Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT FOR NOTES]
NATIONSBANK, N.A.
NATIONSBANK, N.A. (SOUTH)
NATIONSBANK OF TEXAS, N.A.
SELLERS
NATIONSBANK AUTO OWNER TRUST 199__-__
UNDERWRITING AGREEMENT
____________ ___, 199_
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
100 North Tryon Street, NC1-007-10-01
Charlotte, North Carolina 28255
Ladies and Gentlemen:
NationsBank, N.A., NationsBank, N.A. (South), and NationsBank of
Texas, N.A., each a national banking association (each, a "Company" and
collectively, the "Companies"), propose to form a trust entitled the
NationsBank Auto Owner Trust 199_-_ (the "Trust") pursuant to the terms of a
proposed Amended and Restated Trust Agreement, to be dated as of _________ __,
199_, among each of the Companies, as Depositors, and ________ _____, as Owner
Trustee (the "Trust Agreement"). It is further proposed that the Owner Trustee
will enter into an Indenture, to be dated as of ________ ______, 199__, with
________ ____, as Indenture Trustee (the "Indenture Trustee"), pursuant to
which certain _____ % Asset Backed Notes, Class A-1 (the "Class A-1 Notes")
and certain _____% Asset Backed Notes, Class A-2 (the "Class A-2 Notes" and
collectively with the Class A-1 Notes, the "Notes") will be issued. The
property of the Trust includes a pool of fixed rate simple interest retail
motor vehicle installment sale contracts indirectly originated by the
Companies (collectively, the "Receivables"), certain monies received under the
Receivables after _________ ___, 199_, security interests in the new and used
automobiles, vans and light-duty trucks financed thereby, certain rights of
the Trust under the Sale and Servicing Agreement, certain amounts from time to
time on deposit in certain accounts maintained by the Indenture Trustee for
the benefit of the Noteholders and the Companies' rights to payments under
agreements with dealers of Financed Vehicles and insurance policies relating
to the Receivables. To the extent not defined herein, capitalized terms used
herein shall have the meanings specified in the Trust Agreement.
The Companies propose to sell to the underwriters identified on
Schedule I hereto (the "Underwriters") for whom you are acting as
representative (the "Representative") the principal amount of the Notes
identified in Schedule I hereto.
1. Representations and Warranties. Each Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Companies have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form S-1, registration number 333-3557, under the Securities Act of
1933, as amended (the "Act"), which has become effective, for the
registration under the Act of the Notes. The Companies propose to
file with the Commission pursuant to Rule 424 under the Act a final
prospectus relating to the Notes and the plan of distribution thereof
and have previously advised the Representative of all further
information (financial and other) with respect to the Companies to be
set forth therein. Such registration statement, including the
exhibits thereto, as amended to the date of this Agreement, is
hereinafter called the "Registration Statement"; such prospectus in
the form in which it appears in the Registration Statement is
hereinafter called the "Preliminary Prospectus"; and such final form
of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424, is hereinafter called the "Final
Prospectus."
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined in Section 3), any amendment to
the Registration Statement becomes effective (including the filing of
any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is filed with
the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus,
as amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Companies make no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Companies by or on behalf of any Underwriter through the
Representative specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(c) Such Company has been duly incorporated and is validly
existing as a national banking association under the laws of the
United States and has corporate and other power and authority to own
its properties and conduct its business, as now conducted by it, and
to enter into and perform its obligations under this Agreement, the
Trust Agreement and the Sale and Servicing Agreement and, in the case
of NationsBank, N.A., the Administration Agreement.
(d) Such Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or
for any additional information or (ii) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement.
(e) (i) This Agreement, the Trust Agreement and the Sale and
Servicing Agreement, and in the case of NationsBank, N.A., the
Administration Agreement, have been duly authorized, executed and
delivered by such Company, and each of this Agreement, the Trust
Agreement, and the Sale and Servicing Agreement, and, in the case of
NationsBank, N.A., the Administration Agreement, when executed and
delivered by such Company, does or will, as the case may be,
constitute a legal, valid and binding agreement of such Company,
enforceable against such Company in accordance with its terms,
subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership and similar laws
affecting creditors' rights generally and to general principles of
equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law); and (ii) the Notes,
when duly executed by the Owner Trustee, on behalf of the Trust, and
authenticated by the Indenture Trustee and delivered in accordance
with the Indenture Agreement and delivered and paid for as provided
herein, will be validly issued and outstanding and entitled to the
benefits and security afforded by the Indenture.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, each
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Companies, the principal
amount of the Notes set forth opposite such Underwriter's name in Schedule I
hereto at the purchase price of ________% of the principal amount of such
Notes with respect to the Class A-1 Notes and __________% of the principal
amount of such Notes with respect to the Class A-2 Notes, plus, in each case,
accrued interest from and including __________ ___, 199__ through and
including the date prior to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Notes shall
be made at the offices of Skadden, Arps, Slate, Meagher & Flom, 919 Third
Avenue, New York, New York 10022, at 10:00 a.m. New York time on ________ __,
199_ or such other place as shall be agreed by the Company and the
Underwriters, and which date and time may be postponed by agreement between
the Representative and the Companies or as provided in Section 9 hereof (such
date and time of delivery and payment for the Notes being herein called the
"Closing Date"). Delivery of the Notes shall be made to the Representative for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof
by one or more wires of immediately available funds to an account designated
by the Companies. Delivery of the Notes shall be made through the facilities
of The Depository Trust Company.
