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(h) hereof.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the Rules and 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; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, 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; provided, however, that no
representation is made as to Computational Materials, Structural Term Sheets and
Collateral Term Sheets (each as defined herein) deemed to be incorporated by
reference in the Prospectus as the result of filing an Additional Materials 8-K
(as defined below) pursuant to the terms hereof except to the extent such
Computational Materials, Structural Term Sheets and Collateral Term Sheets
reflect information furnished by the Depositor to the Underwriter.
(d) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor.
(e) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing 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, and has all power and authority
necessary to own or hold its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under the Operative
Agreements to which it is a party and to cause the Securities to be issued.
3
(f) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before, or
threatened by, any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a) which
if determined adversely to the Depositor would have a material adverse effect on
the business or financial condition of the Depositor, (b) which assert the
invalidity of any of the Operative Agreements to which it is a party or the
Securities, (c) which seek to prevent the issuance of the Securities or the
consummation by the Depositor of any of the transactions contemplated by any of
the Operative Agreements to which it is a party or (d) which might materially
and adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of any of the Operative Agreements to which it
is a party or the Securities.
(g) This Agreement has been, and each other Operative Agreement to
which the Depositor is a party, when executed and delivered as contemplated
hereby and thereby, will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and each other Operative
Agreement when executed and delivered as contemplated hereby and thereby, will
constitute, legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally, (y)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement or any other Operative Agreement, limitations of public
policy under applicable securities laws.
(h) The execution, delivery and performance of the Operative
Agreements to which it is a party by the Depositor and the consummation of the
transactions contemplated hereby and thereby, and the issuance and delivery of
the Securities do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the Depositor is bound or
to which any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the Depositor, nor
will such actions result in any violation of the provisions of the Certificate
of Incorporation or By-Laws of the Depositor or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Depositor or any of its properties or assets, which breach or violation
would have a material adverse effect on the business, operations or financial
condition of the Depositor.
(i) The Depositor has no reason to believe that [ ] is not an
independent public accountant with respect to the Depositor as required by the
Securities Act and the Rules and Regulations.
(j) When duly and validly executed and authenticated by the Trustee
and delivered in accordance with the Pooling and Servicing Agreement and paid
for pursuant to this Agreement, the Underwritten Securities will be validly
issued and outstanding and entitled to the benefits and security afforded by the
Pooling and Servicing Agreement.
4
(k) 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 of the Securities and the sale of the
Underwritten Securities to the Underwriter, or the consummation by the Depositor
of the other transactions contemplated by the Operative Agreements, except such
consents, approvals, authorizations, registrations or qualifications as may be
required under securities laws in connection with the purchase and distribution
of the Underwritten Securities by the Underwriter or as have been obtained.
(l) The Depositor 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 Prospectus, and the Depositor has not received notice
of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to the
Depositor would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
(m) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) be the sole beneficial owner of the
Receivables conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any Person any of its right
or title in the Receivables, in the Receivables Purchase Agreement or in the
Underwritten Securities; and (iii) have the power and authority to sell its
interest in the Receivables to the Trust and to sell the Underwritten Securities
to the Underwriter. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trust will have acquired beneficial ownership of
all of the Depositor's right, title and interest in and to the Receivables. Upon
delivery to the Underwriter of the Underwritten Securities in accordance with
this Agreement, the Underwriter will have good title to the Underwritten
Securities, free and clear of any Liens.
(n) As of the Cutoff Date, each of the Receivables will meet the
eligibility criteria described in the Prospectus and will conform in all
material respects to the descriptions thereof contained in the Prospectus.
(o) Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "1940 Act") and the
Rules and Regulations of the Commission thereunder.
(p) At the Closing Date, the Underwritten Securities and the Operative
Agreements will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(q) At the Closing Date (i) the Class A Certificates will have been
rated "[ ]" by at least two nationally recognized rating agencies[;] [and] (ii)
the Class B Certificates will have been rated "[ ]" by at least two nationally
recognized rating agencies [and (iii) the Class C Certificates will have been
rated at least "[ ]" (or its equivalent) by at least two nationally recognized
rating agencies].
5
(r) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Operative Agreements and the
Securities have been paid or will be paid at or prior to the Closing Date.
(s) At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Operative Agreements will be true and correct in
all material respects.
