Exhibit 1.2
$[ ]
(Approximate)
WHOLE AUTO LOAN TRUST 20[ - ]
ASSET BACKED CERTIFICATES
FORM OF UNDERWRITING AGREEMENT
(Grantor Trust)
[ ], 20[ ]
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Bear ▇▇▇▇▇▇▇ Asset Backed Funding Inc. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Whole Auto Loan Trust 20[
- ] Asset Backed Certificates, in the classes, in the respective original
principal amounts and with the designations set forth in Schedule A hereto
(the "Underwritten Securities"), issued by Whole Auto Loan Trust 20[ - ] (the
"Trust"). Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "Underwriter") pursuant to this
underwriting agreement (the "Underwriting Agreement" or this "Agreement") is
purchasing the Underwritten Securities at the prices set forth on Schedule A
hereto, and upon the terms and conditions contained herein. The Trust's Assets
will include, among other things, a pool of [retail installment sales
contracts, retail installment loans, purchase money notes or other notes]
secured by [new and used automobiles, light-duty trucks, motorcycles,
recreational vehicles, vans, minivans and/or sport utility vehicles] (the
"Receivables"), certain monies due or received thereunder on or after
[_________], 20[__] (the "Cutoff Date"), security interests in the vehicles
financed thereby, certain accounts, and the proceeds thereof, and the proceeds
from claims on certain insurance policies.
The Receivables will be sold to the Depositor by [SELLER] ("[ ]"), as
seller (in such capacity, the "Seller"), pursuant to a Sale and Servicing
Agreement (the "Sale and Servicing Agreement") to be dated as of the Cutoff
Date, between the Depositor and [SELLER], as Seller and as servicer (in such
capacity, the "Servicer"). The Servicer will service the Receivables
pursuant to the Sale and Servicing Agreement. The Receivables will be sold to
the Trust by the Depositor pursuant to a Receivables Purchase Agreement (the
"Receivables Purchase Agreement") to be dated as of the Cutoff Date, between
the Depositor and the Trust.
The Underwritten Securities will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cutoff Date, among the Depositor, [____________], as servicer and custodian
(the "Servicer"), and [_____________], as trustee (the "Trustee").
[Simultaneously with the issuance of the Underwritten Securities, the Trust
will issue its Class [___] Certificates (collectively, the "Privately Offered
Securities" and together with the Underwritten Securities, the "Securities")].
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement. This
Underwriting Agreement, the Pooling and Servicing Agreement, the Receivables
Purchase Agreement and the Sale and Servicing Agreement are referred to herein
collectively as the "Operative Agreements."
SECTION 1. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with you that:
(a) A Registration Statement on Form S-3 (No. 333-99207) has (i)
been prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under the
Securities Act. Copies of such Registration Statement have been delivered by
the Depositor to the Underwriter. As used in this Underwriting Agreement,
"Effective Time" means the date and the time as of which such Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means such registration statement, at
the Effective Time, including any documents incorporated by reference therein
at such time; and "Prospectus" means the final prospectus dated [ ], 20[ ], as
supplemented by the final Prospectus Supplement dated [ ], 20[ ], (the
"Prospectus Supplement") relating to the Underwritten Securities, to be filed
with the Commission pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of
the Rules and Regulations. Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act as of the date of the
Prospectus and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of such Prospectus, as the case may be, and incorporated by reference in
such Prospectus, as the case may be, and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the Depositor
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus. There are no contracts or documents of
the Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which
have not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement other than such documents or
materials, if any, as
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the Underwriter delivers to the Depositor pursuant to Section 8(e) hereof for
filing on an Additional Materials 8-K (as defined below). The conditions for
use of Form S-3, as set forth in the General Instructions thereto, have been
satisfied.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations thereunder. The Registration
Statement, as of the Effective Date thereof and of any amendment thereto, did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus as of its date, and as amended or supplemented,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Depositor in writing by any Underwriter expressly for use therein. The only
information furnished by the Underwriter or on behalf of the Underwriter for
use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(k) hereof.
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the Rules and Regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that no representation is made as to
Computational Materials, Structural Term Sheets and Collateral Term Sheets
(each as defined herein) deemed to be incorporated by reference in the
Prospectus as the result of filing an Additional Materials 8-K (as defined
below) pursuant to the terms hereof except to the extent such Computational
Materials, Structural Term Sheets and Collateral Term Sheets reflect
information furnished by the Depositor to the Underwriter.
(d) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor.
(e) The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification, and has
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all power and authority necessary to own or hold its properties, to conduct the
business in which it is engaged and to enter into and perform its obligations
under the Operative Agreements to which it is a party and to cause the
Securities to be issued.
