EXHIBIT 1.1
EXECUTION COPY
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP.
GS AUTO LOAN TRUST 2006-1
PUBLICLY OFFERED ASSET BACKED NOTES
---------
UNDERWRITING AGREEMENT
July 28, 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
as Representative of the Underwriters
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp., a Delaware corporation (the
"Company"), proposes to sell to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as representative (the
"Representative") of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Huntington Capital Corp., as
underwriters (the "Underwriters"), subject to the terms and conditions stated
herein, an aggregate of $832,925,000 principal amount of the Notes issued by GS
Auto Loan Trust 2006-1, a Delaware statutory trust (the "GSALT Trust" or the
"Issuer") and specified on Schedule I hereto (the "Publicly Offered Notes"). The
GSALT Trust will also issue Class D Notes (together with the Publicly Offered
Notes, the "Notes") and Certificates (together with the Notes, the
"Securities"). The Notes will be issued pursuant to an Indenture, dated as of
the Closing Date, between the GSALT Trust and JPMorgan Chase Bank, National
Association, a national banking association, as indenture trustee (the
"Indenture Trustee") and will represent obligations of the GSALT Trust. The
Certificates will be issued pursuant to an Amended and Restated Trust Agreement,
dated as of the Closing Date (the "Trust Agreement") between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset
Backed Securities Corp. and Wilmington Trust Company, as Owner Trustee. The
assets of the GSALT Trust consist primarily of a pool of retail motor vehicle
loan and installment sale contracts, in each case secured by new or used
automobiles or light trucks.
GS Whole Loan Trust, a Delaware statutory trust ("Trust I"), purchased
certain retail motor vehicle loan and installment sale contracts (the "Ford
Receivables") from Ford Motor Credit Company ("Ford Credit") pursuant to a
Purchase and Sale Agreement, dated as of March 1, 2005 (the "Ford Purchase
Agreement") between Trust I, as purchaser, and Ford Credit, as seller. GS Whole
Loan Trust II, a Delaware statutory trust ("Trust II"), purchased certain retail
motor vehicle loan and installment sale contracts (the "Huntington Receivables")
from The Huntington National Bank ("Huntington") pursuant to a Purchase and
Servicing Agreement, dated as of June 7, 2005 (the "Huntington Purchase
Agreement") between Trust II, as purchaser, and Huntington, as seller. GS Whole
Loan Trust III, a Delaware statutory trust ("Trust III"), purchased certain
retail motor vehicle loan and installment sale contracts (the "OSB Receivables"
and together with the Ford Receivables and the Huntington Receivables, the
"Receivables") from Ohio Savings Bank ("OSB") pursuant to a Purchase Agreement,
dated as of
UNDERWRITING AGREEMENT
June 28, 2005 (the "OSB Purchase Agreement") between Trust III, as
purchaser, and OSB, as seller.
The Company will acquire the Ford Credit Receivables pursuant to a
Receivables Purchase Agreement, dated as of the Closing Date (as hereinafter
defined), between the Company and Trust I (the "Trust I Receivables Purchase
Agreement"). The Company will acquire the Huntington Receivables pursuant to a
Receivables Purchase Agreement, dated as of the Closing Date, between the
Company and Trust II (the "Trust II Receivables Purchase Agreement"). The
Company will acquire the OSB Receivables pursuant to a Receivables Purchase
Agreement, dated as of the Closing Date, between the Company and Trust III (the
"Trust III Receivables Purchase Agreement" and together with the Trust I
Receivables Purchase Agreement and the Trust II Receivables Purchase Agreement,
the "Receivable Purchase Agreements"). Pursuant to the Receivables Purchase
Agreements, Trust I, Trust II and Trust III will assign certain of their rights
with respect to certain representations and warranties under the Ford Purchase
Agreement, the Huntington Purchase Agreement and the OSB Purchase Agreement,
respectively, to the Company. Pursuant to the Sale and Servicing Agreement,
dated as of the Closing Date (the "Sale and Servicing Agreement"), by and among
the Company, the Issuer, the Indenture Trustee, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
and Wilmington Trust Company, as Owner Trustee, the Company will assign its
rights in the Receivables and certain other property to the GSALT Trust. The
Receivables will be serviced by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company pursuant to the
terms of the Sale and Servicing Agreement.
Huntington, the Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") (will
enter into an indemnification agreement, dated as of the Closing Date (the
"Indemnity Agreement"), whereby pursuant to the terms therein Huntington will
agree to indemnify the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ for all information provided to
the Company and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇ by Huntington for use in connection with the
issuance of the Securities.
