Exhibit 1.1
EXECUTION COPY
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2002-B
Class A-1 1.90790% Asset Backed Notes
Class A-2 2.71% Asset Backed Notes
Class A-3 3.78% Asset Backed Notes
Class A-4 4.46% Asset Backed Notes
UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
As Representative of the Underwriters
World Financial Center, North Tower
New York, New York 10281-1310
May 30, 2002
Ladies and Gentlemen:
AmeriCredit Financial Services, Inc., a corporation organized and
existing under the laws of Delaware (the "Sponsor"), and AFS Funding Corp., a
corporation organized and existing under the laws of Nevada (the "Seller") (the
Sponsor and the Seller, collectively, the "Companies"), agree with you as
follows:
Section 1. Issuance and Sale of Notes. The Sponsor has authorized the
issuance and sale of $205,000,000 Class A-1 1.90790% Asset Backed Notes,
$318,000,000 Class A-2 2.71000% Asset Backed Notes, $325,000,000 Class A-3
3.78000% Asset Backed Notes and $257,000,000 Class A-4 4.46000% Asset Backed
Notes (collectively, the "Underwritten Notes"). Additionally, the Sponsor has
authorized the issuance and sale of $35,000,000 aggregate principal amount of
2.71% 2002-B Class A-2 Notes and $60,000,000 aggregate principal amount of 4.46%
2002-B Class A-4 Notes (the "Note Purchase Agreement Notes") that will be sold
directly to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA pursuant to a Note Purchase Agreement dated
as of May 30, 2002 (the Note Purchase Agreement Notes together with the
Underwritten Notes, the "Notes"). The Notes are to be issued by AmeriCredit
Automobile Receivables Trust 2002-B (the "Trust") pursuant to an Indenture, to
be dated as of June 4, 2002 (the "Indenture"), between the Trust and JPMorgan
Chase Bank ("JPMorgan Chase"), a New York banking corporation, as indenture
trustee (the "Trustee") and as Trust Collateral Agent. In addition to the Notes,
the Trust will also issue an Asset Backed Certificate representing the
beneficial ownership interests in the Trust (the "Certificate") (the Notes and
the Certificate, collectively, the "Securities") pursuant to a Trust Agreement,
dated as of May 7, 2002, as amended and restated as of June 4, 2002, between the
Seller and Deutsche Bank Trust Company Delaware, as owner trustee (the "Owner
Trustee"). The assets of the Trust will initially include a pool of retail
installment sale contracts secured by
new or used automobiles, light duty trucks and vans (the "Initial Receivables")
and certain monies due thereunder on or after June 4, 2002 (the "Initial Cutoff
Date"). Additional retail installment sale contracts secured by new or used
automobiles, light duty trucks and vans (the "Subsequent Receivables") and
certain monies due thereunder on or after the applicable Subsequent Cutoff Date
are intended to be purchased by the Trust from the Seller from time to time on
or before the end of the Funding Period, from funds available under the
Pre-Funded Amount. The Initial Receivables and the Subsequent Receivables are
hereinafter referred to as the "Receivables."
The Notes will have the benefit of a note insurance policy (the "Note
Insurance Policy"), issued by Financial Security Assurance Inc., a monoline
insurance corporation organized under the laws of New York (the "Note Insurer").
In connection with the issuance of the Note Insurance Policy (i) the
Companies, the Trust and the Note Insurer will execute and deliver an Insurance
Agreement dated as of June 4, 2002 (the "Insurance Agreement") and (ii) the
Seller, the Representative (as defined below) and the Note Insurer will execute
and deliver an Indemnification Agreement dated as of June 4, 2002 (the
"Indemnification Agreement").
As used herein, the term "Sponsor Agreements" means the Sale and
Servicing Agreement dated as of June 4, 2002 among the Trust, the Sponsor, as
servicer, the Seller and JPMorgan Chase, as trust collateral agent (the "Sale
and Servicing Agreement"), the Purchase Agreement between the Sponsor and the
Seller dated as of June 4, 2002 (the "Purchase Agreement"), the Insurance
Agreement, the Indemnification Agreement and this Agreement; the term "Seller
Agreements" means the Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, the Insurance Agreement, the Indemnification Agreement and this
Agreement.
The Underwritten Notes are being purchased by the Underwriters named
in Schedule 1 hereto, and the Underwriters are purchasing, severally, only the
Underwritten Notes set forth opposite their names in Schedule 1, except that the
amounts purchased by the Underwriters may change in accordance with Section 10
of this Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated is acting
as representative of the Underwriters and in such capacity, is hereinafter
referred to as the "Representative."
The offering of the Underwritten Notes will be made by the
Underwriters and the Companies understand that the Underwriters propose to make
a public offering of the Underwritten Notes for settlement on June 12, 2002 as
the Underwriters deem advisable.
The Certificate will be retained by the Seller.
Defined terms used herein shall have their respective meanings as set
forth in the Sale and Servicing Agreement.
Section 2. Representations and Warranties. A. The Sponsor represents,
warrants and agrees with the Underwriters, that:
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(i) A Registration Statement on Form S-3 (No. 333-73606) has (a) been
prepared by the Sponsor on such Form 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, (b) been filed with the
Commission and (c) been declared effective by the Commission, and no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceeding for that purpose has been initiated or threatened, by the
Commission. Copies of such Registration Statement have been delivered by the
Sponsor to the Underwriters. There are no contracts or documents of the Sponsor
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement. The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the date on and time
at which the Registration Statement became effective, or the date on and the
time at which the most recent post-effective amendment to such Registration
Statement, if any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement referred to in the
preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Notes. The term "Base Prospectus" means the prospectus included
in the Registration Statement. The term "Prospectus Supplement" means the
prospectus supplement dated the date hereof, specifically relating to the Notes,
as filed with the Commission pursuant to Rule 424 of the Rules and Regulations
(the "Prospectus Supplement"). The term "Company Offering Materials" means,
collectively, the Registration Statement, the Base Prospectus and the Prospectus
Supplement, each as it may be amended and supplemented from time to time within
the period ending ninety (90) days after the date of this Underwriting
Agreement, except for (x) the information set forth under the caption "The
Insurer" and (y) the Underwriter Information. The term "Underwriter Information"
means (i) on the cover page of the Prospectus Supplement, the information in the
bottom table under the categories entitled "Price to Public," "Underwriting
Discounts" and "Proceeds to Seller" and (ii) in the body of the Prospectus
Supplement and within the "Underwriting" section, the second, fourth and final
(i.e., seventh) paragraphs immediately following the Class A-4 Notes Underwriter
commitment table. The term "Prospectus" means, together, the Base Prospectus and
the Prospectus Supplement.