(f) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before, or
threatened by, any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a)
which if determined adversely to the Depositor would have a material adverse
effect on the business or financial condition of the Depositor, (b) which
assert the invalidity of any of the Operative Agreements to which it is a
party or the Securities, (c) which seek to prevent the issuance of the
Securities or the consummation by the Depositor of any of the transactions
contemplated by any of the Operative Agreements to which it is a party or (d)
which might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of any of the
Operative Agreements to which it is a party or the Securities.
(g) This Underwriting Agreement has been, and each other Operative
Agreement to which the Depositor is a party, when executed and delivered as
contemplated hereby and thereby, will have been, duly authorized, executed and
delivered by the Depositor, and this Underwriting Agreement constitutes, and
each other Operative Agreement when executed and delivered as contemplated
hereby and thereby, will constitute, legal, valid and binding instruments
enforceable against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (z) with respect to rights
of indemnity under this Underwriting Agreement or any other Operative
Agreement, limitations of public policy under applicable securities laws.
(h) The execution, delivery and performance of the Operative Agreements
to which it is a party by the Depositor and the consummation of the
transactions contemplated hereby and thereby, and the issuance and delivery of
the Securities do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the Depositor is bound
or to which any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a material
adverse effect on the business, operations or financial condition of the
Depositor, nor will such actions result in any violation of the provisions of
the Certificate of Incorporation or By-Laws of the Depositor or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor.
(i) The Depositor has no reason to believe that [ ] is not an
independent public accountant with respect to the Depositor as required by the
Securities Act and the Rules and Regulations.
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(j) When the Securities are duly and validly executed and authenticated
by the Trustee and delivered in accordance with the Pooling and Servicing
Agreement and paid for, the Securities will be validly issued and outstanding
and entitled to the benefits and security afforded by the Pooling and
Servicing Agreement.
(k) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Securities and the sale of
the Underwritten Securities to the Underwriter, or the consummation by the
Depositor of the other transactions contemplated by the Operative Agreements,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Underwritten Securities
by the Underwriter or as have been obtained.
(l) The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted
by it and as described in the Prospectus, and the Depositor has not received
notice of any proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which if decided adversely to
the Depositor would, singly or in the aggregate, materially and adversely
affect the conduct of its business, operations or financial condition.
(m) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) be the sole beneficial owner of the
Receivables conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any Person any of its right
or title in the Receivables, in the Receivables Purchase Agreement or in the
Underwritten Securities; and (iii) have the power and authority to sell its
interest in the Receivables to the Trust and to sell the Underwritten
Securities to the Underwriter. Upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trust will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to the
Receivables. Upon delivery to the Underwriter of the Underwritten Securities,
the Underwriter will have good title to the Underwritten Securities, free and
clear of any Liens.
(n) As of the Cut-off Date, each of the Receivables will meet the
eligibility criteria described in the Prospectus and will conform in all
material respects to the descriptions thereof contained in the Prospectus.
(o) Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the Rules and
Regulations of the Commission thereunder.
(p) At the Closing Date, the Underwritten Securities and the Operative
Agreements will conform in all material respects to the descriptions thereof
contained in the Prospectus.
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(q) At the Closing Date (i) the Class A Certificates will have been rated
"[ ]" by [ ] ("[ ]") and "[ ]" by [ ] ("[ ]", and together with [ ], the
"Rating Agencies"), [and] (ii) the Class B Certificates will have been rated
"[ ]" by [ ] and "[ ]" by [ ] [,and (iii) the Class [ ] Certificates will have
been rated "[ ]" by [ ] and "[ ]" by [ ]].
(r) Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Operative Agreements and the
Securities have been paid or will be paid at or prior to the Closing Date.
(s) At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Operative Agreements will be true and correct
in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
the Underwriter or counsel for the Underwriter in connection with an offering
of the Underwritten Securities shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriter to
purchase the Underwritten Securities pursuant to this Underwriting Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth. The Depositor agrees to cause the Trustee to issue the
Underwritten Securities and agrees to sell to the Underwriter, and the
Underwriter agrees (except as provided in Section 11) to purchase from the
Depositor, the aggregate principal balance of the Underwritten Securities set
forth in Schedule A for the aggregate purchase price of $[ ].
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities to be purchased by the Underwriter shall be made at
the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, 787 Seventh Avenue, New York,
New York, or at such other place as shall be agreed upon by the Underwriter
and the Depositor at 10:00 a.m. New York time on [ ], 20[ ] or at such other
time or date as shall be agreed upon in writing by the Underwriter and the
Depositor (such date being referred to as the "Closing Date"). Payment shall
be made to the Depositor by wire transfer of same day funds payable to the
account of the Depositor. Delivery of the Underwritten Securities shall be
made to the Underwriter for the account of the Underwriter against payment of
the purchase price thereof. The Underwritten Securities shall be in such
authorized denominations and registered in such names as the Underwriter may
request in writing at least two business days prior to the Closing Date. The
Underwritten Securities will be made available for examination by the
Underwriter no later than 2:00 p.m. New York City time on the first business
day prior to the Closing Date.