Any certificate signed by an officer of the Depositor and delivered to the
Underwriter or counsel for the Underwriter in connection with an offering of the
Underwritten Securities shall be deemed to be a representation and warranty as
to the matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriter to purchase
the Underwritten Securities pursuant to this Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth. The Depositor
agrees to cause the Trustee to issue the Underwritten Securities and agrees to
sell to the Underwriter, and the Underwriter agrees (except as provided in
Section 11) to purchase from the Depositor, the aggregate principal balance of
the Underwritten Securities set forth in Schedule A for the aggregate purchase
price of $[ ].
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities to be purchased by the Underwriter shall be made at the
offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 787 Seventh Avenue, New York, New
York, or at such other place as shall be agreed upon by the Underwriter and the
Depositor at 10:00 a.m. New York time on [ ] or at such other time or date as
shall be agreed upon in writing by the Underwriter and the Depositor (such date
being referred to as the "Closing Date"). Payment shall be made to the Depositor
by wire transfer of same day funds payable to the account of the Depositor.
Delivery of the Underwritten Securities shall be made to the Underwriter for the
account of the Underwriter against payment of the purchase price thereof. The
Underwritten Securities shall be in such authorized denominations and registered
in such names as the Underwriter may request in writing at least two business
days prior to the Closing Date. The Underwritten Securities will be made
available for examination by the Underwriter no later than 2:00 p.m. New York
City time on the first business day prior to the Closing Date.
SECTION 4. Offering by the Underwriter. It is understood that, subject to
the terms and conditions hereof, the Underwriter proposes to offer the
Underwritten Securities for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor covenants and agrees
as follows:
(a) To prepare (by no later than the second business day immediately
preceding the Closing Date) the Prospectus in a form approved by the Underwriter
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriter and to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus prior to the Closing Date except as permitted herein;
6
to advise the Underwriter, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective prior to the Closing Date or any supplement to the Prospectus or any
amended Prospectus has been filed prior to the Closing Date and to furnish the
Underwriter with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Depositor with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and, for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Underwritten Securities to advise the Underwriter promptly of its receipt of
notice of the issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; and (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed with
the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) the Prospectus
and any amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the offering or sale of
the Underwritten Securities, and if at such time any events shall have occurred
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 in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, the Depositor shall notify the
Underwriter and, upon the Underwriter's request, shall file such document and
prepare and furnish without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
corrects such statement or omission or effects such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriter, be required by
the Securities Act or requested by the Commission.
(e) The Depositor will (i) cause any Computational Materials or any
Structural Term Sheet (each as defined below in this subsection) with respect to
the Underwritten
7
Securities which are delivered by the Underwriter to the Depositor to be filed
with the Commission on an Additional Materials 8-K (as defined below) (A) at or
before the time of filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act in the case of Computational Materials or any Structural Term
Sheet provided to investors prior to the availability of such Prospectus, and
(B) within two business days of first use in the case of Computational Materials
or any Structural Term Sheet provided to investors subsequent to the
availability of, but before the sending or giving of, such Prospectus and (ii)
cause any Collateral Term Sheet (as defined below in this subsection) with
respect to the Underwritten Securities which are delivered by any Underwriter to
the Depositor to be filed with the Commission on an Additional Materials 8-K
within two business days after the date on which such Underwriter advises the
Depositor that such Collateral Term Sheet was first used; provided, however,
that the Depositor shall have no obligation to file any materials which, in the
reasonable determination of the Depositor after consultation with the
Underwriter, (x) are not required to be filed pursuant to the Xxxxxx Letters
and/or the PSA Letter (each as defined below) or (y) contain any erroneous
information or 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; it being understood, however, that the Depositor shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials, Structural Term Sheets or Collateral Term Sheets
provided by the Underwriter to the Depositor as aforesaid. For purposes of this
subsection (e), (1) the term "Computational Materials" shall mean those
materials which constitute "computational materials" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and
certain affiliates 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") and the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance to the Public
Securities Association (the "PSA Letter") for which the filing of such material
on an Additional Materials 8-K is a condition of the relief granted in such
letters; (2) the terms "Structural Term Sheet" and "Collateral Term Sheet" shall
mean those materials which constitute "structural term sheets" and "collateral
term sheets" within the meaning of the PSA Letter for which the filing of such
material on an Additional Materials 8-K is a condition of the relief granted in
such letter; and (3) the term "Additional Materials 8-K" shall mean a Current
Report on Form 8-K used to file Computational Materials, Structural Term Sheets
and/or Collateral Term Sheets. The Underwriter agrees that the only
Computational Materials, Structural Term Sheets and Collateral Term Sheets that
it will use are those delivered by it to the Depositor for filing in an
Additional Materials 8-K.
