New York, New York
November 3, 2006
Banc of America
Securities LLC
214 North Tryon Street
Charlotte, North Carolina 28255
BAS Securitization
LLC (the “ Company ”), proposes to sell to Banc
of America Securities LLC (the “Underwriter”) in the
principal amount of the Banc of America Securities Auto Trust
2006-G1, Asset-Backed Notes, Series 2006-G1, identified in
Schedule I hereto (the “ Notes ”),
to be issued under an indenture, to be dated as of
November 14, 2006 (the “ Indenture ”),
between Banc of America Securities Auto Trust 2006-G1 (the “
Issuer ”) and U.S. Bank National Association, as
indenture trustee (the “ Indenture Trustee
”).
Each class of
Notes listed in Schedule I hereto will represent an
obligation of the Issuer. The assets of the Issuer will include,
among other things, (i) the Receivables acquired by the Issuer
under the Sale Agreement, dated as of the Closing Date, between the
Issuer and the Company (the “ Sale Agreement ”)
and all monies received thereon, on and after the Cut-Off Date,
(ii) the Receivable Files, (iii) security interests in
the Financed Vehicles, (iv) rights under certain agreements,
(v) the Trust Accounts and any other account or accounts
established pursuant to the Indenture and (vi) all proceeds of
the foregoing.
The Receivables
and related property will be conveyed to the Company by BANA
pursuant to the Purchase Agreement, dated as of the Closing Date,
between the Company and BANA (the “ Purchase Agreement
”) and will be conveyed to the Issuer by the Company pursuant
to the Sale Agreement.
The Receivables
and related property were conveyed to BANA by Capital Auto
Receivables LLC, a Delaware limited liability company formerly
known as Capital Auto Receivables Inc. (“ CARI
”) pursuant to the Purchase and Sale Agreement, dated as of
September 21, 2006, between BANA and CARI (the “ CARI
Purchase Agreement ”). CARI acquired the Receivables and
related property from GMAC LLC, a Delaware limited liability
company, (“ GMAC ”), pursuant to a Sale
Agreement, dated as of September 21, 2006, between CARI and
GMAC (the “ GMAC Purchase Agreement
”).
This Underwriting
Agreement shall hereinafter be referred to as this “
Agreement .” This Agreement, the Indenture, the
Purchase Agreement, the Sale Agreement, the Trust Agreement, the
Receivables Servicing Agreement and the Master Servicing Agreement
are collectively hereinafter referred to as the “ Basic
Documents .” Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed
thereto in Appendix A to the Sale Agreement.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, the Underwriter that:
(a) The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “Act”) and has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 130613), which has become effective, for the registration
under the Act of the Notes. Such registration statement, as amended
to the date of this Agreement, meets the requirements set forth in
Rule 415(a) under the Act and complies in all other material
respects with Rule 415(a). The Company proposes to file with
the Commission pursuant to Rule 424 under the Act a supplement
to the form of prospectus included in such registration statement
relating to the Notes and the plan of distribution thereof and has
previously advised you of all further information (financial and
other) with respect to the Company 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 ”; the prospectus first
required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the Act is hereinafter
called the “ Basic Prospectus ”; and such
supplement to the Basic Prospectus, in the form required to be
filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) under the Act, is hereinafter called the
“ Prospectus Supplement ” and, collectively with
the Basic Prospectus, the “ Final Prospectus .”
Any reference herein to the Registration Statement, the Basic
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus or the Final
Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) At
or prior to the time when sales to investors of the Notes were
first made (the “ Time of Sale ”), the Company
had prepared the information (collectively, the “ Time of
Sale Information ”) listed in Schedule II hereto.
If, subsequent to the date of this Agreement, the Company or any
Underwriter has determined that such information included an untrue
statement of material fact or omitted 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 and
have terminated their old purchase contracts and entered into new
purchase contracts with purchasers of the Notes, then “
Time of Sale Information ” will refer to the
information available to purchasers at the time of entry into the
first such new purchase contract, including any information that
corrects such material misstatements or omissions (“
Corrective Information ”) and “Time of
Sale” will refer to the time and date on which such new
purchase contracts were entered into.
(c) 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), 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
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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 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 light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes 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 Company by or on behalf of
the Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Final
Prospectus.
(d) The
Time of Sale Information, at the Time of Sale did not, and at the
Closing Date 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 the
Company makes no representation and warranty with respect to the
information contained in or omitted from the Time of Sale
Information or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriter
specifically for use in connection with the preparation of the Time
of Sale Information.