SECTION 4. Offering by the Underwriter. It is understood that, subject to
the terms and conditions hereof, the Underwriter proposes to offer the
Underwritten Securities for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor covenants and agrees
as follows:
(a) To prepare (by no later than the second business day immediately
preceding the Closing Date) the Prospectus in a form approved by the
Underwriter and to file
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such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the Commission's close of business on the second business day following
the availability of the Prospectus to the Underwriter and to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
prior to the Closing Date except as permitted herein; to advise the
Underwriter, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
prior to the Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriter with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and, for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Underwritten Securities to advise the Underwriter promptly of its
receipt of notice of the issuance by the Commission of any stop order or of:
(i) any order preventing or suspending the use of the Prospectus; (ii) the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose; and (iv) any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or suspending any
such qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriter such number of the following
documents as the Underwriter shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Prospectus and
any amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Underwritten Securities , and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, the Depositor
shall notify the Underwriter and, upon the Underwriter's request, shall file
such document and prepare and furnish without charge to the Underwriter and to
any dealer in securities as many copies as the Underwriter may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such
compliance.
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(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriter, be required by
the Securities Act or requested by the Commission.
(e) The Depositor will (i) cause any Computational Materials or any
Structural Term Sheet (each as defined below in this subsection) with respect
to the Underwritten Securities which are delivered by the Underwriter to the
Depositor to be filed with the Commission on an Additional Materials 8-K (as
defined below) (A) at or before the time of filing of the Prospectus pursuant
to Rule 424(b) under the Securities Act in the case of Computational Materials
or any Structural Term Sheets provided to investors prior to the availability
of such Prospectus, and (B) within two business days of first use in the case
of Computational Materials or any Structural Term Sheet provided to investors
subsequent to the availability of, but before the sending or giving of, such
Prospectus and (ii) cause any Collateral Term Sheet (as defined below in this
subsection) with respect to the Underwritten Securities which are delivered by
any Underwriter to the Depositor to be filed with the Commission on an
Additional Materials 8-K within two business days after the date on which such
Underwriter advises the Depositor that such Collateral Term Sheet was first
used; provided, however, that the Depositor shall have no obligation to file
any materials which, in the reasonable determination of the Depositor after
consultation with the Underwriter, (x) are not required to be filed pursuant
to the ▇▇▇▇▇▇ Letters and/or the PSA Letter (each as defined below) or (y)
contain any erroneous information or untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood, however, that
the Depositor shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any Computational Materials, Structural Term
Sheets or Collateral Term Sheets provided by the Underwriter to the Depositor
as aforesaid. For purposes of this subsection (e), (1) the term "Computational
Materials" shall mean those materials which constitute "computational
materials" within the meaning of the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I and certain affiliates and the no action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "▇▇▇▇▇▇
Letters") and the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance to the Public Securities Association (the "PSA
Letter") for which the filing of such material on an Additional Materials 8-K
is a condition of the relief granted in such letters; (2) the terms
"Structural Term Sheet" and "Collateral Term Sheet" shall mean those materials
which constitute "structural term sheets" and "collateral term sheets" within
the meaning of the PSA Letter for which the filing of such material on an
Additional Materials 8-K is a condition of the relief granted in such letter;
and (3) the term "Additional Materials 8-K" shall mean a Current Report on
Form 8-K used to file Computational Materials, Structural Term Sheets and/or
Collateral Term Sheets.
(f) To furnish the Underwriter and counsel for the Underwriter, prior to
filing with the Commission, and to obtain the consent of the Underwriter for
the filing of the following documents relating to the Securities: any (i)
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) Prospectus
pursuant to Rule 424 of the Rules and Regulations.
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(g) To make generally available to holders of the Underwritten Securities
as soon as practicable, but in any event not later than [90] days after the
close of the period covered thereby, a statement of earnings of the Trust
(which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Depositor, Rule
158) and covering a period of at least twelve (12) consecutive months
beginning not later than the first day of the first fiscal quarter following
the Closing Date.
(h) To use its best efforts, in cooperation with the Underwriter, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriter may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for
the distribution of the Underwritten Securities; provided, however, that in
connection therewith, the Depositor shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction. The Depositor will file or cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in which the
Underwritten Securities have been so qualified.