To the extent that the Underwriter either (i) has provided to the
Sponsor Collateral term sheets (as hereinafter defined) that such Underwriter
has provided to a prospective investor, the Sponsor has filed such Collateral
term sheets as an exhibit to a report on Form 8-K within two business days of
its receipt thereof, or (ii) has provided to the Sponsor Structural term sheets
or Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Sponsor will file or cause to be filed
with the Commission a report on Form 8-K containing such Structural term sheet
and Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Underwriter in final form.
(ii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they
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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. The Company Offering Materials do not and will not, as of the
Effective Date or filing date thereof and of any amendment thereto, as
appropriate, 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.
(iii) The documents incorporated by reference in the Company Offering
Materials, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Securities Exchange
Act of 1934, as amended (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; any further documents so filed and incorporated by reference in the
Company Offering Materials, when such documents are filed with the Commission
will conform in all material respects to the requirements of the Exchange Act
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.
(iv) Since the respective dates as of which information is given in
the Company Offering Materials, or the Company Offering Materials as amended and
supplemented, (x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Sponsor and (y) the Sponsor has not entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Sponsor
that, in either case, would reasonably be expected to materially adversely
affect the interests of the holders of the Notes, otherwise than as set forth or
contemplated in the Company Offering Materials, as so amended or supplemented.
(v) The Sponsor is not aware of (x) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus or for
any additional information, (y) 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 (z) any notification with
respect to the suspension of the qualification of the Notes for the sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(vi) The Sponsor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, 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, except
where the failure to be so qualified would not have a material adverse effect on
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Sponsor and has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and perform its
obligations under each Sponsor Agreement and to cause the Securities to be
issued.
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(vii) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal to
which the Sponsor is a party or of which any of its properties is the subject
(i) which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the general affairs, business,
management, financial condition, stockholders' equity, results of operations,
regulatory situation or business prospects of the Sponsor, (ii) asserting the
invalidity of any Sponsor Agreement, in whole or in part or the Securities,
(iii) seeking to prevent the issuance of the Securities or the consummation by
the Companies of any of the transactions contemplated by any Sponsor Agreement,
in whole or in part, or (iv) which if determined adversely is likely to
materially and adversely affect the performance by the Sponsor of its
obligations under, or the validity or enforceability of, any Sponsor Agreement,
in whole or in part or the Securities.
(viii) Each Sponsor Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Sponsor and each Sponsor Agreement constitutes, a valid and binding agreement of
the Sponsor, enforceable against the Sponsor in accordance with its respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of the Securities, and the execution,
delivery and performance of each Sponsor Agreement and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict with
or result in a breach of or violate any term or provision of or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Sponsor is a party, by which the Sponsor
may be bound or to which any of the property or assets of the Sponsor or any of
its subsidiaries may be subject, nor will such actions result in any violation
of the provisions of the articles of incorporation or by-laws of the Sponsor or
any law, statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Sponsor or any of its respective
properties or assets.
(x) PricewaterhouseCoopers LLP is an independent public accountant
with respect to the Sponsor as required by the Securities Act and the Rules and
Regulations.
(xi) No consent, approval, authorization, order, registration or
qualification of or with any federal or state court or governmental agency or
body of the United States is required for the issuance and sale of the Notes, or
the consummation by the Sponsor of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the Securities
and such consents, approvals, authorizations, registrations or qualifications as
may have been obtained or effected or as may be required under securities or
Blue Sky laws in connection with the purchase and distribution of the
Underwritten Notes by the Underwriters.
(xii) The Sponsor 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 Company Offering Materials
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(or is exempt therefrom) and the Sponsor has not received notice of any
proceedings relating to the revocation or modification of such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, is likely to materially
and adversely affect the conduct of its business, operations, financial
condition or income.
(xiii) The Sponsor will not conduct its operations while any of the
Securities are outstanding in a manner that would require the Sponsor or the
Trust to be registered as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act"), as in effect on the date hereof.
(xiv) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of any Sponsor Agreement the Note
Insurance Policy and the Securities that are required to be paid by the Sponsor
at or prior to the Closing Date have been paid or will be paid at or prior to
the Closing Date.
(xv) At the Closing Date, each of the representations and warranties
of the Sponsor set forth in any Sponsor Agreement will be true and correct in
all material respects.
(xvi) Any certificate signed by an officer of the Sponsor and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2A are made.
B. The Seller represents, warrants and agrees with the
Underwriters, that:
(i) The Company Offering Materials do not and will not, as of the
applicable filing date therefor and any amendment or supplement thereto, contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading.
(ii) The documents incorporated by reference in the Company Offering
Materials, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Exchange Act 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; any further documents so filed and incorporated by reference in
the Company Offering Materials, when such documents are filed with the
Commission will conform in all material respects to the requirements of the
Exchange Act 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.
(iii) Since the respective dates as of which information is given in
the Company Offering Materials, (x) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory situation or business
prospects of the Seller and (y) the Seller has not entered into any transaction
or agreement (whether or not in the ordinary course of business) material to the
Seller that, in
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either case, would reasonably be expected to materially adversely affect the
interests of the holders of the Securities, otherwise than as set forth or
contemplated in the Company Offering Materials, as so amended or supplemented.
(iv) The Seller is not aware of (x) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus or for
any additional information, (y) 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 (z) any notification with
respect to the suspension of the qualification of the Notes for the sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(v) The Seller has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, 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, except
where the failure to be so qualified would not have a material adverse effect on
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Seller and has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and perform its
obligations under each Seller Agreement.