(f) To furnish the Underwriter and counsel for the Underwriter, prior
to filing with the Commission, and to obtain the consent of the Underwriter for
the filing of the following documents relating to the Securities: any (i)
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) Prospectus
pursuant to Rule 424 of the Rules and Regulations.
(g) To make generally available to holders of the Underwritten
Securities as soon as practicable, but in any event not later than 90 days after
the close of the period covered thereby, a statement of earnings of the Trust
(which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the
8
Depositor, Rule 158) and covering a period of at least twelve (12) consecutive
months beginning not later than the first day of the first fiscal quarter
following the Closing Date.
(h) To use its best efforts, in cooperation with the Underwriter, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriter may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of the Underwritten Securities; provided, however, that in
connection therewith, the Depositor shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction. The Depositor will file or cause the filing of such statements and
reports as may be required by the laws of each jurisdiction in which the
Underwritten Securities have been so qualified.
(i) During the period from the date of the Prospectus to and including
the business day after the Closing Date, to not offer for sale, sell, contract
to sell or otherwise dispose of, directly or indirectly, or file a registration
statement for, or announce any offering of, any securities collateralized by, or
evidencing an ownership interest in, a pool of motor vehicle installment sales
contracts or installment loans secured by new and used automobiles and
light-duty trucks without the prior written consent of the Underwriter.
(j) For a period from the date of this Agreement until the retirement
of the Securities, to deliver to the Underwriter the annual statement of
compliance and the annual independent certified public accountants' report
furnished to the Trustee, pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(k) To apply the net proceeds from the sale of the Underwritten
Securities in the manner set forth in the Prospectus Supplement.
SECTION 6. Conditions to the Underwriter's Obligations. The obligation of
the Underwriter to purchase the Underwritten Securities pursuant to this
Agreement is subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained;
(ii) the performance by the Depositor of all of its obligations hereunder; and
(iii) the following conditions as of the Closing Date:
(a) The Underwriter shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
(b) The Underwriter shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact or omits to state a fact which, in the opinion of the Underwriter and
its counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
9
(c) All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Operative Agreements, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to the Underwriter and its counsel, and the
Depositor shall have furnished the Underwriter and its counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) The Pooling and Servicing shall have been duly executed and
delivered by the Depositor and the Trustee and the Securities shall have been
duly executed, delivered and authenticated by the Trustee on behalf of the
Trust.
(e) The Sale and Servicing Agreement shall have been duly executed and
delivered by the Depositor, the Servicer and the Seller.
(f) [[_____________], counsel to the Depositor, shall have furnished
to the Underwriter [his/her] written opinion, as counsel to the Depositor and
the Servicer, addressed to the Underwriter and dated the Closing Date, in form
and substance satisfactory to the Underwriter and its counsel, to the effect
that:
(i) Each of the Depositor and the Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Operative Agreements to which it is a party and the transactions
contemplated thereby.
(ii) Neither the Depositor nor the Servicer is in violation of its
Certificate of Incorporation or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or its properties
may be bound, which default might result in any material adverse change in
the financial condition, earnings, affairs or business of the Depositor or
the Servicer, as applicable, or which might materially and adversely affect
the ability of the Depositor or the Servicer, as applicable to perform its
obligations under any of the Operative Agreements to which it is a party.
(iii) Each of the Operative Agreements to which the Depositor or the
Servicer is a party has been duly authorized, executed and delivered by the
Depositor or the Servicer, as applicable.
(iv) The execution, delivery and performance by the Depositor or the
Servicer of the Operative Agreements to which it is a party and the
consummation of the transactions contemplated hereby and thereby, do not
and will not conflict with or result in a breach or violation of any of the
terms of provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor or the Servicer, as applicable, is a party or by which
the Depositor or the Servicer, as applicable, is bound or to which any of
the property or assets of the Depositor or the Servicer, as applicable, is
subject, which breach or violation would have
10
a material adverse effect on the business, operations or financial
condition of the Depositor or the Servicer, as applicable, nor will such
actions result in a violation of the provisions of the Certificate of
Incorporation or By-laws of the Depositor or the Servicer, as applicable,
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor or the
Servicer, as applicable, or any of its properties or assets, which breach
or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or the Servicer, as
applicable.