At or prior to 4 00 pm on July 28, 2006 (the "Time of Sale"), the Company
had prepared the Preliminary Prospectus and the term sheet, dated July 25, 2006
(collectively, the "Time of Sale Information"). If, subsequent to the date of
this Agreement, the Company and the Underwriters determine that such information
included an untrue statement of material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and the Underwriters
advise the Company that the Underwriters have reformed the purchase contracts
with investors of the Publicly Offered Notes, then "Time of Sale Information"
will refer to the information available to purchasers at the time of entry into
the first reformed purchase contract, including any information that corrects
such material misstatements or omissions (such new information, the "Corrective
Information" and "Time of Sale" will refer to the time and date on which such
first reformed purchase contract was entered into). As used in this Agreement,
"Preliminary Prospectus" shall mean the base prospectus and any prospectus
supplement which describes the Publicly Offered Notes and the offering thereof
and is used prior to filing of the Prospectus (as defined below). "Free Writing
Prospectus" shall mean a "free-writing prospectus," as defined pursuant to Rule
405 under the Act, and "Trust Free Writing Prospectus" shall mean any Free
Writing Prospectus that is included in the Time of Sale Information. "Execution
Time" shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
2 UNDERWRITING AGREEMENT
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in Appendix A to the Sale and Servicing
Agreement.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-132001),
including a form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Publicly Offered Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), have been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has become effective. Such registration statement, as
amended at the Effective Time (as defined herein), including the exhibits
thereto and any material incorporated by reference therein, are hereinafter
referred to as the "Registration Statement," and the prospectus (including the
base prospectus and any prospectus supplement) relating to the Publicly Offered
Notes, as last filed, or mailed for filing, with the Commission pursuant to Rule
424(b) ("Rule 424(b)") under the Act is hereinafter referred to as the
"Prospectus." For purposes of this Agreement, "Effective Time" means the date
and time as of which such Registration Statement, or the most recent
post-effective amendment thereto, is declared effective by the Commission or is
deemed effective pursuant to Rule 430B under the Act, and "Effective Date" means
the date of the Effective Time;
(b) The Time of Sale Information, at the Time of Sale did not, and
on the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty as to
the information contained in or omitted from the Time of Sale Information in
reliance upon and in conformity with information furnished in writing to the
Company by any Underwriter specifically for use in the Time of Sale Information;
(c) Other than the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives other than the Underwriters in
their capacity as such) has not prepared or authorized, and will not prepare or
authorize any "written communication" (as defined in Rule 405 under the Act)
that constitutes an offer to sell or solicitation of an offer to buy the
Publicly Offered Notes other than any written communication approved by the
Underwriters. Any Trust Free Writing Prospectus complied in all material
respects with the Act, has been filed in accordance with Section 8 (to the
extent required by Rule 433 under the Act);
(d) If the Time of Sale Information includes any Trust Free
Writing Prospectus, then the Company is not, and on the date on which the first
bona fide offer of the Publicly Offered Notes is made will not be, an
"ineligible issuer", as defined in Rule 405 under the Act;
(e) On the Effective Date, the Registration Statement did conform
in all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), where applicable, and the rules
and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not, as of the Effective
3 UNDERWRITING AGREEMENT
Date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statement or omission made in reliance upon and in
conformity with information furnished in writing to the Company by either
Underwriter expressly for use in the Registration Statement;
(f) On the date of this Agreement, the Registration Statement
conforms, and at the time of the last filing of the Prospectus pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the "Rules and Regulations"), and, except as
aforesaid, neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(g) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations thereunder;
and any further documents so filed and incorporated by reference in the
Prospectus, 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 thereunder;
(h) Since the date as of which information is given in the
Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has all requisite power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus;
(j) The GSALT Trust has been duly organized and is validly
existing as a Delaware statutory trust in good standing under the laws of the
State of Delaware and has all requisite power and authority (trust and other) to
own its properties and to conduct its business as described in the Prospectus;
(k) At the Time of Delivery (as defined in Section 4 hereof), the
Receivables Purchase Agreements, the Sale and Servicing Agreement and the