(vi) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal to
which the Seller is a party or of which any of its properties is the subject (i)
which if determined adversely to it is likely to have a material adverse effect
individually, or in the aggregate, on the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
situation or business prospects of the Seller, (ii) asserting the invalidity of
any Seller Agreement in whole or in part, (iii) seeking to prevent the issuance
of the Securities or the consummation by the Seller of any of the transactions
contemplated by any Seller Agreement in whole or in part, or (iv) which if
determined adversely is likely to materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, any Seller Agreement in whole or in part or the Securities.
(vii) Each Seller Agreement has been, or, when executed and delivered
will have been, duly authorized, validly executed and delivered by the Seller
and each Seller Agreement constitutes, a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(viii) The execution, delivery and performance of each Seller
Agreement by the Seller and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or result in a breach of
or violate any term or provision of or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
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instrument to which the Seller is a party, by which the Seller may be bound or
to which any of the property or assets of the Seller or any of its subsidiaries
may be subject, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of its respective properties or assets.
(ix) PricewaterhouseCoopers LLP is an independent public accountant
with respect to the Seller as required by the Securities Act and the Rules and
Regulations.
(x) 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 and sale of the Notes, or the consummation
by the Seller of the transactions contemplated by each Seller Agreement except
the registration under the Securities Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may have been
obtained or effected or as may be required under securities or Blue Sky laws in
connection with the purchase and distribution of the Underwritten Notes by the
Underwriters.
(xi) 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 Company Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating to
the revocation or modification of such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
(xii) The Seller will have the power and authority to sell the
Receivables to the Trust. Following the conveyance of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement, the Trust will own the
Receivables free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively, "Liens") other than
Liens created by the Sale and Servicing Agreement.
(xiii) As of the Initial Cutoff Date each of the Initial Receivables
will meet the eligibility criteria described in the Prospectus and as of the
applicable Subsequent Cutoff Date each of the related Subsequent Receivables
will meet the eligibility criteria described in the Prospectus.
(xiv) Neither the Seller nor the Trust created by the Trust Agreement
will conduct their operations while any of the Securities are outstanding in a
manner that would require the Seller or the Trust to be registered as an
"investment company" under the 1940 Act, as in effect on the date hereof.
(xv) Each of the Securities, the Sale and Servicing Agreement, the
Purchase Agreement, the Trust Agreement, the Indemnification Agreement and the
Note Insurance Policy conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of any Seller Agreement, the Note
Insurance Policy and the
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Securities that are required to be paid by either the Seller at or prior
to the Closing Date have been paid or will be paid at or prior to the Closing
Date.
(xvii) At the Closing Date, each of the representations and
warranties of the Seller set forth in any Seller Agreement will be true and
correct in all material respects.
(xviii) The direction by the Seller to the Owner Trustee to execute,
authenticate, issue and deliver the Certificate will be duly authorized by the
Seller and, assuming the Owner Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Owner Trustee in accordance
with the Trust Agreement, the Certificate will be validly issued and outstanding
and will be entitled to the benefits of the Trust Agreement.
Any certificate signed by an officer of the Seller and delivered to
the Representative or the Representative's counsel in connection with an
offering of the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2B are made.
Section 3. Purchase and Sale. The Underwriters' commitment to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein set forth. The
Sponsor agrees to instruct the Trust to issue the Underwritten Notes to the
Underwriters, and the Underwriters agree to purchase on the date of issuance
thereof. The purchase prices for the Underwritten Notes shall be as set forth on
Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for,
and delivery of, any Underwritten Notes to be purchased by the Underwriters
shall be made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as shall be agreed upon by
the Representative and the Companies, at 10:00 a.m. New York City time on June
12, 2002 (the "Closing Date"), or at such other time or date as shall be agreed
upon in writing by the Representative and the Companies. Payment shall be made
by wire transfer of same day funds payable to the account designated by the
Sponsor. Each of the Underwritten Notes so to be delivered shall be represented
by one or more global certificates registered in the name of Cede & Co., as
nominee for The Depository Trust Company.
The Companies agree to have the Underwritten Notes available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 12:00 P.M. New York City time on the business day prior to the
Closing Date.
Section 5. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Notes for sale to the public as
set forth in the Prospectus.
Section 6. Covenants of the Companies. Each of the Companies
covenants with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by the
Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence
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satisfactory to the Underwriters of such timely filing; to cause to be made no
further amendment or any supplement to the Registration Statement or to the
Prospectus prior to the 91/st/ day following the Closing Date except as
permitted herein; to give notice to the Underwriters of the filing of any
amendment to the Registration Statement which is filed or becomes effective
prior to the 91/st/ day following the Closing Date or any supplement to the
Prospectus or any amended Prospectus which is filed prior to the 91/st/ day
following the Closing Date and to furnish the Underwriters with copies thereof;
to file promptly all reports and any global proxy or information statements
required to be filed by the Sponsor 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, until the 91st day following the Closing Date; to promptly
advise the Underwriters 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 Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat of any
proceeding for any such purpose; (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 Sponsor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters 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 Underwriters such number of the
following documents as the Underwriters 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 Notes 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 Sponsor shall notify the Underwriters
and, upon the Underwriters' request based upon the advice of counsel, shall file
such document and prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such compliance.
D. To cause to be filed promptly with the Commission, subject to
Section 6E, any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the Seller or the
Underwriters, be required by the Securities Act or requested by the Commission.
Neither the Underwriters' consent to nor their
10
delivery of any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 7 hereof.
E. To cause to be furnished to the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the consent of
the Underwriters, which consent will not unreasonably be withheld, for the
filing of the following documents relating to the Notes: (i) any amendment to
the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) the Prospectus filed
pursuant to Rule 424 of the Rules and Regulations.
F. To use its best efforts, in cooperating with the Sponsor and the
Underwriters, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Underwriters 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 Notes. The Seller will cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been so
qualified.
G. The Seller will not, without the prior written consent of the
Representative, contract to sell any automobile receivables-backed certificates,
automobile receivables-backed notes or other similar securities either directly
or indirectly (as through the Sponsor) for a period of five (5) business days
after the later of the termination of the syndicate or the Closing Date.