(v) To [his/her] knowledge, there are no actions, proceedings or
investigations pending before or threatened by any court, administrative
agency, or other tribunal to which the Depositor or the Servicer is a party
or of which any of its properties is the subject: (a) which if determined
adversely to the Depositor or the Servicer, as applicable, would have a
material adverse effect on the business, results of operations or financial
condition of the Depositor or the Servicer, as applicable; (b) asserting
the invalidity of any of the Operative Agreements to which it is a party;
(c) seeking to prevent the consummation by the Depositor or the Servicer,
as applicable, of any of the transactions contemplated by any of the
Operative Agreements to which it is a party; or (d) which might materially
and adversely affect the performance by the Depositor or the Servicer, as
applicable, of its obligations under, or the validity or enforceability of
any of the Operative Agreements to which it is a party.
(g) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Underwriter their written opinion, as special counsel to the Depositor,
addressed to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The Registration Statement has become effective under the
Securities Act; to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened and not
terminated; and the Registration Statement and the Prospectus, as of their
respective effective or issue dates (in each case other than the documents
incorporated therein by reference (including, without limitation, the
"Computational Materials", "Structural Term Sheets" and "Collateral Term
Sheets" filed by the Depositor with the Commission on Form 8-K) and the
financial and statistical information contained therein, as to which such
counsel expresses no opinion, complied as to form in all material respects
with the applicable requirements of the Act and the rules and regulations
thereunder;
(ii) The Underwritten Securities, the Pooling and Servicing Agreement,
the Sale and Servicing Agreement and the Receivables Purchase Agreement
conform in all material respects to the descriptions thereof contained in
the Prospectus;
(iii) Assuming that the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes a
valid, legal and binding agreement of the Depositor and the Servicer,
enforceable against the Depositor and the Servicer in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights
11
generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law;
(iv) [Assuming that the Sale and Servicing Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes a
valid, legal and binding agreement of the Depositor, enforceable against
the Depositor in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law;]
(v) Assuming that the Receivables Purchase Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes a
valid, legal and binding agreement of the Depositor, enforceable against
the Depositor in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law and with respect to rights of indemnity under the Receivables Purchase
Agreement, limitations of public policy under applicable laws;
(vi) Assuming that this Agreement has been duly authorized, executed
and delivered by the parties hereto, it constitutes a valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance
with its terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law, and with respect
to rights of indemnity and contribution hereunder, limitations of public
policy under applicable laws;
(vii) Assuming that the Securities have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement, when delivered and paid for, the
Securities will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement;
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not required to be
registered under the 1940 Act.
Such counsel shall have endeavored to see that the Registration Statement
and the Prospectus comply with the Securities Act and the rules and regulations
of the Commission thereunder relating to registration statements on Form S-3 and
related prospectuses, but such counsel cannot, of course, make any
representation to you as to the accuracy or completeness of statements of fact
contained therein. Nothing, however, shall have come to such counsel's attention
that has caused such counsel to believe that the Registration Statement, at the
time it became effective, 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 or that the Prospectus, as of the
date of the Prospectus Supplement or at the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact
12
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading other than (i) the
information incorporated therein by reference (including, without limitation,
any Computational Materials, Structural Term Sheets and Collateral Term Sheets),
and (ii) the financial, statistical and numerical information contained therein,
as to which in each case such counsel need make no statement.
(h) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Underwriter their written opinion, addressed to the Underwriter and dated the
Closing Date, with respect to certain matters relating to the creation of a
security interest in the Receivables in favor of the Trust, in form and
substance reasonably satisfactory to the Underwriter and its counsel.
(i) Sidley Xxxxxx Xxxxx & Xxxx LLP shall have furnished to the
Underwriter their written opinion, addressed to the Underwriter and dated the
Closing Date, with respect to certain tax matters relating to the issuance of
the Securities, in form and substance reasonably satisfactory to the Underwriter
and its counsel.
(j) The Underwriter shall have received from Sidley Xxxxxx Xxxxx &
Xxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriter may require, and
the Depositor shall have furnished to such counsel such documents as they
reasonably request for enabling them to pass upon such matters.
