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
$__________ ASSET BACKED CERTIFICATES, CLASS B]
BAS SECURITIZATION LLC
(Company)
------------------------------
(Sponsor)
------------------------------
(Sponsor SPE)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
BANC OF AMERICA SECURITIES LLC
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
BAS Securitization LLC, a Delaware limited liability company (the
"Company") and a wholly owned, special purpose, bankruptcy remote subsidiary of
NB Holdings Corporation, a Delaware corporation, proposes to sell to the
Underwriters listed in Schedule I hereto (the
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(1) This form of Underwriting Agreement contains alternative provisions that
relate to offerings of Asset Backed Certificates, on the one hand, and
Asset Backed Notes and Asset Backed Certificates, on the other hand.
"Underwriters") [$__________ 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 ____________________ (the "Sponsor") in its capacity as servicer (in
such capacity, the "Servicer").
The Receivables will be sold to __________, a __________ (the "Sponsor
SPE") by the Sponsor pursuant to a Purchase Agreement, dated as of the Closing
Date (the "Sponsor Purchase Agreement") between the Sponsor SPE and the Sponsor
and to the Company by the Sponsor SPE pursuant to a Purchase Agreement, dated as
of the Closing Date (the "Sponsor SPE Purchase Agreement") between the Company
and the Sponsor SPE. 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 Sponsor. The 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
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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 Company has prepared, in conformity in all material respects with
the provisions of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations"), and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Reg. No. [ ]), including a
prospectus, relating to the Securities. [The Sponsor has] also prepared an ABS
term sheet for the [Securities] [Notes] (the "ABS [Security] [Note] Term Sheet")
in conformity in all material respects with the Act, the Rules and Regulations
(including, without limitation, Rule 415 thereunder) and all requirements
applicable to ABS term sheets and computational materials set forth in no-action
letters issued by the Commission.] The registration statement as amended at the
time it became effective, or, if any post-effective amendment has been filed
with respect thereto, as amended by the most recent post-effective amendment at
the time of its effectiveness, is referred to as the "Registration Statement,"
the form of base prospectus included in the Registration Statement as most
recently filed with the Commission is referred to as the "Base Prospectus" and
the form of the prospectus which includes the Base Prospectus and a prospectus
supplement describing the [Securities] [Notes] and the offering thereof (the
"Prospectus Supplement") which prospectus is first filed on or after the date of
this Agreement in accordance with Rule 424(b) is referred to in this Agreement
as the "Prospectus".
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 Act. "Basic Documents" shall mean the Sponsor Purchase
Agreement, the Sponsor SPE 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 Sponsor and the Sponsor SPE.
"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].
1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties 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 [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.]
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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 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 Mayer, Brown & Platt, [1675 Broadway, New York, New
York 10019] at [10:00 A.M.], 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 and warrants to and agrees with 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
satisfied with respect to the Registration Statement and the Prospectus.
(b) 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 the Rules and
Regulations, 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 Prospectus pursuant to Rule 424(b) and on the
Closing Date the Registration Statement will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
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
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representation and warranty shall not apply to any statements or
omissions contained in the Prospectus other than the Company Information
(as defined herein).
(c) The Company is a limited liability company 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. 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.
(d) 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, 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.
(e) 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 and the Rules and Regulations or state securities
laws and any filings of UCC financing statements.
(f) 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 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
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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.
(g) 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 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 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, 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 or the
marketability of any of the Securities.
(h) 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 and the Rules and Regulations
which are not filed or described as required.
(i) 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.
(j) 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.
5. Each Participating Entity represents and warrants (jointly and
severally) to and agrees with each Underwriter that:
(a) (i) On the date of this Agreement, the Prospectus conforms in
all material respects to the requirements of the Act and the Rules and
Regulations, 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 and (ii) at the
time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of [Securities] [Notes] will, at
the
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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 ("EDGAR"), except to the extent
permitted by Regulation S-T; 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, in light of the circumstances under which they were made, not
misleading; provided, however, 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 Prospectus (collectively, "Underwriter
Information") or (y) under the caption "The Company" in the Base
Prospectus (the "Company 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 [eighth] paragraph under the caption
"Underwriting" in the Prospectus Supplement regarding the Underwriters'
intention to make a market in the [Securities] [Notes]].
(ii) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
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 Prospectus, at the time the Registration Statement became
effective, at the date of 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 except in the case of ABS [Security][Note] Term
Sheets, and also to the extent such documents accurately reflect
or are accurately based upon information furnished by or on
behalf of the Participating Entities to the Underwriters for the
purpose of preparing such documents.
(b) 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.
(c) 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
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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.