(e) The
Company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware and has limited liability company 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 and the other Basic Documents.
(f) The
Company is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the
Preliminary Prospectus or for any additional information, (ii) 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 or (iii) 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.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company, and the other Basic Documents, when delivered by the
Company, will have been duly authorized, executed and delivered by
the Company, and will constitute a legal, valid and binding
agreement of the Company, enforceable against the 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 except as
rights to indemnity and
3
contribution
hereunder may be limited by federal or state securities laws or
principles of public policy.
(h) The
Company is not, and on the date on which the first bona fide offer
of the Notes is made will not be, an “ineligible
issuer,” as defined in Rule 405 under the
Act.
(i) The
Notes conform to the description thereof contained in the
Registration Statement and the Final Prospectus; and the Notes, on
the Closing Date, will have been duly and validly authorized and,
when such Notes are duly and validly executed, issued and delivered
in accordance with the Indenture, and sold to the Underwriters as
provided herein, will be validly issued and outstanding and
entitled to the benefits of the Indenture.
(j) As
of the Closing Date, the representations and warranties (other than
the representations and warranties concerning the characteristics
of the Receivables which representations and warranties will be
true and correct in all material respects as of the date set forth
in the applicable Basic Document) of the Company and the Issuer, as
applicable, in each Basic Document to which it is a party will be
true and correct.
(k) Neither
the execution and delivery by the Company of this Agreement or any
other of the Basic Documents nor the consummation by the Company of
the transactions contemplated herein or therein, nor the issuance
of the Notes or the public offering thereof as contemplated in the
Final Prospectus or the Time of Sale Information will conflict in
any material respect with or result in a material breach of, or
constitute a material default (with notice or passage of time or
both) under, or result in the imposition of any lien, pledge,
charge, of the property or assets of the Company (except as
required or permitted pursuant thereto or hereto), pursuant to any
material mortgage, indenture, loan agreement, contract or other
instrument to which the Company is party or by which it is bound,
nor will such action result in any violation of any provisions of
any applicable law, administrative regulation or administrative or
court decree, the certificate of formation or limited liability
company agreement of the Company. The Company is not in violation
of its certificate of formation or limited liability company
agreement, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease, trust agreement, transfer and servicing
agreement or other instrument to which a party or by which it may
be bound, or to which any material portion of its property or
assets is subject.
(l) No
legal or governmental proceedings are pending to which the Company
is a party or of which any property of the Company is subject,
which if determined adversely to the Company would, individually or
in the aggregate, have a material adverse effect on the financial
position, stockholders’ or results of operations of the
Company; and to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(m) Since
the date of which information is given in the Registration
Statement, there has not been any material adverse change in the
business or net worth of the Company.
4
(n) Any
taxes, fees and other governmental charges in connection with the
execution and delivery of the Basic Documents and the execution,
delivery and sale of the Notes have been or will be paid at or
prior to the Closing Date.
(o) No
consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or
body is required, or will be required, in connection with
(i) the execution and delivery by the Company of any Basic
Document or the performance by the Company of any or (ii) the
offer, sale or delivery of the Notes except such as shall have been
obtained or made, as the case may be, or will be obtained or made,
as the case may be, prior to the Closing Date, or will not
materially adversely affect the ability of the Company to perform
its obligations under any Basic Document.
(p) The
Company possesses, and will possess, 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
Final Prospectus and the Time of Sale Information, except to the
extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on
the Notes or the financial condition of the Company, and the
Company has not received, nor will have received as of each Closing
Date, any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect
the conduct of its business, operations or financial
condition.
(q) On
the Closing Date, (i) the Company will have good and
marketable title to the related Receivables being transferred by it
to the Issuer pursuant thereto, free and clear of any lien, except
to the extent permitted in the Basic Documents, (ii) the
Company will not have assigned to any person any of its right,
title or interest in such Receivables or in the Basic Documents,
and (iii) the Company will have the power and authority to
sell such Receivables to the Issuer, and upon execution and
delivery of the Sale Agreement by the Seller and the Issuer, the
Issuer will have good and marketable title thereto, in each case
free of liens other than any lien created by the
Underwriters.
(r) The
properties and businesses of the Company conform, and will conform,
in all material respects, to the descriptions thereof contained in
the Final Prospectus and the Time of Sale Information.