(k) [____________], counsel to the Trustee, shall have furnished to
the Underwriter their written opinion, as counsel to the Trustee, addressed to
the Underwriter and dated the Closing Date, regarding the due organization of
the Trustee, the due authorization, execution and delivery by the Trustee of the
Pooling and Servicing Agreement, no conflicts or violations of organizational
documents, contracts or law and other related matters, in form and substance
reasonably satisfactory to the Underwriter and its counsel.
(l) The Underwriter shall have received a certificate, dated the
Closing Date, of any of the Chairman of the Board, the President, any Senior
Vice President or the chief financial officer of the Depositor stating that (A)
the representations and warranties of the Depositor contained in this Agreement
and the other Operative Agreements to which it is a party are true and correct
on and as of the Closing Date, (B) the Depositor has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the Closing Date, (C) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of his
or her knowledge, are contemplated by the Commission, and (D) since [______],
there has been no material adverse change in the financial position or results
of operations of the Depositor or the Trust or any change, or any development
including a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Depositor or the
Trust except as set forth in or contemplated by the Registration Statement and
the Prospectus.
(m) [The Seller shall have furnished to the Underwriter (1) a
certificate, dated the Closing Date and signed by the Chairman of the Board, the
President or a Vice President of the Seller, stating:
13
(i) The representations and warranties made by the Seller in each of
the Operative Agreements to which the Seller is a party are true and
correct as of the Closing Date.
(ii) There has been no amendment or other document filed affecting the
Certificate of Incorporation or By-Laws of the Seller since [ ] and no such
amendment has been authorized.
(iii) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Seller.
(iv) The Seller 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 Prospectus Supplement, and the
Seller has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority or
permit which if decided adversely to the Seller would, singly or in the
aggregate, materially and adversely affect the conduct of its business,
operations or financial condition.
(v) At the time of execution and delivery of the Receivables Purchase
Agreement, the Seller will: (i) be the sole beneficial owner of the
Receivables conveyed by the Seller to the Depositor, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"); (ii) not have assigned to any
Person any of its right or title in the Receivables; and (iii) have the
power and authority to sell its interest in the Receivables to the
Depositor.]
(n) The Trustee shall have furnished to the Underwriter a certificate
of the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
each of the Operative Agreements to which the Trust is a party and the
acceptance by the Trustee of the trusts created thereby and the due execution
and delivery of the Securities by the Trustee thereunder and such other matters
as the Underwriter shall reasonably request.
(o) At the Closing Date (i) the Class A Certificates will have been
rated "[ ]" by at least two nationally recognized rating agencies[;] [and] (ii)
the Class B Certificates will have been rated "[ ]" by at least two nationally
recognized rating agencies [and (iii) the Class C Certificates will have been
rated at least "[ ]" (or its equivalent) by at least two nationally recognized
rating agencies].
(p) The Depositor shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested not less than three full business days prior to the Closing Date.
(q) Prior to the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of
14
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the Depositor in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
(r) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by federal or state
authorities; (iii) the United States shall have become engaged in hostilities,
there shall have been any attack on, outbreak or escalation of hostilities or
acts of terrorism involving the United States or there shall have been a
declaration of a national emergency or war by the United States; or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets of the United States shall be such) as to make it in any
of the instances set forth in clauses (i), (ii), (iii) and (iv) herein, in the
judgment of the Underwriter, impractical or inadvisable to proceed with the
public offering or delivery of the Underwritten Securities on the terms and in
the manner contemplated in the Prospectus.
(s) The Underwriter shall have received from [ ], letters, dated the
date hereof and satisfactory in form and substance to the Underwriter and its
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Prospectus Supplement agrees with the records of the
Depositor excluding any questions of legal interpretation.
(t) The Underwriter shall have received from [ ], certified public
accountants, a letter dated [ ] and satisfactory in form and substance to the
Underwriter and its counsel, to the effect that they have performed certain
specified procedures and recomputations as a result of which they have confirmed
the numerical information set forth in the Computational Materials, Structural
Term Sheets and Collateral Term Sheets.
(u) The Underwriter shall have received from [ ] a letter, dated the
Closing Date and satisfactory in form and substance to the Underwriter, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by the Underwriter, as a result of which they determined that
certain information of an accounting, financial or statistical nature set forth
in the Prospectus Supplement agrees with the records of [ ] excluding any
questions or legal interpretation.