4. Representations and Warranties of the Underwriters. Each
Underwriter represents and warrants to, and agrees with, each Company that it
will not, in connection with the offering and sale of the Notes, use (i) any
"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 Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated, and Kidder Structured Asset Corporation and the no-action
letter, dated May 27, 1994, issued by the Division of Corporation Finance of
the Commission to the Public Securities Association or (ii) any "ABS Term
Sheets" within the meaning of the no-action letter, dated February 17, 1995,
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association.
5. Agreements. Each Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Notes,
such Company will not file any amendment to the Registration
Statement or supplement to the Final Prospectus unless such Company
has furnished the Representative a copy of such amendment or
supplement for its review prior to filing and will not file any such
proposed amendment or supplement to which the Representative
reasonably objects. Subject to the foregoing sentence, such Company
will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424. Such Company will advise the Representative
promptly (i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424, (ii) when any amendment to the
Registration Statement relating to the Notes shall have become
effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the
receipt by such Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. Such Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, such Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required
post-effective amendment to the Registration Statement containing
such amendment to be made effective as soon as possible.
(c) Such Company will make generally available to its
security holders and to the Representative as soon as practicable,
but not later than 60 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions
of Rule 158 of the regulations under the Act) covering a twelve-month
period beginning not later than the first day of such Company's
fiscal quarter next following the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(d) Such Company will furnish to the Representative and
counsel for the Underwriters, without charge, executed copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto which shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representative may
reasonably request. Such Company will pay the expenses of printing
all documents relating to the initial offering, provided that any
additional expenses incurred in connection with the requirement of
delivery of a market-making prospectus will be borne by the
Representative.
(e) Such Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as the
Representative may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Notes and will arrange for the determination of the legality of
the Notes for purchase by institutional investors; provided, however,
that such Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Notes shall be subject to the accuracy of
the representations and warranties on the part of each Company contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and
as of the Closing Date, to the accuracy of the statements of each Company made
in any certificates delivered pursuant to the provisions hereof, to the
performance by each Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time period
prescribed by the Commission.
(b) The Companies shall have furnished to the Representative
the opinion of [Issuer's counsel], counsel for the Companies, dated
the Closing Date, to the effect of paragraphs (i), (ii), (iv), (v),
(vi) and (vii) below, and the opinion of Skadden, Arps, Slate,
Meagher & Flom, special counsel to the Companies, dated the Closing
Date, to the effect of paragraphs (iii) and (viii) below:
(i) each Company is a duly organized and validly
existing national banking association in good standing under
the laws of the United States, has the corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, and had at all relevant
times and now has, the power, authority and legal right to
acquire and own the Receivables transferred to the Trust,
and, with respect to NationsBank, N.A., to service such
Receivables, and this Agreement, the Trust Agreement and the
Sale and Servicing Agreement, and, with respect to
NationsBank, N.A., the Administration Agreement, and the
issuance and sale of the Notes have been duly authorized by
each Company;
(ii) the Notes conform in all material respects to
the description thereof contained in the Final Prospectus;
(iii) each of this Agreement, the Trust Agreement
and the Sale and Servicing Agreement and, in the case of
NationsBank, N.A., the Administration Agreement, constitutes
a legal, valid and binding instrument of each Company
enforceable against each Company in accordance with its
terms except as such enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar
laws now or hereafter in effect relating to the enforcement
of creditors' rights in general, as such laws would apply in
the event of a bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting each Company, and (B) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) as well as concepts of reasonableness, good faith and
fair dealing;
(iv) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body
or any arbitrator involving any Company of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(v) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof
or supplement thereto (other than the financial statements
and other financial and statistical information contained
therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules
thereunder;
(vi) no consent, approval, authorization or order
of any court or governmental agency or body is required,
with respect to any Company, for the consummation of the
transactions contemplated herein, or in the Trust Agreement,
the Sale and Servicing Agreement, or the Administration
Agreement, except such as have been obtained under the Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Notes by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(vii) neither the consummation of any of the
transactions herein contemplated or in the Trust Agreement,
the Indenture, or the Administration Agreement, nor the
fulfillment of the terms hereof or thereof will conflict
with, result in a breach of, or constitute a default under
the articles of association or by-laws of any Company or, to
the best knowledge of such counsel, the terms of any
indenture or other agreement or instrument known to such
counsel and to which such Company is a party or bound, or
any order or regulation known to such counsel to be
applicable to such Company of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over such Company; and
(viii) the Trust Agreement has been duly qualified
under the Trust Indenture Act of 1939, as amended, and the
Trust is not, and immediately following the sale of the
Notes pursuant hereto, will not be, required to be
registered under the Investment Company Act of 1940, as
amended.