(s) The
Issuer is not required to be registered under the Investment
Company Act of 1940, as amended.
(t) Other
than the Final Prospectus, the Company (including its agents and
representatives other than the Underwriter) has not made, used,
prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Notes other than (i) information included in the Time
of Sale Information, (ii) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act or
Rule 134 under the Act or (iii) other written
communication approved in writing in advance by the
Underwriter.
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(u) Any
Issuer Free Writing Prospectus (as defined in
Section 11(e)(i)) included in the Time of Sale Information
complied in all material respects with the Act and has been, or
will be filed in accordance with Rule 433 under the Act (to
the extent required thereby).
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the
Notes.
3.
Delivery and Payment . Delivery of and payment for the Notes
shall be made at the office, on the date and at the time specified
in Schedule I hereto, which date and time may be
postponed by agreement between the Underwriter and the Company
(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 Underwriter for its account against
payment by the Underwriter of the purchase price thereof. If
Schedule I indicates that the Notes are to be issued in
book-entry form, delivery of the Notes shall be made through the
facilities of the depository or depositories set forth on
Schedule I . Alternatively, certificates for the Notes
shall be registered in such names and in such denominations as the
Underwriter may request not less than three full business days in
advance of the Closing Date.
The Company agrees
to have the Notes available for inspection, checking and packaging
by the Underwriter in New York, New York, not later than 1:00 p.m.,
New York City time, on the business day prior to the Closing
Date.
4.
Offering by the Underwriters .
(a) It
is understood that the Underwriter proposes to offer the Notes for
sale to the public (which may include selected dealers) on the
terms as set forth in the Final Prospectus.
(b) The
Underwriter represents and warrants to, and agrees with, the
Company, that:
(i)
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
“Relevant Member State”), it has not made and will not
make an offer of Notes to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Notes
which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the
relevant implementation date, make an offer of Notes to the public
in that Relevant Member State at any time:
a) to legal
entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
b) to any legal
entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance
sheet of
6
more than
(euro) 43,000,000 and (3) an annual net turnover of more
than (euro) 50,000,000, as shown in its last annual or
consolidated accounts; or
c) in any other
circumstances which do not required the publication by the issuer
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes
of this representation, the expression an “offer of Notes to
the public” in relation to any Notes in any Relevant Member
State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Notes to
be offered so as to enable an investor to decide to purchase or to
subscribe the Notes, as the same may be varied in that Member State
by any measure implementing the Prospectus Directive in that Member
State and the expression “Prospectus Directive” means
the European Commission Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member
State.
(ii)
It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and
Markets Act 2000 (the “FSMA”)) received by it in
connection with the issue or sale of the Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the
issuer.
(iii)
It has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United
Kingdom.
5.
Agreements . The Company agrees with the Underwriters
that:
(a) Prior
to the termination of the offering of the Notes, the Company will
not file any amendment of the Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus unless the
Company has furnished to the Underwriter a copy for its review
prior to filing and will not file any such proposed amendment or
supplement to which the Underwriter reasonably objects. Subject to
the foregoing sentence, the Company will cause the Final Prospectus
to be filed with the Commission pursuant to Rule 424. The
Company will advise the Underwriter 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 the 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. The 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
7
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 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, the 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) The
Company will furnish to the Underwriter and counsel for the
Underwriter, 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 the Underwriter or dealer
may be required by the Act, as many copies of the Final Prospectus
and any amendments thereof and supplements thereto as the
Underwriter may reasonably request. The 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, if required, will be borne by the
Underwriter.
(d) The
Company will furnish such information as may be required and
otherwise cooperate in qualifying the Notes for sale under the laws
of such jurisdictions as the Underwriter may reasonably designate
and to maintain such qualifications in effect so long as required
for the distribution of the Notes; provided , however
, that the 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.
(e) The
Company will pay all expenses (other than fees of counsel for the
Underwriter, except as provided herein) incident to the performance
of the obligations under this Agreement.
6.
Conditions Precedent to the Obligations of the Underwriters
. The obligation of the Underwriter to purchase the Notes shall be
subject to the accuracy of the representations and warranties on
the part of the 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 the
Company made in any certificates delivered pursuant to the
provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) The
Underwriter shall have received from Deloitte & Touche LLP a
letter, dated the date hereof, confirming that they are independent
public accountants within the meaning of the Act and the
regulat
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