(v) the Underwriter shall have received from counsel to The Bear
Xxxxxxx Companies Inc., such opinion or opinions, addressed to the Underwriter
and dated the Closing Date, with respect to certain matters relating to the
guaranty executed by The Bear Xxxxxxx Companies Inc., in form and substance
reasonably satisfactory to the Underwriter and its counsel.
15
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Depositor 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 Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
SECTION 7. Payment of Expenses. As between the Depositor and the
Underwriter, the Depositor agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including without
limitation those relating to: (a) the costs incident to the authorization,
issuance, sale and delivery of the Securities and any taxes payable in
connection therewith; (b) a portion of the fees previously paid to the
Commission with respect to the filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus
(including the Prospectus Supplement) or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of reproducing and
distributing this Agreement; (e) the fees and expenses of qualifying the
Underwritten Securities under the securities laws of the several jurisdictions
as provided in Section 5(h), if necessary, hereof and of preparing, printing and
distributing a Blue Sky Memorandum and a Legal Investment Survey, if any
(including related fees and expenses of counsel to the Underwriter); (f) any
fees charged by securities rating services for rating the Securities; and (g)
all other costs and expenses incident to the performance of the obligations of
the Depositor (including costs and expenses of the Depositor's counsel).
If this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 6 or Section 11, the Depositor shall cause the Underwriter
to be reimbursed for all reasonable out-of-pocket expenses, including fees and
disbursements of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriter.
SECTION 8. Indemnification and Contribution. (a) The Depositor agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Underwritten Securities), to which the
Underwriter or any such controlling person may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state in the Registration Statement or any
amendment thereof or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission
or alleged omission to state in the Prospectus or any amendment thereof or
supplement thereto a material
16
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and shall reimburse the Underwriter and each such controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Prospectus, or any amendment thereof or supplement thereto, or the
Registration Statement, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Depositor by or on behalf of the Underwriter specifically for inclusion therein,
it being understood that the only information furnished by or on behalf of the
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(h) hereof; provided
further that the Depositor shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
on information in any Computational Materials, Structural Term Sheets or
Collateral Term Sheets prepared by the Underwriter and (i) such information was
created by such Underwriter and (ii) either all Depositor-Provided Information
(as defined in Section 8(g)) is accurate and complete in all material respects,
or, if such Depositor-Provided Information was not accurate and complete in all
material respects, the Depositor furnished to the Underwriter prior to the
Closing Date information that rendered such Depositor-Provided Information
accurate and complete in all material respects. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to the Underwriter or any controlling person of the Underwriter.
(b) The Underwriter agrees to indemnify and hold harmless the
Depositor, each of its directors, each of the officers of the Depositor who
signed the Registration Statement, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, claim, damage or liability, or any
action in respect thereof, to which the Depositor or any such director, officer
or controlling person may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereof or supplement thereto, (ii) the omission or alleged omission
to state in the Registration Statement or any amendment thereof or supplement
thereto a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, or any amendment
thereof or supplement thereto, or (iv) the omission or alleged omission to state
in the Prospectus, or any amendment thereof or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of the Underwriter specifically for inclusion therein, and shall reimburse the
Depositor and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability
17
or action as such expenses are incurred. The only information furnished by or on
behalf of the Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(h) hereof.
The foregoing indemnity agreement is in addition to any liability which the
Underwriter may otherwise have to the Depositor or any such director, officer or
controlling person.
(c) Promptly after receipt by any indemnified party under this Section
8 of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the
Underwriter, if the indemnified parties under this Section 8 consist of the
Underwriter or any of its controlling persons, or the Depositor, if the
indemnified parties under this Section 8 consist of the Depositor or any of the
Depositor's directors, officers or controlling persons.
18
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a), (b) and (c), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party if indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability of any
claims that are the subject matter of such action 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 any indemnified party.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than thirty (30)
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) The Underwriter agrees to provide the Depositor, for filing with
the Commission an Additional Materials 8-K (i) no later than two (2) business
days prior to the day on which the Prospectus Supplement is required to be filed
pursuant to Rule 424 with a copy of any Computational Materials and Structural
Term Sheets (each as defined in Section 5(e) hereof) distributed by the
Underwriter and (ii) no later than one (1) business day after first use with a
copy of any Collateral Term Sheets (as defined in Section 5(e) hereof)
distributed by the Underwriter. If the Underwriter does not provide any
Computational Materials, Structural Term Sheets and Collateral Term Sheets to
the Depositor pursuant to this Section, the Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in connection with
the offering of the Underwritten Securities that is required to be filed with
the Commission in accordance with the Xxxxxx Letters and the PSA Letter. The
Underwriter agrees that the only Computational Materials, Structural Term Sheets
and Collateral Term Sheets that it has used or will use will be those that the
Underwriter provides to the Depositor.