(i) During the period from the date of the Prospectus to and including
the business day after the Closing Date, to not offer for sale, sell, contract
to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offering of, any securities
collateralized by, or evidencing an ownership interest in, a pool of [retail
installment sales contracts, retail installment loans, purchase money notes or
other notes] secured by [new and used automobiles, light-duty trucks,
motorcycles, recreational vehicles, vans, minivans and/or sport utility
vehicles] without the prior written consent of the Underwriter.
(j) For a period from the date of this Underwriting Agreement until the
retirement of the Securities, to deliver to the Underwriter the annual
statement of compliance and the annual independent certified public
accountants' report furnished to the Trustee, pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to
the Trustee.
(k) To apply the net proceeds from the sale of the Underwritten
Securities in the manner set forth in the Prospectus Supplement.
SECTION 6. Conditions to the Underwriter's Obligations. The obligations
of the Underwriter to purchase the Underwritten Securities pursuant to this
Underwriting Agreement are subject to: (i) the accuracy on and as of the
Closing Date of the representations and warranties on the part of the
Depositor herein contained; (ii) the performance by the Depositor of all of
its obligations hereunder; and (iii) the following conditions as of the
Closing Date:
(a) The Underwriter shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with.
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(b) The Underwriter shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of the
Underwriter and its counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Operative Agreements, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Underwriting Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to the Underwriter and its
counsel, and the Depositor shall have furnished to Underwriter and its counsel
all documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) The Pooling and Servicing shall have been duly executed and delivered
by the Depositor and the Trustee and the Securities shall have been duly
executed and delivered by the Trustee on behalf of the Trust.
(e) The Sale and Servicing Agreement shall have been duly executed and
delivered by the Depositor, the Servicer and the Seller.
(f) [[_____________], counsel to the Depositor, shall have furnished to
the Underwriter [his/her] written opinion, as counsel to the Depositor,
addressed to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
to execute, deliver and perform the Operative Agreements to which it is a
party and the transactions contemplated thereby.
(ii) The Depositor is not in violation of its Certificate of
Incorporation or By-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be
bound, which default might result in any material adverse change in the
financial condition, earnings, affairs or business of the Depositor, or
which might materially and adversely affect the ability of the Depositor
to perform its obligations under any of the Operative Agreements to which
it is a party.
(iii) Each of the Operative Agreements to which the Depositor is a
party has been duly authorized, executed and delivered by the Depositor,
and, assuming the due authorization, execution and delivery of such
agreements by the other parties thereto, such agreements constitute valid
and binding obligations, enforceable against the Depositor in accordance
with their respective terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, (y)
general principles of equity
10
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (z) with respect to rights of indemnity under this
Underwriting Agreement and the Receivables Purchase Agreement,
limitations of public policy under applicable securities laws.
(iv) The execution, delivery and performance by the Depositor of the
Operative Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby, do not and will not
conflict with or result in a breach or violation of any of the terms of
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Depositor, is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, which breach
or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor nor will such actions
result in a violation of the provisions of the Certificate of
Incorporation or By-laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets, which
breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor.
(v) To [his/her] knowledge, there are no actions, proceedings or
investigations pending before or threatened by any court, administrative
agency, or other tribunal to which the Depositor is a party or of which
any of its properties is the subject: (a) which if determined adversely
to the Depositor would have a material adverse effect on the business,
results of operations or financial condition of the Depositor; (b)
asserting the invalidity of any of the Operative Agreements to which it
is a party; (c) seeking to prevent the consummation by the Depositor of
any of the transactions contemplated by any of the Operative Agreements
to which it is a party; or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of any of the Operative Agreements to which it
is a party.]
(g) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the
Underwriter their written opinion, as special counsel to the Depositor,
addressed to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "Act"); to such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn and no proceedings for that
purpose have been instituted or threatened and not terminated; and the
Registration Statement and the Prospectus, as of their respective
effective or issue dates (in each case other than the documents
incorporated therein by reference (including, without limitation, the
"Computational Materials", "Structural Term Sheets" and "Collateral Term
Sheets" filed by the Depositor with the Commission on Form 8-K) and the
financial and statistical information contained therein, as to which such
counsel expresses no opinion, complied as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations thereunder;
11
(ii) To such counsel's knowledge, there are no material contracts,
indentures or other documents of a character required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto;
(iii) The statements in the Prospectus under the headings "ERISA
Considerations" and "Material Federal Income Tax Considerations", and the
statements in the Prospectus Supplement under the headings
"Summary-Federal Tax Considerations" and "-ERISA Considerations",
"Material Federal Income Tax Consequences" and "ERISA Considerations", to
the extent that they constitute matters of federal law or legal
conclusions with respect thereto, have been reviewed by us and are
correct in all material respects with respect to those consequences or
aspects that are discussed;
(iv) The Underwritten Securities, the Pooling and Servicing
Agreement, the Sale and Servicing Agreement and the Receivables Purchase
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus;
(v) Assuming that the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes
a valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law;
(vi) [Assuming that the Sale and Servicing Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes
a valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law;]
(vii) Assuming that the Receivables Purchase Agreement has been duly
authorized, executed and delivered by the parties thereto, it constitutes
a valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law;
(viii)Assuming that the Securities have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement, when delivered and paid for, the
Securities will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement;
12
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not required to
be registered under the Investment Company Act of 1940, as amended.