H. So long as the Notes shall be outstanding, the Seller shall
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as to compliance of the Servicer delivered to
the Trustee pursuant to Section 4.10(a) of the Sale and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 4.11 of the Sale and Servicing Agreement with
respect to the Servicer; and (iii) the monthly reports furnished to the
Noteholders pursuant to Section 5.10 of the Sale and Servicing Agreement.
I. So long as any of the Notes are outstanding, the Seller will
furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year of the Trust, all documents required to be distributed to
Noteholders and other filings with the Commission pursuant to the Exchange Act,
or any order of the Commission thereunder with respect to any securities issued
by the Sponsor or the Seller that are (A) non-structured equity or debt offering
of the Sponsor or the Seller or (B) the Notes and (ii) from time to time, any
other information concerning the Sponsor or the Seller filed with any government
or regulatory authority which is otherwise publicly available, as the
Underwriters shall reasonably request in writing.
J. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
K. If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the knowledge of
the Seller, there shall have been any material change, or any development
involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of
11
operations of the Sponsor or the Seller, the Seller will give prompt written
notice thereof to the Underwriters.
L. To the extent, if any, that the ratings provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other actions
by the Sponsor or the Seller, the Seller shall use its best efforts to furnish
or cause to be furnished such documents and take any such other actions.
Section 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Notes pursuant to
this Agreement are subject to (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of the Companies herein
contained, (ii) the accuracy of the statements of officers of the Companies made
pursuant hereto, (iii) the performance by the Companies of all of their
respective obligations hereunder, and the performance by the Companies of all of
their respective obligations under the Sponsor Agreements and the Seller
Agreements and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with.
B. The Underwriters shall have received the Sale and Servicing
Agreement, the Purchase Agreement, the Indenture, the Trust Agreement, the
Indemnification Agreement and the Notes in form and substance satisfactory to
the Underwriters and duly executed by the signatories required pursuant to the
respective terms thereof.
C. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The issuance and sale of the Notes have been duly authorized
and, when executed, authenticated, countersigned and delivered by the
Trustee in accordance with the Indenture and delivered and paid for
pursuant to this Agreement, will be validly issued and outstanding and will
be entitled to the benefits of the Trust Agreement and the Indenture,
respectively.
(ii) No authorization, approval, consent or order of, or filing with,
any court or governmental agency or authority is necessary under the
federal law of the United States or the laws of the State of New York in
connection with the execution, delivery and performance by the Sponsor of
the Sponsor Agreements and by the Seller of the Seller Agreements, except
such as may be required under the Act or the Rules and Regulations and Blue
Sky or other state securities laws, filings with respect to the transfer of
the Receivables to the Trust pursuant to the Sale and Servicing Agreement
and such other approvals or consents as have been obtained.
(iii) Each Sponsor Agreement and each Seller Agreement constitutes the
legal, valid and binding obligation of the Sponsor or the Seller, as
appropriate, enforceable
12
against each of the Sponsor or the Seller, as appropriate, in accordance
with their respective terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally, (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity) and (C) the
enforceability as to rights to indemnification may be subject to
limitations of public policy under applicable laws.
(iv) None of the Sponsor, the Seller nor the Trust is required to be
registered as an "investment company" under the 1940 Act, as amended.
(v) The direction by the Seller to the Owner Trustee to execute,
issue, countersign and deliver the Certificate has been duly authorized
and, when the Certificate is executed and authenticated by the Trustee in
accordance with the Trust Agreement and delivered and paid for, they will
be validly issued and outstanding and entitled to the benefits provided by
the Trust Agreement.
(vi) The Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trustee as part
of the Trust Estate and has duly authorized such sale and assignment to the
Trustee by all necessary corporate action.
(vii) The Securities, the Sale and Servicing Agreement, the Purchase
Agreement and this Agreement each conform in all material respects with the
respective descriptions thereof contained in the Registration Statement and
the Prospectus.
(viii) The statements in the Base Prospectus under the captions
"Summary of Prospectus - Material Federal Income Tax Consequences", "ERISA
Considerations" and "Material Federal Income Tax Consequences" and the
statements in the Prospectus Supplement under the captions "Material
Federal Income Tax Consequences" and "ERISA Considerations", to the extent
that they constitute matters of law or legal conclusions with respect
thereto, have been reviewed by counsel and represent a fair and accurate
summary of the matters addressed therein, under existing law and the
assumptions stated therein.
(ix) The statements in the Base Prospectus under the caption
"Material Legal Aspects of the Automobile Loans" to the extent they
constitute matters of law or legal conclusions, are correct in all material
respects.
(x) The Registration Statement is effective under the Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued, and to the best of such counsel's knowledge no proceeding for
that purpose has been instituted or threatened by the Commission under the
Act.
(xi) The conditions to the use by the Sponsor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents which are required to be filed as exhibits to the
13
Registration Statement pursuant to the Securities Act or the Rules and
Regulations thereunder which have not been so filed.
(xii) The Registration Statement at the time it became effective, and
any amendments thereto at the time such amendment becomes effective (other
than the information set forth in the financial statements and other
financial and statistical information contained therein, as to which such
counsel need express no opinion), complied as to form in all material
respects with the applicable requirements of the Act and the Rules and
Regulations thereunder.
(xiii) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Sponsor or its
properties or assets.
(xiv) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Seller or its
properties or assets.