[Issuer's counsel] shall also state that he has no reason to
believe that the Registration Statement or any amendment thereof at
the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
as of its date and as of the Closing Date, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than (i) the United States or the general corporation laws of the
State of Delaware, (ii) with respect to [Issuer's counsel], the State
of ______________, and (iii) with respect to Skadden, Arps, Slate,
Meagher & Flom, the State of New York, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Companies or their affiliates and public officials.
(c) The Companies shall have furnished to the Representative
an opinion of Skadden, Arps, Slate, Meagher & Flom, special counsel
for the Companies, dated the Closing Date, to the effect that:
(i) the statements in the Final Prospectus under
the heading "Federal Income Tax Consequences" and the
summary thereof under the heading "Prospectus Summary -- Tax
Status," to the extent they constitute matters of Federal
law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material
respects; and
(ii) the statements in the Final Prospectus under
the headings "Certain Legal Aspects of the Receivables" and
"ERISA Considerations," to the extent they constitute
matters of Federal law or legal conclusions with respect
thereto, have been reviewed by such counsel and are correct
in all material respects.
(d) The Companies shall have furnished to the Representative
(i) an opinion or opinions of Skadden, Arps, Slate, Meagher & Flom,
special counsel for the Companies, dated the Closing Date, with
respect to certain matters relating to the effect of receivership of
any Company on such interest in the Receivables and with respect to
other related matters and (ii) opinions of local counsel to each of
the Companies, dated the Closing Date, with respect to the perfection
of the Trust's interest in the Receivables, in each case in a form
previously approved by the Representative and its counsel. In
addition, the Representative shall have received a reliance letter
with respect to any opinion that the Companies are required to
deliver to each Rating Agency.
(e) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom, special counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, in form and
substance satisfactory to the Representative, with respect to the
validity of the Notes, the Registration Statement, the Final
Prospectus and other related matters as the Representative may
require, and the Companies shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(f) The Representative shall have received an opinion of
counsel to the Owner Trustee, dated the Closing Date, to the effect
that:
(i) the Owner Trustee has been duly incorporated
and is validly existing as a banking corporation under the
laws of the State of _______ and has the power and authority
to enter into and to perform all actions required of it
under the Trust Agreement, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement;
(ii) the Trust Agreement, the Indenture, the Sale
and Servicing Agreement and the Administration Agreement
have been duly authorized, executed and delivered by the
Owner Trustee, and each constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against
the Owner Trustee in accordance with its terms except as
such enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or other similar laws now or
hereafter in effect relating to the enforcement of
creditors' rights in general, as such laws would apply in
the event of a bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting the Owner Trustee, and (B)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) as well as concepts of reasonableness, good faith and
fair dealing;
(iii) the execution and delivery of the Trust
Agreement, and on behalf of the Trust, the Indenture, the
Sale and Servicing Agreement, the Administration Agreement,
and the Notes, by the Owner Trustee and the performance by
the Owner Trustee of the terms thereof do not conflict with
or result in a violation of (A) any law or regulation of the
United States or the State of _________ governing the
banking or trust powers of the Owner Trustee or (B) the
certificate of incorporation or articles of association or
by-laws of the Owner Trustee;
(iv) no approval, authorization or other action by,
or filing with, any governmental authority of the United
States or the State of ____________ having jurisdiction over
the banking or trust powers of the Owner Trustee is required
in connection with the execution and delivery by the Owner
Trustee of the Trust Agreement and the Indenture and the
execution, on behalf of the Trust, of the Notes or the
performance by the Owner Trustee thereunder;
(v) the Trust Agreement duly creates for the
benefit of the Companies and the Noteholders the interests
in the Owner Trust Estate which the Trust Agreement purports
to create, and the trust purported to be created by the
Trust Agreement is validly formed and is validly existing as
a business trust in good standing under the laws of the
State of Delaware;
(vi) the Trust Agreement authorizes the Trust to
execute and deliver the Indenture, the Sale and Servicing
Agreement and the Administration Agreement, to issue the
Notes and to grant the Indenture Trust Estate to the
Indenture Trustee as security for the Notes; and
(vii) the Owner Trustee has duly authorized,
issued, executed and delivered each of the Notes pursuant to
the terms and provisions of the Indenture; each of such
Notes is a legal, valid and binding obligation of the Owner
Trustee, enforceable against the Owner Trustee in accordance
with its terms and the terms of the Indenture; and each of
such Notes is entitled to the benefits and security afforded
by the Indenture in accordance with the terms of the
Indenture.