Indenture will have been duly authorized, executed and delivered (and the
Indenture will have been qualified under the Trust Indenture Act) and will
constitute a valid and legally binding obligation of the Company and the GSALT
Trust, as applicable, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity;
4 UNDERWRITING AGREEMENT
(l) When the Publicly Offered Notes are issued, executed,
authenticated and when delivered pursuant to this Agreement and the Indenture,
the Publicly Offered Notes will have been duly authorized, executed,
authenticated, issued and delivered and will be entitled to the benefits of the
Indenture; and the Publicly Offered Notes and the Indenture will conform to the
descriptions thereof in the Prospectus;
(m) This Agreement has been duly authorized and validly executed
and delivered by the Company;
(n) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, the Sale and
Servicing Agreement and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Sale and Servicing Agreement or the
Indenture, except the registration under the Act of the Publicly Offered Notes,
such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Publicly Offered Notes by the Underwriters;
(o) The Company is not in violation of its Certificate of
Incorporation or By-laws or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(p) The statements set forth in the Prospectus under the caption
"The Notes", insofar as they purport to constitute a summary of the terms of the
Notes, under the caption "Material United States Federal Income Tax
Considerations", and under the caption "Underwriting", insofar as they purport
to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(q) The Company will, at the Time of Delivery, own the
Receivables, free and clear of any lien, mortgage, pledge, charge, security
interest or other encumbrance, and, at the Time of Delivery, the Company will
have full power and authority to sell and deliver the Receivables to the GSALT
Trust under the Sale and Servicing Agreement and at the Time of Delivery will
have duly authorized such assignment and delivery to the GSALT Trust by all
necessary action;
5 UNDERWRITING AGREEMENT
(r) The GSALT Trust's pledge of the Trust Property to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture Trustee a
first priority perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other encumbrance;
(s) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
the GSALT Trust is a party or of which any property of the Company or the GSALT
Trust is the subject which, if determined adversely to the Company or the GSALT
Trust, would individually or in the aggregate have a material adverse effect on
the condition (financial or otherwise), earnings affairs, business, properties
or prospects of the Company or the GSALT Trust; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(t) Each of the Company and the GSALT Trust is not and, after
giving effect to the offering and sale of the Securities, will not be an
"investment company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(u) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the Sale and
Servicing Agreement and the Indenture and the Securities will have been paid at
or prior to the Time of Delivery; and
(v) ▇▇▇▇▇ & Young LLP who has been engaged to apply agreed-upon
procedures to be performed in accordance with the standards established by the
American Institute of Certified Public Accountants, and substantially in the
form heretofore agreed and otherwise in form and in substance satisfactory to
its counsel is an independent public accountant as required by the Act and the
rules and regulations of the Commission thereunder.
2. PURCHASE AND PAYMENT. Subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, and the Underwriters
severally agree to purchase from the Company, at a purchase price determined in
accordance with Schedule I hereto, the principal amount of Publicly Offered
Notes set forth in Schedule I hereto.
3. SALE BY THE UNDERWRITERS. Upon the authorization by you of the
release of the Securities, the Underwriters propose to offer the Publicly
Offered Notes for sale to the public upon the terms and conditions set forth in
the Prospectus.
4. DELIVERY AND CLOSING. (a) Delivery of, and payment of the purchase
price for, the Publicly Offered Notes shall be made at the office of Mayer,
Brown, ▇▇▇▇ & Maw LLP, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MBR&M"), or
at such other place as shall be agreed upon by you and the Company, at 10:00
A.M. on August 2, 2006, or such other time as shall be agreed upon by you and
the Company (such time and date being referred to as the "Time of Delivery" or
the "Closing Date"). The Company will deliver such Publicly Offered Notes to the
Underwriters, against payment by or on behalf of the Underwriters of the
purchase price therefor by wire transfer to the Company of Federal (same day)
funds, by causing DTC to credit such Publicly Offered Notes to the account of
the Underwriters at DTC. The Company will cause the Publicly Offered Notes to be
made available for examination by you in Chicago, Illinois at least
6 UNDERWRITING AGREEMENT
twenty-four hours prior to the Time of Delivery at an office designated by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the "Designated Office"). The Publicly Offered Notes to be
so delivered will initially be represented by one or more definitive global
Notes in book-entry form registered in the name of Cede & Co., the nominee of
DTC. The interests of beneficial owners of the Securities will be represented by
book entries on the records of DTC and participating members thereof.