(d) 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 Participating Entity, enforceable
against such Participating Entity in accordance with its 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. The Securities and the Basic Documents conform to
the descriptions thereof in 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.]
(e) 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 and the Rules and Regulations or state
securities laws and any filings of UCC financing statements.
(f) 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.
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(g) 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 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.
(h) 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 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, 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 or the marketability of any of the Securities.
(i) There are no contracts or other documents of a character
required to be described in the Prospectus pursuant to the Act and the
Rules and Regulations which are not filed or described as required.
(j) Since the respective dates as of which information is given
in the Registration Statement and the 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.
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(k) 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.
(l) 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.
(m) ____________________ are independent public accountants with
respect to the Participating Entities within the meaning of the Act and
the Rules and Regulations.
(n) 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 Prospectus.
(o) 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 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 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 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 [and the Company will
cause the ABS [Security] [Note] Term Sheet to be filed with the
Commission pursuant to a Current Report on Form 8-K within the second
business day following the first day the ABS [Security] [Note] Term
Sheet has been sent to a prospective investor in the [Securities]
[Notes]] and will provide evidence satisfactory to the Underwriters of
such timely filing. The Company will promptly advise the Underwriters
(i) when the Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b) [and the ABS
[Security] [Note] Term Sheet shall have been filed pursuant to a Current
Report on Form 8-K], (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 Prospectus or for any additional information, (iv) of the receipt
by the Company of
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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 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 or Prospectus,
as applicable, shall not be deemed a waiver of any condition set forth
in Section 8 hereof.
(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 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 Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not materially misleading, or it
is necessary to amend or supplement 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 Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
materially misleading or so that 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
-11-
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 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
Prospectus.
-12-
(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 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.
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[,] [and] the Prospectus [and any preliminary
prospectus] [and the ABS [Security] [Note] Term Sheet] (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 ABS [Security] [Note] Term Sheet] [, any 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 and warranties 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
-13-
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 Prospectus and (ii) a letter dated the date of the
computational materials or Term Sheets, in form and substance as
previously agreed to by the Representative and otherwise satisfactory in
form and substance to the Underwriters and counsel for the Underwriters,
to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Representative as a
result of which they have determined that the information included in
the computational materials or Term Sheets (if any), provided by the
Underwriters to the [Company] for filing on Form 8-K, is accurate.
(b) 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 Rules and
Regulations and in accordance with Section 5(a) of this Agreement; [the
ABS [Security] [Note] Term Sheet shall have been filed with the
Commission pursuant to a Current Report on Form 8-K within two business
days following the first day the ABS [Security] [Note] Term Sheet is
first sent to prospective investors in the [Securities] [Notes];] 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
-14-
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) Mayer Brown & Platt, 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.
(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, (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 Mayer,
Brown & Platt, 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.]
-15-
(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 Moody's, "____" by Fitch and "____" by Standard and Poor's and the
Class __ Certificates shall be rated "____" by Moody's, "____" 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 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
-16-
(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 Prospectus (as amended or supplemented if
the Participating Entities or the Company shall have furnished such
amendments or supplements thereto) [or any preliminary prospectus] [or
the ABS [Security] [Note] Term Sheet,] 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 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 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.
(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) 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
-17-
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
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.
(e) If the indemnification provided for in the first, second and
third 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
-18-
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.
(f) 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 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 otherwise 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
-19-
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.
(g) 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.
(h) The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties 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. 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 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 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 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.
-20-
11. 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 and in the 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.
12. 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 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.
13. 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, 100 North Tryon Street, Charlotte North Carolina 28255 [(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: ____________________.
-21-
14. 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.
15. 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.
16. 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.
The provisions of this Section 16 and Sections 7, 9 and 12 hereof shall survive
the termination or cancellation of this Agreement.
17. 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.
[SIGNATURE PAGES FOLLOW]
-22-
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:
S-1
____________________________________
By: ________________________________
Name:
Title:
S-2
____________________________________
By: ________________________________
Name:
Title:
S-3
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-4
SCHEDULE I
- -------------------------------------------------------------------------------------------------------------
Initial Initial Initial
Principal Principal Principal
Amount Amount Amount
of Class A-1 of Class A-2 of Class A-3
Asset-Backed Asset-Backed Asset-Backed
Notes Notes Notes
- -------------------------------------------------------------------------------------------------------------
$ $ $
- -------------------------------------------------------------------------------------------------------------
$ $ $
- -------------------------------------------------------------------------------------------------------------
Total: $ $ $
- -------------------------------------------------------------------------------------------------------------
Purchase Price: % % %
- -------------------------------------------------------------------------------------------------------------
I-1