Such counsel shall have endeavored to see that the Registration Statement
and the Prospectus comply with the Act and the rules and regulations of the
Commission thereunder relating to registration statements on Form S-3 and
related prospectuses, but such counsel cannot, of course, make any
representation to you as to the accuracy or completeness of statements of fact
contained therein. Nothing, however, shall have come to such counsel's
attention that has caused such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement or at the Closing
Date, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading other than (i) the information incorporated therein by reference
(including, without limitation, any Computational Materials, Structural Term
Sheets and Collateral Term Sheets), and (ii) the financial, statistical and
numerical information contained therein, as to which in each case such counsel
need make no statement.
(h) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the
Underwriter their written opinion, addressed to the Underwriter and dated the
Closing Date, with respect to certain matters relating to the transfer of the
Receivables to the Trust, in form and substance reasonably satisfactory to the
Underwriter and its counsel.
(i) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the
Underwriter their written opinion, addressed to the Underwriter and dated the
Closing Date, with respect to certain tax matters relating to the issuance of
the Securities, in form and substance reasonably satisfactory to the
Underwriter and its counsel.
(j) The Underwriter shall have received from [___________], counsel for
the Underwriter, such opinion or opinions, dated the Closing Date, with
respect to such matters as the Underwriter may require, and the Depositor
shall have furnished to such counsel such documents as they reasonably request
for enabling them to pass upon such matters.
(k) [____________], counsel to the Trustee, shall have furnished to the
Underwriter their written opinion, as counsel to the Trustee, addressed to the
Underwriter and dated the Closing Date, regarding the due organization of the
Trustee, the due authorization, execution and delivery by the Trustee of the
Pooling and Servicing Agreement, no conflicts or violations of organizational
documents, contracts or law and other related matters, in form and substance
reasonably satisfactory to the Underwriter and its counsel.
(l) The Underwriter shall have received a certificate, dated the Closing
Date, of any of the Chairman of the Board, the President, any Senior Vice
President or the chief financial officer of the Depositor stating that (A) the
representations and warranties of the Depositor contained in this Underwriting
Agreement and the Operative Agreements to which it is a party are true and
correct on and as of the Closing Date, (B) the Depositor has complied with
13
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder and under such agreements at or prior to the Closing Date,
(C) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or,
to the best of his or her knowledge, are contemplated by the Commission, and
(D) since [______], [____], there has been no material adverse change in the
financial position or results of operations of the Depositor or any change, or
any development including a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of the
Depositor except as set forth in or contemplated by the Registration Statement
and the Prospectus.
(m) [The Seller shall have furnished to the Underwriter (1) a
certificate, dated the Closing Date and signed by the Chairman of the Board,
the President or a Vice President of the Seller, stating:
(i) The representations and warranties made by the Seller in each of
the Operative Agreements to which the Seller is a party are true and
correct as of the Closing Date.
(ii) There has been no amendment or other document filed affecting
the Certificate of Incorporation or By-Laws of the Seller since [ ], 20[
] and no such amendment has been authorized.
(iii) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Seller.
(iv) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus Supplement, and
the Seller has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority or
permit which if decided adversely to the Seller would, singly or in the
aggregate, materially and adversely affect the conduct of its business,
operations or financial condition.
(v) At the time of execution and delivery of the Receivables
Purchase Agreement, the Seller will: (i) be the sole beneficial owner of
the Receivables conveyed by the Seller to the Depositor, free and clear
of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"); (ii) not have assigned
to any Person any of its right or title in the Receivables; and (iii)
have the power and authority to sell its interest in the Receivables to
the Depositor.]
(n) The Trustee shall have furnished to the Underwriter a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
each of the Operative Agreements to which the Trust is a party and the
acceptance by the Trustee of the trusts created thereby and the due execution
and delivery of the Securities by the Trustee thereunder and such other
matters as the Underwriter shall reasonably request.