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Publicly Offered Notes and any additional documents
requested by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. pursuant to Section 7(y) hereof, will be
delivered at the offices of MBR&M (the "Closing Location"), and the Publicly
Offered Notes will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., Chicago
time, on the Chicago Business Day next preceding the Time of Delivery, or such
other time as shall be agreed by you and the Company, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section
4, "Chicago Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in Chicago are
generally authorized or obligated by law or executive order to close.
5. COVENANTS OF THE COMPANY. The Company agrees with each Underwriter
as follows:
(a) The Company will, if required, file the Prospectus pursuant to
Rule 424(b) under the Act with the Commission pursuant to and in accordance with
Rule 424(b) not later than the time specified therein. The Company will advise
the Underwriters promptly of any such filing pursuant to Rule 424(b). Subject to
Section 8, the Company will file any Trust Free Writing Prospectus to the extent
required by Rule 433 under the Act;
(b) The Company will not to make any amendment or any supplement
to the Registration Statement or the Prospectus, as amended or supplemented
prior to the Time of Delivery, without furnishing the Underwriters with a copy
of the proposed form thereof and providing the Underwriters with a reasonable
opportunity to review the same; and during such same period to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of any of the
Publicly Offered Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus, as amended or supplemented or for additional
information; and, in the event of the issuance of any such stop order or of any
order preventing or suspending the use of any prospectus relating to the
Publicly Offered Notes or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(c) The Company will promptly from time to time take such action
as the Underwriters may reasonably request to qualify the Publicly Offered Notes
for offering and sale under the securities laws of such states as the
Underwriters may request and to continue such
7 UNDERWRITING AGREEMENT
qualifications in effect so long as necessary under such laws for the
distribution of the Publicly Offered Notes, PROVIDED that in connection
therewith, neither the GSALT Trust nor the Company shall be required to qualify
to do business or to file a general consent to service of process in any
jurisdiction; and PROVIDED FURTHER, that the expense of maintaining any such
qualification more than one year from the Time of Delivery with respect to such
Publicly Offered Notes shall be at the expense of the Underwriters;
(d) The Company will furnish the Underwriters with copies of the
Registration Statement and copies of the Prospectus, as amended or supplemented,
in such quantities as the Underwriters may from time to time reasonably request,
and, if the delivery of a prospectus is required by law at any time prior to the
expiration of six months after the time of issue of the Prospectus in connection
with the offering or sale of the Publicly Offered Notes and if at such time,
either (i) any event 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 light of the circumstances under which they were made,
not misleading, or (ii) 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 Act, the Exchange Act or the Trust Indenture Act, to notify the
Underwriters and upon its request to 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 will correct such statement or omission or
effect such compliance; and in case either Underwriter is required by law to
deliver a prospectus in connection with sales of any of the Publicly Offered
Notes at any time six months or more after the time of issue of the Prospectus,
upon such Underwriter's request, but at such Underwriter's own expense, to
prepare and deliver to such Underwriter as many written and electronic copies as
such Underwriter may request of an amended or supplemented Prospectus complying
with the Act;
(e) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery for the Publicly
Offered Notes and such earlier time as an Underwriter may notify the Company not
to offer, sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of, except as provided hereunder any securities
of the Company that are substantially similar to the Publicly Offered Notes;
(f) [Reserved];
(g) So long as any of the Publicly Offered Notes are outstanding,
to furnish you copies of all reports or other communications (financial or
other) furnished to Holders of Notes, and to deliver to you during such same
period, (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission; (ii) copies of each
amendment to any of the Indenture, the Sale and Servicing Agreement and the
Receivables Purchase Agreements; and (iii) such additional information
concerning the business and financial condition of the Company or the GSALT
Trust as you may from time to time reasonably request;
(h) During a period of five years from the effective date of the
Registration Statement, to furnish to you (i) copies of any documents furnished
to or filed with the
8 UNDERWRITING AGREEMENT
Commission pursuant to the Exchange Act; and (ii) such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request;
(i) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds"; and
(j) To file with the Commission such information as may be
required under the Exchange Act.
6. PAYMENT OF EXPENSES. The Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid the following: (i)
the Commission's filing fees with respect to the Publicly Offered Notes; (ii)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (iii) the cost of printing or
producing this Agreement, the Indenture, the Blue Sky Survey, the Indemnity
Agreement, term sheets, closing documents (including any compilations thereof)
and any other document produced in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Publicly Offered Notes for offering and sale under state
securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of the
Indenture Trustee and of any agent of the Indenture Trustee and the fees and
disbursements of counsel for the Indenture Trustee in connection with the
Indenture and the Securities; and (vi) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and
Section 9 hereof, each Underwriter will pay all of its own costs and expenses,
including the fees of its counsel, transfer taxes on resale of any of the
Publicly Offered Notes by it, and any advertising expenses connected with any
offers it may make.