In addition, counsel shall state that such counsel has participated in
conferences with officers and other representatives of each of the Seller, the
Sponsor, the Servicer, the Note Insurer, the Trustee and the Underwriters at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and on the basis of the foregoing, no facts have come to
such counsel's attention that have led such counsel to believe the Registration
Statement, at the time it became effective and as of the date of such counsel's
opinion, contained or contains an untrue statement of a material fact or omitted
or omits 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 its
date and as of the date of such counsel's opinion, contained or contains an
untrue statement of material fact or omitted or omits to state a material fact
necessary to make the statements therein not misleading; it being understood
that such counsel need express no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
D. The Sponsor shall have delivered to the Underwriters a
certificate, dated the Closing Date, of an authorized officer of the Sponsor to
the effect that the signer of such certificate has carefully examined this
Agreement, each Sponsor Agreement and the Prospectus and that: (i) the
representations and warranties of the Sponsor in each Sponsor Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date, (ii) the Sponsor has complied in all
material respects with all the agreements and satisfied in all material respects
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to such officer's knowledge, threatened, (iv) there has been
no material adverse change in the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
situation or business prospects of the Sponsor, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus and (v) nothing has come to such officer's
attention that would lead such officer to
14
believe that the Company Offering Materials contain any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Sponsor shall attach to such certificate a true and correct copy
of its certificate of incorporation, as appropriate, and bylaws which are in
full force and effect on the date of such certificate and a certified true copy
of the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
E. The Underwriters shall have received from the Seller a
certificate dated the Closing Date, of an authorized officer of the Seller to
the effect that the signer of such certificate has carefully examined this
Agreement, each Seller Agreement and the Prospectus and that: (i) the
representations and warranties of the Seller in each Seller Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date, (ii) the Seller has complied in all
material respects with all the agreements and satisfied all the conditions on
its part to be performed or satisfied in all material respects at or prior to
the Closing Date, (iii) there has been no material adverse change in the general
affairs, business, management, financial condition, stockholders' equity,
results of operations, regulatory situation or business prospects of the Seller
whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Prospectus, and (iv) nothing has come
to such officers' attention that would lead such officer to believe that the
Company Offering Materials contain any untrue statement of a material fact or
omit to state any material facts required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
The Seller shall attach to such certificate a true and correct copy of
its certificate of incorporation, as appropriate, and bylaws which are in full
force and effect on the date of such certificate and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
F. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.,
corporate counsel of the Companies, a favorable opinion, dated the Closing Date
and satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware. The
Seller has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Nevada. Each of the Sponsor
and the Seller has full corporate power to own its property or assets and
to conduct its business as presently conducted by it and as described in
the Prospectus, and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property or assets requires
such qualification or where the failure to be so qualified would have a
material adverse effect on its general affairs, business, management,
financial condition, stockholders' equity, results of operations,
regulatory situation or business prospects.
15
(ii) Each Sponsor Agreement and each Seller Agreement has been duly
authorized, executed and delivered by authorized officers or signers of the
Sponsor or the Seller, as appropriate.
(iii) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the Notes has been duly authorized by the Seller.
(iv) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any Lien upon any
of the property or assets of the Sponsor pursuant to the terms of the
certificate of incorporation or the by-laws of the Sponsor or any statute,
rule, regulation or order of any governmental agency or body of the State
of Delaware, or any Delaware state court having jurisdiction over the
Sponsor or its property or assets or any material agreement or instrument
known to such counsel to which the Sponsor is a party or by which the
Sponsor or any of its property or assets is bound.
(v) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any Lien upon any
of the property or assets of the Seller pursuant to the terms of the
certificate of incorporation or the by-laws of the Seller or any statute,
rule, regulation or order of any governmental agency or body of the State
of Nevada, or any Nevada state court having jurisdiction over the Seller or
its property or assets or any material agreement or instrument known to
such counsel, to which the Seller is a party or by which the Seller or any
of its property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of
Delaware is necessary in connection with the execution, delivery and
performance by the Sponsor of any Sponsor Agreement except such as may be
required under the Securities Act or the Rules and Regulations and Blue Sky
or other state securities laws filings with respect to the transfer of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement and
such other approvals or consents as have been obtained.
(vii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of Nevada
is necessary in connection with the execution, delivery and performance by
the Seller of any Seller Agreement, except such as may be required under
the Act or the Rules and Regulations and Blue Sky or other state securities
laws, filings with respect to the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement and such other approvals or
consents as have been obtained.
(viii) There are no legal or governmental proceedings pending to which
the Sponsor or the Seller is a party or of which any property or assets of
the Sponsor or the Seller is the subject, and no such proceedings are to
the best of such counsel's knowledge threatened or contemplated by
governmental authorities against the Sponsor, the Seller or the Trust,
that, (A) are required to be disclosed in the Registration Statement or (B)
(i)
16
assert the invalidity against the Sponsor of all or any part of any Sponsor
Agreement or against the Seller of all or any part of any Seller Agreement,
(ii) seek to prevent the issuance of the Securities, (iii) could materially
adversely affect the Sponsor's or the Seller's obligations under any
Sponsor Agreement or any Seller Agreement, as appropriate, or (iv) seek to
affect adversely the federal or state income tax attributes of the
Securities.
G. The Underwriters shall have received from special counsel to the
Note Insurer, reasonably acceptable to the Underwriters, a favorable opinion
dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that:
(i) The Note Insurer is a stock insurance company licensed and
authorized to transact insurance business and to issue, deliver and perform
its obligations under its surety bonds under the laws of the State of New
York. The Note Insurer (a) is a stock insurance company validly existing
and in good standing under the laws of the State of New York, (b) has the
corporate power and authority to own its assets and to carry on the
business in which it is currently engaged, and (c) is duly qualified and in
good standing as a foreign corporation under the laws of each jurisdiction
where failure so to qualify or to be in good standing would have a material
and adverse effect on its business or operations.
(ii) No litigation or administrative proceedings of or before any
court, tribunal or governmental body are currently pending or, to the best
of such counsel's knowledge, threatened against the Note Insurer, which, if
adversely determined, would have a material and adverse effect on the
ability of the Note Insurer to perform its obligations under the Note
Insurance Policy.
(iii) The Note Insurance Policy and the Indemnification Agreement
constitute the irrevocable, valid, legal and binding obligations of the
Note Insurer in accordance with their respective terms to the extent
provided therein, enforceable against the Note Insurer in accordance with
their respective terms, except as the enforceability thereof and the
availability of particular remedies to enforce the respective terms thereof
against the Note Insurer may be limited by applicable laws affecting the
rights of creditors of the Note Insurer and by the application of general
principles of equity.
(iv) The Note Insurer, as an insurance company, is not eligible for
relief under the United States Bankruptcy Code. Any proceedings for the
liquidation, conservation or rehabilitation of the Note Insurer would be
governed by the provisions of the Insurance Law of the State of New York.