14
(o) At the Closing Date (i) the Class A Certificates will have been rated
"[ ]" by [ ] ("[ ]") and "[ ]" by [ ] ("[ ]", and together with [ ], the
"Rating Agencies"), [and] (ii) the Class B Certificates will have been rated
"[ ]" by [ ] and "[ ]" by [ ] [,and (iii) the Class [ ] Certificates will have
been rated "[ ]" by [ ] and "[ ]" by [ ]].
(p) The Depositor shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably have
requested not less than three full business days prior to the Closing Date.
(q) Prior to the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Depositor in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
(r) Subsequent to the execution and delivery of this Underwriting
Agreement none of the following shall have occurred: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall have
been established on either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental authority
having jurisdiction; (ii) a banking moratorium shall have been declared by
federal or state authorities; (iii) the United States shall have become
engaged in hostilities, there shall have been any attack on, outbreak or
escalation of hostilities or acts of terrorism involving the United States or
there shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the effect
of international conditions on the financial markets of the United States
shall be such) as to make it in any of the instances set forth in clauses (i),
(ii), (iii) and (iv) herein, in the judgment of the Underwriter, impractical
or inadvisable to proceed with the public offering or delivery of the
Underwritten Securities on the terms and in the manner contemplated in the
Prospectus.
(s) The Underwriter shall have received from [ ], letters, dated the date
hereof and satisfactory in form and substance to the Underwriter and its
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Prospectus Supplement agrees with the records of the
Seller and the Servicer excluding any questions of legal interpretation.
(t) The Underwriter shall have received from [ ], certified public
accountants, a letter dated the date hereof and satisfactory in form and
substance to the Underwriter and its counsel, to the effect that they have
performed certain specified procedures and recomputations as a result of which
they have confirmed the numerical information set forth in the Computational
Materials, Structural Term Sheets and Collateral Term Sheets.
15
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement
may be terminated by the Underwriter by notice to the Depositor at any time at
or prior to the Closing Date, and such termination shall be without liability
of any party to any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriter.
SECTION 7. Payment of Expenses. As between the Depositor and the
Underwriter, the Depositor agrees to pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including
without limitation those relating to: (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith; (b) a portion of the fees previously paid to
the Commission with respect to the filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus (including the Prospectus Supplement) or any document incorporated
by reference therein, all as provided in this Underwriting Agreement; (d) the
costs of reproducing and distributing this Underwriting Agreement; (e) the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in Section 5(h), if
necessary, hereof and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses
of counsel to the Underwriter); (f) any fees charged by securities rating
services for rating the Securities; and (g) all other costs and expenses
incident to the performance of the obligations of the Depositor (including
costs and expenses of your counsel).
If this Underwriting Agreement is terminated by the Underwriter in
accordance with the provisions of Section 6 or Section 11, the Depositor shall
cause the Underwriter to be reimbursed for all reasonable out-of-pocket
expenses, including fees and disbursements of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriter.
SECTION 8. Indemnification and Contribution. (a) The Depositor agrees to
indemnify and hold harmless the Underwriter and the Seller and each person, if
any, who controls the Underwriter or the Seller within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against
any and all loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Underwritten
Securities), to which the Underwriter or the Seller or any such controlling
person may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, or any amendment
thereof or supplement thereto, (ii) the omission or alleged omission to state
in the Registration Statement or any amendment thereof or supplement thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or any
amendment thereof or supplement thereto, or
16
(iv) the omission or alleged omission to state in the Prospectus or any
amendment thereof or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
the Underwriter, the Seller and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Underwriter,
the Seller or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Depositor shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Prospectus, or any amendment thereof or supplement thereto, or the
Registration Statement, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Depositor by or on behalf of the Underwriter or the Seller specifically for
inclusion therein, it being understood that the only information furnished by
or on behalf of (1) the Underwriter for use in connection with the preparation
of the Registration Statement or the Prospectus is described in Section 8(i)
hereof; (2) the Seller, is the Seller-Provided Information and the Seller
Prospectus Information. The foregoing indemnity agreement is in addition to
any liability which the Depositor may otherwise have to the Underwriter or the
Seller or any controlling person of the Underwriter or the Seller.
(b) The Underwriter agrees to indemnify and hold harmless the Depositor
and the Seller, each of their directors, each of the officers of the Depositor
who signed the Registration Statement, and each person, if any, who controls
the Depositor or the Seller within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, claim, damage
or liability, or any action in respect thereof, to which the Depositor, the
Seller or any such director, officer or controlling person may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment thereof or supplement thereto,
(ii) the omission or alleged omission to state in the Registration Statement
or any amendment thereof or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment thereof or supplement thereto,
or (iv) the omission or alleged omission to state in the Prospectus, or any
amendment thereof or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of the
Underwriter specifically for inclusion therein, and shall reimburse the
Depositor and the Seller and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Depositor, the
Seller or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The only
information furnished by or on behalf of the Underwriter for use in connection
with the preparation of the Registration Statement or the Prospectus is
described in Section 8(i) hereof. The foregoing indemnity agreement is in
addition
17
to any liability which the Underwriter may otherwise have to the Depositor,
the Seller or any such director, officer or controlling person.