7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters hereunder shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus and any supplements thereto shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the
9 UNDERWRITING AGREEMENT
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to each Underwriter's
reasonable satisfaction;
(b) The Indenture, the Sale and Servicing Agreement, the
Receivables Purchase Agreements, the Indemnity Agreement and all of the other
agreements identified in such agreements, shall have been duly entered into by
all of the respective parties;
(c) MBR&M, special counsel for the Company, shall have furnished
to you their written opinions, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters;
(d) MBR&M, special counsel for the Underwriters, shall have
furnished to you their written opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters;
(e) In-house counsel to the Company, Trust I, Trust II, Trust III
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, shall have furnished to you their written
opinion or opinions, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters;
(f) In-house counsel to Huntington, shall have furnished to you
their reliance letter in connection with the written opinion, dated June 13,
2005, delivered in connection with the Huntington Purchase Agreement;
(g) In-house counsel to Huntington, shall have furnished to you
their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters;
(h) ▇▇▇▇▇▇▇▇ ▇▇▇▇ shall have furnished to you their written
opinion, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Underwriters, with respect to security interest related
matters in the states of Ohio and Kentucky;
(i) Holland & ▇▇▇▇▇▇ shall have furnished to you their written
opinion, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Underwriters, with respect to security interest related
matters in the state of Florida;
(j) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, shall
have furnished to you their written opinion or opinions, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of
Delivery, in form and substance reasonably satisfactory to the Underwriters,
with respect to general corporate matters relating to the Owner Trustee;
(k) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the
GSALT Trust, shall have furnished to you their written opinion or opinions,
subject to customary
10 UNDERWRITING AGREEMENT
qualifications, assumptions, limitations and exceptions, dated the Time of
Delivery, in form and substance reasonably satisfactory to the Underwriters,
with respect to certain matters relating to the GSALT Trust and the
establishment thereof;
(l) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the
GSALT Trust and Owner Trustee, shall have furnished to you their written opinion
or opinions, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Underwriters, with respect to certain perfection matters
relating to Trust I, Trust II, Trust III, the Company and the GSALT Trust;
(m) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, shall
have furnished to you their written opinion or opinions, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of
Delivery, in form and substance reasonably satisfactory to the Underwriters,
with respect to general corporate matters relating to the Indenture Trustee;
(n) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Huntington, shall have
furnished to you their reliance letter in connection with the written opinion,
dated June 7, 2005, delivered in connection with the Huntington Purchase
Agreement;
(o) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to SST, shall have furnished to
you their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters;
(p) ▇▇▇▇▇▇, ▇▇▇▇▇ & West LLP, counsel to OSB, shall have furnished
to you their reliance letter in connection with the written opinion, dated June
28, 2005, delivered in connection with the OSB Purchase Agreement;
(q) The independent accountants of the Company or other
accountants acceptable to the Underwriters shall have furnished to the
Underwriters a letter or letters, dated on the date hereof, and a letter or
letters, dated the Time of Delivery, respectively, containing statements and
information of the type customarily included in accountants' "comfort letters"
and "agreed upon procedures letters" with respect to certain financial
information contained in the Prospectus, in each case as to such matters as you
may reasonably request and in form and substance satisfactory to the
Underwriters;
(r) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the Time of
Delivery any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the Time of
Delivery, and (ii) since the respective dates as of which information is given
in the Prospectus as amended prior to the Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
11 UNDERWRITING AGREEMENT
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended prior to the Time of Delivery, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Underwriters so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Publicly Offered Notes on the terms and in
the manner contemplated in the Prospectus as first amended or supplemented;
(s) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(t) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iii) or (iv) in the judgment of the Underwriters
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus or Offering Supplement;
(u) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company satisfactory
to you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (a) of this Section and as
to such other matters as you may reasonably request;
(v) Each Underwriter shall have received evidence satisfactory to
it that the Publicly Offered Notes are rated in the rating category or
categories specified on Schedule I hereto by the rating agency or agencies
specified on Schedule I hereto;
(w) All opinions, certificates and other documents incident to,
and all proceedings in connection with the transactions contemplated by, this
Agreement, the Receivables Purchase Agreements, the Sale and Servicing Agreement
and the Indenture shall be satisfactory in form and substance to each
Underwriter and its special counsel;
(x) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or threatened
by the Commission; and
12 UNDERWRITING AGREEMENT
(y) Each Underwriter and its special counsel shall have received
copies of all documents and other information as they may reasonably request, in
form and substance satisfactory, to such Underwriter and its special counsel,
with respect to such transactions and the taking of all proceedings in
connection therewith.