(g) The Representatives, shall have received an opinion of
counsel to the Indenture Trustee, dated the Closing Date, to the
effect that:
(i) the Indenture Trustee has been duly
incorporated and is validly existing as a banking
corporation under the laws of the State of _______ and has
the power and authority to enter into and to perform all
actions required of it under the Indenture;
(ii) the Indenture has been duly authorized,
executed and delivered by the Indenture Trustee, and
constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee
in accordance with its terms except as such enforceability
may be limited by (A) bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or
other similar laws now or hereafter in effect relating to
the enforcement of creditors' rights in general, as such
laws would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship,
receivership or similar occurrence affecting the Indenture
Trustee, and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) as well as concepts of reasonableness,
good faith and fair dealing;
(iii) the Notes have been duly authenticated and
delivered by the Indenture Trustee;
(iv) the execution and delivery of the Indenture
and the authentication and delivery of the Notes by the
Indenture Trustee and the performance by the Indenture
Trustee of the terms of the Indenture do not conflict with
or result in a violation of (A) any law or regulation of the
United States or the State of _________ governing the
banking or trust powers of the Indenture Trustee, or (B) the
certificate of incorporation or articles of association or
by-laws of the Indenture Trustee; and
(v) no approval, authorization or other action by,
or filing with, any governmental authority of the United
States or the State of ____________ having jurisdiction over
the banking or trust powers of the Indenture Trustee is
required in connection with the execution and delivery by
the Indenture Trustee of the Indenture and the
authentication and delivery of the Notes or the performance
by the Indenture Trustee of the terms of the Indenture.
(h) The Companies shall have furnished to the
Representatives a certificate of each Company, signed by any two of
the Chairman of the Board, the President, any Executive Vice
President, the principal treasury officer, the principal financial
officer or the principal accounting officer of such Company, dated
the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement (excluding any
other documents incorporated by reference therein), the Final
Prospectus and this Agreement and that, to the best of their
knowledge:
(i) the representations and warranties of such
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and such Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued, and
no proceedings for that purpose have been instituted or
threatened; and
(iii) since the respective dates as of which
information is given in the Final Prospectus, there has been
no material adverse change in the condition (financial or
other), earnings, business or properties of such Company,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated
in the Final Prospectus.
(i) On the date hereof and on the Closing Date, Price
Waterhouse LLP and/or any other firm of certified independent public
accountants acceptable to the Representative shall have furnished to
the Representative a letter, dated the date hereof and the date of
the Closing Date, respectively, in form and substance satisfactory to
the Representative, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, and stating in
effect that using the assumptions and methodology used by each
Company, all of which shall be described in such letter, they have
recalculated such numbers and percentages set forth in the Final
Prospectus as the Representative may reasonably request and agreed to
by Price Waterhouse LLP, compared the results of their calculations
to the corresponding items in the Final Prospectus, and found each
such number and percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent
historical financial information with respect to each Company and/or
historical financial, delinquency or related information with respect
to one or more servicers is included in the Final Prospectus, such
letter or letters shall also relate to such information.
(j) The Class A-1 Notes shall have received the rating of
"_____" from ______, and the Class A-2 Notes shall have received the
rating of at least "_____" from _______.
(k) Prior to the Closing Date, the Companies shall have
furnished to the Representative such further information,
certificates and documents as the Representative may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and its counsel, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representative. Notice of
such cancellation shall be given to the Companies in writing or by telephone
or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the Notes
provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Companies
to perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Companies will
reimburse, subject to paragraph (e) of Section 8 below, the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Notes.