(c) The Seller agrees to indemnify and hold harmless the Underwriter and
the Depositor and each of their directors, each of their officers and each
person or entity who controls the Underwriter or the Depositor or any such
person, within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint and several, to which the Underwriter or the Depositor, or
any such person or entity may become subject, under the Securities Act, the
Exchange Act or otherwise, and will reimburse the Underwriter and the
Depositor, each such director and officer and each such controlling person for
any legal or other expenses incurred by the Underwriter or the Depositor or
such controlling person in connection with investigating or defending any such
loss, claims, damages or liabilities insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in (i) the Registration Statement, the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement approved in writing by
the Seller, (ii) the Seller Prospectus Information (as defined below) or (iii)
the Computational Materials, Structural Term Sheets or Collateral Term Sheets
distributed by the Underwriter, unless such untrue statement or alleged untrue
statement of a material fact was made in reliance upon and in conformity with
Derived Information (as defined in Section 8(h) below) provided by the
Underwriter expressly for use in the Computational Materials, the Structural
Term Sheets or the Collateral Term Sheets and the untrue statement or alleged
untrue statement did not derive from an inaccuracy in the Seller-Provided
Information (as defined in Section 8(h) below) used in the preparation of such
Computational Materials, Structural Term Sheets or Collateral Term Sheets, the
omission or the alleged omission to state therein a material fact necessary in
order to make the statements in the Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement approved in writing by the Seller or
the Seller Prospectus Information, in light of the circumstances under which
they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission relates
to the information contained in the Prospectus Supplement is not information
provided by the Underwriter, as described in clause (i) below (such
information, the "Seller Prospectus Information"). The Seller shall not be
liable to the Underwriter and the Depositor for Seller Prospectus Information
with respect to any untrue statement or alleged untrue statement or omission
or alleged omission contained in any Seller Prospectus Information, if such
Seller Prospectus Information was corrected subsequently and provided to the
Underwriter and the Depositor by the Seller prior to the date of the
Prospectus Supplement. The only information furnished by the Seller is the
Seller-Prospectus Information and the Seller Provided-Information (as defined
in Section 8(h) below).
(d) Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not
18
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except to
the extent provided in the next following paragraph, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the
Underwriter, if the indemnified parties under this Section 8 consist of the
Underwriter or any of its controlling persons, or the Depositor, if the
indemnified parties under this Section 8 consist of the Depositor or any of
the Depositor's directors, officers or controlling persons, or the Seller, if
the indemnified parties under this Section 8 consist of the Seller or any of
the Seller's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a), (b) and (c), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than thirty (30)
19
days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
(e) The Underwriter agrees to provide the Depositor, with a copy to the
Seller, for filing with the Commission on an Additional Materials 8-K (i) no
later than two (2) Business Days prior to the day on which the Prospectus
Supplement is required to be filed pursuant to Rule 424 with a copy of any
Computational Materials and Structural Term Sheets (each as defined in Section
5(e) hereof) distributed by the Underwriter and (ii) no later than one (1)
business day after first use with a copy of any Collateral Term Sheets (as
defined in Section 5(e) hereof) distributed by the Underwriter. If the
Underwriter does not provide any Computational Materials, Structural Term
Sheets and Collateral Term Sheets to the Depositor and the Seller pursuant to
this Section, the Underwriter shall be deemed to have represented, as of the
Closing Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering of
the Underwritten Securities that is required to be filed with the Commission
in accordance with the ▇▇▇▇▇▇ Letters and the PSA Letter.
(f) The Underwriter agrees, assuming all Seller-Provided Information (as
defined in Section 8(h)) is accurate and complete in all material respects, to
indemnify and hold harmless the Depositor, the Seller, each of the their
respective officers and directors and each person who controls the Depositor
or the Seller within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, or any action in respect thereof, to which they
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Computational Materials,
Structural Term Sheets and Collateral Term Sheets provided by the Underwriter
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred. The obligations of
the Underwriter under this Section 8(f) shall be in addition to any liability
which the Underwriter may otherwise have. The procedures set forth in Section
8(d) shall be equally applicable to this Section 8(f).
(g) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Sections 8(a), (b), (c) or (f) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor, the Seller and the Underwriter from the offering of
the Underwritten Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party failed to
give the notice required under Section 8(d), in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Depositor, the Seller and the
Underwriter with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations.