(v) The statements set forth in the Prospectus Supplement under the
captions "The Insurer" and "The Policy" are true and correct, except that
no opinion is expressed as to financial statements or other financial
information included in the Prospectus relating to the Note Insurer and,
insofar as such statements constitute a summary of the Note Insurance
Policy, accurately and fairly summarize the terms of the Note Insurance
Policy.
17
(vi) The Note Insurance Policy constitutes an insurance policy within
the meaning of Section 3(a)(8) of the Securities Act.
(vii) Neither the execution or delivery by the Note Insurer of the
Note Insurance Policy or the Indemnification Agreement, nor the performance
by the Note Insurer of its obligations thereunder, will conflict with any
provision of the certificate of incorporation or the amended by-laws of the
Note Insurer nor, to the best of such counsel's knowledge, result in a
breach of, or constitute a default under, any agreement or other instrument
to which the Note Insurer is a party or by which any of its property is
bound nor, to the best of such counsel's knowledge, violate any judgment,
order or decree applicable to the Note Insurer of any governmental
regulatory body, administrative agency, court or arbitrator located in any
jurisdiction in which the Note Insurer is licensed or authorized to do
business.
H. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Securities and such other related matters as
the Underwriters may require.
I. The Underwriters shall have received from counsel to the Trustee
and the Back-Up Servicer, a favorable opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State of
New York.
(ii) The Trustee and the Back-Up Servicer each have full corporate
trust power and authority to enter into and perform its obligations under
the Indenture, as the case may be, including, but not limited to, its
obligation to serve in the capacity of Trustee and to execute, issue,
countersign and deliver the Notes.
(iii) The Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legal, valid and binding obligation of the
Trustee enforceable against the Trustee, in accordance with its terms,
except that as to enforceability such enforcement may (A) be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and (B) be limited
by general principles of equity (whether considered in a proceeding at law
or in equity).
(iv) The Notes have been duly authorized, executed and authenticated
by the Trustee on the date hereof on behalf of the Trust in accordance with
the Indenture.
(v) The execution, delivery and performance of the Indenture and the
Notes by the Trustee will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Trustee pursuant to the terms of the articles of
association or the by-laws of the Trustee or any statute, rule, regulation
or order of any governmental agency or body, or any court having
jurisdiction over the Trustee or its property or assets or any agreement or
instrument known to such counsel,
18
to which the Trustee is a party or by which the Trustee or any of its
respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is necessary
in connection with the execution, delivery and performance by the Trustee
or the Back-Up Servicer of the Indenture and the Notes, as applicable.
J. The Underwriters shall have received from counsel to the Owner
Trustee a favorable opinion dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the effect
that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
United States of America.
(ii) The Owner Trustee has full corporate trust power and authority
to enter into and perform its obligations under the Trust Agreement, as the
case may be, including, but not limited to, its obligation to serve in the
capacity of Owner Trustee and to execute, issue, countersign and deliver
the Certificate.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes a legal, valid and binding
obligation of the Owner Trustee enforceable against the Owner Trustee, in
accordance with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(iv) The Certificate has been duly authorized, executed and
authenticated by the Owner Trustee on the date hereof on behalf of the
Trust in accordance with the Trust Agreement.
(v) The execution, delivery and performance of the Trust Agreement
and the Certificate by the Owner Trustee will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Owner Trustee
pursuant to the terms of the articles of association or the by-laws of the
Owner Trustee or any statute, rule, regulation or order of any governmental
agency or body, or any court having jurisdiction over the Owner Trustee or
its property or assets or any agreement or instrument known to such
counsel, to which the Owner Trustee is a party or by which the Owner
Trustee or any of its respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is necessary
in connection with the execution, delivery and performance by the Owner
Trustee of the Trust Agreement and the Certificate, as applicable.
19
K. JPMorgan Chase shall have furnished to the Underwriters a
certificate of JPMorgan Chase, signed by one or more duly authorized officers of
JPMorgan Chase, dated the Closing Date, as to the due authorization, execution
and delivery of the Indenture and the Sale and Servicing Agreement by JPMorgan
Chase and the acceptance by the Trustee of the trust created thereby and the due
execution and delivery of the Notes by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
L. Deutsche Bank Trust Company Delaware ("DBTC") shall have
furnished to the Underwriters a certificate of DBTC, signed by one or more duly
authorized officers of DBTC, dated the Closing Date, as to the due
authorization, execution and delivery of the Trust Agreement by DBTC and the
acceptance by the Owner Trustee of the trust created thereby and the due
execution and delivery of the Certificate by the Owner Trustee thereunder and
such other matters as the Underwriters shall reasonably request.
M. The Indemnification Agreement shall have been executed and
delivered, in which the Note Insurer shall represent, among other
representations, that (i) the information under the captions, "The Insurance
Policy" in the section entitled "Summary", "The Policy" and "The Insurer" in the
Prospectus Supplement was approved by the Note Insurer and does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) there has been no change in the
financial condition of the Note Insurer since March 31, 2002, which would have a
material adverse effect on the Note Insurer's ability to meet its obligations
under the Note Insurance Policy.
N. The Note Insurance Policy shall have been issued by the Note
Insurer and shall have been duly countersigned by an authorized agent of the
Note Insurer, if so required under applicable state law or regulation.
O. The Class A-1 Notes shall have been rated "A-1+" by Standard &
Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), "Prime-1" by
▇▇▇▇▇'▇ Investors Service ("▇▇▇▇▇'▇") and "F1+" by Fitch, Inc. ("Fitch"), and
the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have been
rated "AAA" by S&P," Aaa" by ▇▇▇▇▇'▇ and "AAA" by Fitch.
P. The Underwriters shall have received copies of letters dated as
of the Closing Date, from S&P, ▇▇▇▇▇'▇ and Fitch stating the current ratings of
the Notes as set forth in Section O above.
Q. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Notes.
R. All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and
20
counsel for the Underwriters shall have received such other information,
opinions, certificates and documents as they may reasonably request in writing.