(e) The Underwriter agrees, assuming all Depositor-Provided
Information (as defined in Section 8(g)) is accurate and complete in all
material respects, to indemnify and hold harmless the Depositor, each of its
respective officers and directors and each person who controls the Depositor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, or any action in respect thereof, to which they may become subject
under the Securities 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 a material
fact contained in the Computational Materials, Structural Term Sheets or
Collateral
19
Term Sheets prepared by the Underwriter and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred.
The obligations of the Underwriter under this Section 8(e) shall be in addition
to any liability which the Underwriter may otherwise have. The procedures set
forth in Section 8(c) shall be equally applicable to this Section 8(e).
(f) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Sections 8(a), (b) or (e) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor and the Underwriter from the offering of the
Underwritten Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party failed to give
the notice required under Section 8(c), 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 Depositor and the Underwriter with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Underwriter and the Depositor shall be deemed
to be in such proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the Underwriter from time to time in
negotiated sales of the related Underwritten Securities.
The relative fault of the Underwriter and the Depositor shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 8(f) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(f)
shall be deemed to include, for purposes of this Section 8(f), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall the Underwriter be
responsible for any amount in excess of (x) the amount received by the
Underwriter in connection with its resale of the Underwritten Securities over
(y) the amount paid by the Underwriter to the Depositor for the Underwritten
Securities hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
20
(g) For purposes of this Section 8 (except as otherwise provided) the
terms "Computational Materials", "Structural Term Sheets", "Collateral Term
Sheets" and "Derived Information" mean such portion, if any, of the information
delivered to the Depositor by the Underwriter pursuant to Section 8(d) for
filing with the Commission on an Additional Materials 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through an Additional
Materials 8-K; and
(ii) does not constitute Depositor-Provided Information.
"Depositor-Provided Information" means the information and data set forth on any
computer tape (or other electronic or printed medium) furnished to the
Underwriter by or on behalf of the Depositor concerning the assets comprising
the corpus of the Trust.
(h) The Underwriter confirms that the information set forth in the
following paragraphs or sentence under "Underwriting" in the Prospectus
Supplement has been provided by it to the Depositor: [ ], and the parties hereto
acknowledge that such information, constitutes the only information furnished in
writing by or on behalf of the Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling persons
thereof, or by or on behalf of the Depositor and shall survive delivery of any
Underwritten Securities to the Underwriter.
SECTION 10. [RESERVED].
SECTION 11. Termination of this Agreement. The Underwriter may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section 6(r)
of this Agreement shall occur and be continuing. In the event of any such
termination, the provisions of Section 7, the indemnity agreement set forth in
Section 8, and the provisions of Sections 9 and 16 shall remain in effect.
SECTION 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Asset Backed Securities Group (Fax:
000-000-0000); and
(b) if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to Bear Xxxxxxx Asset Backed Funding II Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel (Fax: 000-000-0000).
21
SECTION 13. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriter and
the Depositor and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and for the benefit of
directors of the Depositor, officers of the Depositor who have signed the
Registration Statement and any person controlling the Depositor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriter contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement shall survive the delivery of and payment for the Underwritten
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
SECTION 15. Definition of the Term "Business Day". For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange is
open for trading.
SECTION 16. Governing Law; Submission to Jurisdiction. 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 RULES THEREOF THAT WOULD
APPLY THE LAW OF ANOTHER JURISDICTION.
The parties hereto hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York and any court in the State
of New York located in the City and County of New York, and appellate court from
any thereof, in any action, suit or proceeding brought against it or in
connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 17. Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
* * *
22
If the foregoing correctly sets forth the agreement among the Depositor and
the Underwriter, please indicate your acceptance in the space provided for the
purpose below.
Very truly yours,
BEAR XXXXXXX ASSET BACKED
FUNDING II INC.
By:
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
By:
----------------------------
Name:
Title:
SCHEDULE A
Underwritten Securities
---------------------- ----------------------
Class Principal Balance
---------------------- ----------------------
A
---------------------- ----------------------
B
---------------------- ----------------------
[C]
---------------------- ----------------------
A-1