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The relative benefits of the Underwriter, the Seller and the Depositor
shall be deemed to be in such proportion as the total net proceeds from the
offering (before deducting expenses) received by the Depositor and the Seller
bear to the total underwriting discounts and commissions received by the
Underwriter from time to time in negotiated sales of the related Underwritten
Securities.
The relative fault of the Underwriter, the Seller and the Depositor shall
be determined by reference to whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Depositor, the Seller or by the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission
and other equitable considerations.
The Depositor, the Seller and the Underwriter agree that it would not be
just and equitable if contributions pursuant to this Section 8(g) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 8(g) shall be deemed to include, for purposes of this Section
8(g), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall the Underwriter be
responsible for any amount in excess of (x) the amount received by the
Underwriter in connection with its resale of the Underwritten Securities over
(y) the amount paid by the Underwriter to the Depositor for the Underwritten
Securities hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(h) For purposes of this Section 8 (except as otherwise provided) the
terms "Computational Materials", "Structural Term Sheets", "Collateral Term
Sheets" and "Derived Information" mean such portion, if any, of the
information delivered to the Depositor by the Underwriter pursuant to Section
8(c) for filing with the Commission on an Additional Materials 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through an Additional
Materials 8-K; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means the information and data set forth on any
computer tape (or other electronic or printed medium) furnished to the
Underwriter by or on behalf of the Seller concerning the assets comprising the
corpus of the Trust.
(i) Bear, ▇▇▇▇▇▇▇ & Co. Inc. confirms that the information set forth in [
] in the Prospectus Supplement, and the parties hereto acknowledge that such
information, constitutes the only information furnished in writing by or on
behalf of the Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus.
21
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or contained in certificates of officers of the
Depositor or the Seller submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriter or controlling persons thereof, or by or on behalf of the
Depositor or the Seller, as applicable and shall survive delivery of any
Underwritten Securities to the Underwriter.
SECTION 10. [RESERVED].
SECTION 11. Termination of this Underwriting Agreement. The Underwriter
may terminate this Underwriting Agreement immediately upon notice to the
Depositor, at any time at or prior to the Closing Date if any of the events or
conditions described in Section 6(v) of this Underwriting Agreement shall
occur and be continuing. In the event of any such termination, the covenant
set forth in Section 5(g), the provisions of Section 7, the indemnity
agreement set forth in Section 8, and the provisions of Sections 9 and 16
shall remain in effect.
SECTION 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Bear, ▇▇▇▇▇▇▇ & Co. Inc., shall be delivered or sent by mail,
telex or facsimile transmission to Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Asset Backed Securities Group
(Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to Bear ▇▇▇▇▇▇▇ Asset Backed Funding, Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Counsel (Fax:
▇▇▇-▇▇▇-▇▇▇▇); and
(c) if to the Seller, shall be delivered or sent by mail, telex or
facsimile transmission to [ ].
SECTION 13. Persons Entitled to the Benefit of this Underwriting
Agreement. This Underwriting Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Seller and the Depositor and their
respective successors. This Underwriting Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Underwriting Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and for
the benefit of directors of the Depositor, officers of the Depositor who have
signed the Registration Statement and any person controlling the Depositor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act. Nothing in this Underwriting Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect
of this Underwriting Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor, the Seller and the Underwriter
contained in this Underwriting Agreement, or made by or on behalf of them,
respectively, pursuant to this Underwriting
22
Agreement shall survive the delivery of and payment for the Underwritten
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling
any of them.
SECTION 15. Definition of the Term "Business Day". For purposes of this
Underwriting Agreement, "Business Day" means any day on which the New York
Stock Exchange is open for trading.
SECTION 16. Governing Law; Submission to Jurisdiction. THIS UNDERWRITING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS RULES
THEREOF THAT WOULD APPLY THE LAW OF ANOTHER JURISDICTION.
The parties hereto hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York and any court in the
State of New York located in the City and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it
or in connection with this Underwriting Agreement or any of the related
documents or the transactions contemplated hereunder or for recognition or
enforcement of any judgment, and the parties hereto hereby agree that all
claims in respect of any such action or proceeding may be heard or determined
in New York State court or, to the extent permitted by law, in such federal
court.
SECTION 17. Counterparts. This Underwriting Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Underwriting Agreement.
* * *
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If the foregoing correctly sets forth the agreement among the Depositor
and the Underwriter, please indicate your acceptance in the space provided for
the purpose below.
Very truly yours,
BEAR ▇▇▇▇▇▇▇ ASSET BACKED FUNDING INC.
By:
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
Name:
Title:
SCHEDULE A
Underwritten Securities
Class Principal Balance
------------------- ------------------------
A
B
A-1