8. Indemnification and Contribution.
(a) Subject to paragraph (e) of this Section 8, the
Companies agree to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law 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 Registration Statement for the registration of the Notes as
originally filed or in any amendment thereof, or in, any Preliminary
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) no Company will be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representative specifically for use in
connection with the preparation thereof and (ii) such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did
not receive a copy of the Final Prospectus (or the Final Prospectus
as amended or supplemented) at or prior to the confirmation of the
sale of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a
material fact contained in any Preliminary Prospectus was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any
liability which the Companies may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless each Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls a
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Companies by or on behalf of
such Underwriter through the Representative specifically for use in
the preparation of the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Companies
acknowledge that the statements set forth under the heading
"Underwriting" constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representative, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by the Representative in the case of
subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such clause
(i) or (iii). After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party,
which will not be unreasonably withheld, unless such indemnifying
party waived its rights under this Section 8 in writing in which case
the indemnified party may effect such a settlement without such
consent. No indemnifying party may avoid its duty to indemnify under
this Section 8 if such indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of any judgment in, any
pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on all claims that are the subject matter of such action.
An indemnifying party shall not be liable for any settlement of any
claim effected without its consent unless its right to consent under
this Section 8 has been waived in writing.
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) or (b) of this Section 8 is due in accordance with its terms but
is for any reason held by a court to be unavailable from the
Companies or the Underwriters on the grounds of policy or otherwise,
the Companies, subject to paragraph (e) of this Section 8, and the
Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which
the Companies and one or more of the Underwriters may be subject, in
such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Notes
specified in Schedule I hereto and the Companies are responsible for
the balance; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Notes) be responsible for any amount
in excess of the underwriting discount applicable to the Notes
purchased by such Underwriter hereunder.
Notwithstanding anything to the contrary in this paragraph
(d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls a Company within the
meaning of either the Act or the Exchange Act, each officer of a
Company who shall have signed the Registration Statement and each
director of a Company shall have the same rights to contribution as
that Company, subject in each case to the preceding sentence of this
paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
(e) Notwithstanding any other provisions of this Agreement
to the contrary, with respect to its obligations to reimburse
expenses pursuant to Section 7 herein, to indemnify each Underwriter
pursuant to Section 8(a) herein, and to provide contribution pursuant
to Section 8(d) herein, each Company will only be responsible for the
percentage of such expenses, indemnification or contribution, as the
case may be, set forth opposite its name below (which percentages
represent such Company's proportional contribution of Receivables to
the Trust):
NationsBank, N.A. _____%
NationsBank, N.A. (South) _____%
NationsBank of Texas, N.A._____%
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in Schedule I hereto bear to the aggregate amount of
Notes set forth opposite the names of all the remaining Underwriters) the
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Notes set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Notes, and
if such nondefaulting Underwriters do not purchase all the Notes, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Companies. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representative shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to the Companies and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the
Companies prior to delivery of and payment for the Notes, if prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established
on such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or North Carolina, Florida, Georgia and Texas State authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representative, impracticable to market the Notes.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Companies or their officers and of 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
Companies or any of the officers, directors or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Notes.
The provisions of Section 7 and 8 hereof and this Section 11 shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed to NationsBanc Capital Markets, Inc., NationsBank
Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255,
Attention: William A. Glenn, Managing Director, and to any other Underwriter
at such address, if any, as is specified in writing to the Company for notices
hereunder; or, if sent to any Company, will be mailed, delivered or
telegraphed and confirmed to it at NationsBank Corporate Center, 100 North
Tryon Street, Charlotte, North Carolina, 28255, Attention: John E. Mack,
Senior Vice President, with a copy to: NationsBank Corporation, Legal
Department, NC1-007-20-01, NationsBank Corporate Center, 100 North Tryon
Street, Charlotte, North Carolina, 28255, Attention: Paul J. Polking,
General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OF LAWS.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Companies and the several Underwriters.
Very truly yours,
NATIONSBANK, N.A.
By:_________________________
John E. Mack
Senior Vice President
NATIONSBANK, N.A. (SOUTH)
By:_________________________
John E. Mack
Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By:_________________________
John E. Mack
Senior Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
NATIONSBANC CAPITAL MARKETS, INC.,
as Representative
By: NATIONSBANC CAPITAL MARKETS, INC.
By:_______________________________________
William A. Glenn
Managing Director
For itself and the other several Underwriters, if any, named in Schedule I to
the foregoing Agreement.
SCHEDULE I
Principal Amount
of Class A-1 Notes to
Underwriters be Purchased
NationsBanc Capital Markets, Inc. .................$______________
Total...................................$________________
Principal Amount
of Class A-2 Notes to
Underwriters be Purchased
NationsBanc Capital Markets, Inc. ..................$_____________
Total......................................$_____________