S. The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the rules and regulations
under the Act and Section 2 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
T. On the Closing Date the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter dated as of the Closing Date, in the form
heretofore agreed to.
U. The Underwriters shall have received from local counsel, in the
states where there is a concentration of 10% or more of the Receivables, an
opinion dated the Closing Date as to the perfection of security interests in
automobiles in such states.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to both of the Companies 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 8 and (ii) the
provisions of Section 8, the indemnity set forth in Section 9, the contribution
provisions set forth in Section 9 and the provisions of Sections 12 and 15 shall
remain in effect.
Section 8. Payment of Expenses. The Seller agrees to pay the
following expenses incident to the performance of the Companies' obligations
under this Agreement, (i) the filing of the Registration Statement and all
amendments thereto, (ii) the duplication and delivery to the Underwriters, in
such quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the Notes, (iv) the
fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters and
special counsel to the Companies, (v) the fees and disbursements of
PricewaterhouseCoopers LLP, accountants of the Companies, (vi) the qualification
of the Notes under securities and Blue Sky laws and the determination of the
eligibility of the Notes for investment in accordance with the provisions
hereof, including filing fees and the fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, counsel to the Underwriters, in connection therewith and in connection with
the preparation of any Blue Sky survey, (vii) the printing and delivery to the
Underwriters in such quantities as the Underwriters may reasonably request, of
copies of the Registration Statement and Prospectus and all amendments and
supplements thereto, and of any Blue Sky survey, (viii) the duplication and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the other transaction documents, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Notes, (x) the fees and expenses of the Trustee and its counsel, (xi) the fees
and expenses of the Owner Trustee and its counsel and (xii) the fees and
expenses of the Note Insurer and its counsel.
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 7, the Companies shall reimburse the
Representative for all reasonable
21
third-party out-of-pocket expenses, including the reasonable fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, the Representative's counsel.
Section 9. Indemnification. A. The Sponsor agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriters within the meaning of the Securities Act or 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
Notes), to which such Underwriters or any such controlling person may become
subject, under the Securities Act or 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 Company Offering Materials, (ii) the omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) the omission or alleged omission to state in the Company Offering
Materials other than the Registration Statement a material fact required to be
stated or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
each Underwriter and each such controlling person promptly upon demand for any
documented legal or documented other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the foregoing
indemnity with respect to any untrue statement contained in or omission from the
Prospectus shall not inure to the benefit of any Underwriter if the Sponsor
shall sustain the burden of proving that the person asserting against such
Underwriter the loss, liability, claim, damage or expense purchased any of the
Underwritten Notes which are the subject thereof and was not sent or given a
copy of the appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented) (the term Prospectus as used in this clause shall not include
documents incorporated by reference thereto), if required by law, at or prior to
the written confirmation of the sale of such Underwritten Notes and prior to
delivery of such confirmation the Sponsor had furnished such Underwriter with a
supplement to such Prospectus (or Prospectus as amended or supplemented)
correcting the untrue statement in or omission from such Prospectus (or
Prospectus as amended or supplemented).
The foregoing indemnity agreement is in addition to any liability
which the Sponsor may otherwise have to the Underwriters or any controlling
person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not jointly
indemnify and hold harmless the Sponsor, the directors and the officers of the
Sponsor who signed the Registration Statement, and each person, if any, who
controls the Sponsor within the meaning of the Securities Act or the Exchange
Act against any and all loss, claim, damage or liability, or any action in
respect thereof, to which the Sponsor, or any such director, officer or
controlling person may become subject, under the Securities Act or 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 relating to such Underwriter contained in the
Underwriter Information or (ii) the omission or alleged omission to state
therein 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 Sponsor,
22
promptly on demand, and any such director, officer or controlling person for any
documented legal or other documented expenses reasonably incurred by the
Sponsor, 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 foregoing indemnity agreement is in addition to any liability
which the Underwriters may otherwise have to the Sponsor or any such director,
officer or controlling person.
C. Promptly after receipt by any indemnified party under this
Section 9 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 9, promptly 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 9 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 9.
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, unless such indemnified party reasonably objects to such assumption on
the ground that there may be legal defenses available to it which are different
from or in addition to those available to such indemnifying 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 9 for any fees and expenses of counsel
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 local counsel) at any time for all such indemnified
23
parties, which firm shall be designated in writing by the Representative, if the
indemnified parties under this Section 9 consist of the Underwriters or any of
their controlling persons, or by the Companies, if the indemnified parties under
this Section 9 consist of either of the Companies or any of the Companies'
directors, officers or controlling persons, but in either case reasonably
satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9A and B, shall use its reasonable efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which such indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action.
D. Each Underwriter agrees to deliver to the Companies no later than
the date prior to the date on which the Form 8-K is required to be filed
pursuant to Section 2A (i) hereof with a copy of its Derived Information
(defined below) for filing with the Commission on Form 8-K.
E. (i) Each Underwriter agrees, assuming all Company-Provided
Information (defined below) is accurate and complete in all material respects,
to severally and not jointly indemnify and hold harmless the Sponsor, each of
the Sponsor's officers and directors and each person who controls the Sponsor
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities 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 of a material fact contained in the Derived
Information provided by such Underwriter, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, 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; provided, however, that in no case shall any Underwriter
be responsible for any amount in excess of the underwriting discount applicable
to the Underwritten Notes purchased by such Underwriter. The obligations of each
of the Underwriters under this Section 9E(i) shall be in addition to any
liability which such Underwriter may otherwise have.
(ii) The Sponsor agrees to indemnify and hold harmless each
Underwriter, each of such Underwriter's officers and directors and each person
who controls such Underwriter within the meaning of Section 15 of the Securities
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the 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 of a material fact contained
in the Company-
24
Provided Information, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, 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 Sponsor's obligation under this Section 9E(ii) shall be in addition to any
liability which they may otherwise have to the Underwriters.
The procedures set forth in Section 9C shall be equally applicable to
this Section 9E.
F. For purposes of this Section 9, the term "Derived Information"
means such portion, if any, of the information delivered to the Sponsor or the
Seller pursuant to Section 9D hereof for filing with the Commission on Form 8-K
as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral term sheets,
Structural term sheets or Computational Materials (as such terms
are interpreted in the No-Action Letters).
"Company-Provided Information" means (i) any computer tape furnished
to the Underwriters by the Sponsor or the Seller concerning the Receivables
comprising the Trust and (ii) any textual information contained in any
Collateral term sheet, Structural term sheet or Computational Materials as well
as any statistical information contained therein furnished directly by the
Sponsor or the Seller for inclusion therein.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral term sheet" as used
herein includes any subsequent Collateral term sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "▇▇▇▇▇▇ letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
G. If the indemnification provided for in this Section 9 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 9A, 9B or 9E 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
severally and not jointly 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 Sponsor on the one hand
25
and the Underwriters on the other from the offering of the Underwritten Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Sponsor on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Underwriters and the Sponsor shall be
deemed to be in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the public offering price
appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Sponsor 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 Sponsor or by one of the Underwriters, 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 Sponsor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 9G 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 9G
shall be deemed to include, for purposes of this Section 9G, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of the Sponsor and/or
the Seller, each officer of the Sponsor who signed the Registration Statement,
and each person, if any, who controls the Sponsor and/or the Seller within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Sponsor.
In no case shall any Underwriter be responsible for any amount in
excess of the underwriting discount applicable to the Underwritten Notes
purchased by such Underwriter 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. The Underwriters severally confirm that the Underwriter
Information set forth in the Prospectus Supplement together with the Derived
Information, is correct in all material respects and constitutes the only
information furnished in writing to the Sponsor or the Seller by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
26
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters participating in the public offering of the
Underwritten Notes shall fail at the Closing Date to purchase the Underwritten
Notes which it is obligated to purchase hereunder (the "Defaulted Securities"),
then the non-defaulting Underwriters shall have the right, within 24 hours
thereafter, to make arrangements to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Underwritten Notes to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated, pro rata in the proportion shown in the attached Schedule 1 as to
each non-defaulting Underwriter ("Pro Rata") (unless the non-defaulting
Underwriters agree among themselves to a different allocation) to purchase the
full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Underwritten Notes to be
purchased pursuant to this Agreement, (a) no non-defaulting Underwriters shall
be required to purchase any Notes which were to be purchased by the defaulting
Underwriter, (b) the non-defaulting Underwriters may elect to purchase the
remaining amount Pro Rata (unless the non-defaulting Underwriters agree among
themselves to a different allocation) provided that if the non-defaulting
Underwriters have not agreed to purchase the entire aggregate principal amount
of the Notes, then this Agreement shall terminate, without any liability on the
party of the non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve the defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Sponsor and the Seller prior to delivery of and payment for the Underwritten
Notes if prior to such time (i) any change, or any development involving a
prospective change, would have a material adverse effect on the general affairs,
business, management, financial condition, stockholders' equity, results of
operations, regulatory situation or business prospects of the Trust, the
Sponsor, the Insurer or the Seller which materially impairs the investment
quality of the Notes or makes it impractical or inadvisable to market the
Underwritten Notes; (ii) the Notes have been placed on credit watch or review by
S&P, ▇▇▇▇▇'▇ or Fitch with negative implications; (iii) trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers National Market System shall have been suspended or limited,
or minimum prices shall have been established on such exchange or market system;
(iv) a banking moratorium shall have been declared by either federal or New York
State authorities; (v) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which is a
material adverse effect on the practicality or advisability of proceeding with
the completion of
27
the sale and payment for the Underwritten Notes; or (vi) any material disruption
in securities settlement, payment or clearance services shall have occurred in
the United States. Upon such notice being given, the parties to this Agreement
shall (except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations under
this Agreement.
Section 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Companies submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Representative or controlling
person of the Representative, or by or on behalf of the Companies or any
officers, directors or controlling persons and shall survive delivery of any
Underwritten Notes to the Representative or any controlling person.
Section 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to:
The Underwriters: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
World Financial Center, North Tower
New York, New York 10281-1310
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Sponsor: AmeriCredit Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Seller: AFS Funding Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 14. Parties. This Agreement shall inure to the benefit of and
be binding upon the Representative and the Companies, and their respective
successors or assigns. Nothing expressed or mentioned in this Agreement is
intended nor shall it be construed to give any person, firm or corporation,
other than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Section 9 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives (to the extent of their rights as specified herein and
therein) and except as provided above for the benefit of no other person, firm
or corporation. No purchaser of
28
Underwritten Notes from the Representative shall be deemed to be a successor by
reason merely of such purchase.
Section 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
29
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Sponsor and the Seller in
accordance with its terms.
Very truly yours,
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance
AFS FUNDING CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance
CONFIRMED AND ACCEPTED, as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Schedule 1
Underwriting
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & 100.00000% 99.99666% 99.99212% 99.99596%
▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc. 100.00000% 99.99666% 99.99212% 99.99596%
Credit Suisse First Boston
Corporation 100.00000% 99.99666% 99.99212% 99.99596%
Banc One Capital Markets, Inc. 100.00000% 99.99666% 99.99212% 99.99596%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 100.00000% 99.99666% 99.99212% 99.99596%
First Union Securities, Inc. 100.00000% 99.99666% 99.99212% 99.99596%
Class A-1 Class A-2 Class A-3 Class A-4
--------- --------- --------- ---------
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated $ 34,500,000 $ 53,000,000 $ 54,500,000 $ 43,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 34.500,000 $ 53,000,000 $ 54,500,000 $ 43,000,000
Credit Suisse First Boston $ 34,000,000 $ 53,000,000 $ 54,000,000 $ 42,750,000
Corporation
Banc One Capital Markets, Inc $ 34,000,000 $ 53,000,000 $ 54,000,000 $ 42,750,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 34,000,000 $ 53,000,000 $ 54,000,000 $ 42,750,000
First Union Securities, Inc. $ 34,000,000 $ 53,000,000 $ 54,000,000 $ 42,750,000
-------------------------------------------------------------------------------------------------------
Total $205,000,000 $318,000,000 $325,000,000 $257,000,000