8. FREE WRITING PROSPECTUSES; DELIVERY OF PRELIMINARY PROSPECTUS.
(a) In connection with the offering of the Publicly Offered Notes,
each Underwriter may prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word or Microsoft Excel format and not in a PDF, except to the extent
that the Company, in its sole discretion, waives such requirements, subject to
the following conditions (to which such conditions each Underwriter agrees):
(b) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, no Underwriter will convey or deliver
any written communication to any person in connection with the initial offering
of the Publicly Offered Notes, unless such written communication (i) is made in
reliance on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (iii) constitutes a Free Writing
Prospectus or Time of Sale Information. Without the Company's prior written
consent, the Underwriter shall not convey or deliver in connection with the
initial offering of the Publicly Offered Notes any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB ("ABS
Informational and Computational Material") in reliance upon Rules 167 and 426
under the Act.
(c) Each Underwriter will deliver to the Company, no later than
two Business Days prior to the date of first use thereof or such later date as
may be agreed by the Company, any Free Writing Prospectus prepared by or on
behalf of the Underwriter, including any Free Writing Prospectus that contains
any "issuer information", as defined in Rule 433(h) under the Act and footnote
271 of the Commission's Securities Offering Reform Release No. 33-8591 ("Trust
Information") (any Free Writing Prospectus prepared by an Underwriter is
referred to as an "Underwriter Free Writing Prospectus").
(d) The Company agrees to file with the Commission when required
under the Rules and Regulations the following:
(i) Any Trust Free Writing Prospectus;
(ii) Any Underwriter Free Writing Prospectus at the time
required to be filed; and
(iii) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with the Company
or any other offering participant that is in the business of publishing, radio
or television broadcasting or otherwise disseminating communications.
13 UNDERWRITING AGREEMENT
(e) Notwithstanding the provisions of Section 8(d), the Company
will not be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
(f) The Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by it will contain the following legend or a
substantially equivalent legend:
The Issuer has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free writing
prospectus relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
Issuer has filed with the SEC for more complete information about
the Issuer and this offering. You may get these documents for free
by visiting ▇▇▇▇▇ on the SEC website at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
the Issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it
by calling toll-free 1-8[xx-xxx-xxxx].
(g) The Company and the Underwriters each agree to retain all Free
Writing Prospectuses that they have used and that are not filed with the
Commission in accordance with Rule 433 under the Act.
(h) If any Underwriter becomes aware that, as of the Time of Sale,
any Underwriter Free Writing Prospectus delivered to a purchaser of a Publicly
Offered Note contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "Defective Free Writing
Prospectus"), the Underwriter will notify the Company thereof within one
Business Day after discovery.
(i) Provided that the Defective Free Writing Prospectus was a
Trust Free Writing Prospectus or contained Trust Information, the Underwriter
will, if requested by the Company:
(i) Prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Free Writing Prospectus
(such corrected Free Writing Prospectus, a "Corrected Free Writing Prospectus");
(ii) Deliver the Corrected Free Writing Prospectus to each
purchaser of a Security which received the Defective Free Writing Prospectus
prior to entering into an agreement to purchase any Securities;
(iii) Reform the contract of purchase with such purchaser by
notifying such purchaser in a prominent fashion that the prior agreement to
purchase Publicly Offered Notes has been terminated, and of such purchaser's
rights as a result of termination of such agreement; and
14 UNDERWRITING AGREEMENT
(iv) Provide such purchaser with an opportunity to
affirmatively agree to purchase such Publicly Offered Notes on the terms
described in the Corrected Free Writing Prospectus.
(j) Each Underwriter, severally, represents and agrees (i) that it
did not enter into any contract of sale for any Publicly Offered Notes prior to
the Time of Sale and (ii) that it will, at any time that such Underwriter is
acting as an "underwriter" (as defined in Section 2(a)(11) of the Act) with
respect to the Publicly Offered Notes, convey to each investor to whom Publicly
Offered Notes are sold by it during the period prior to the filing of the final
Prospectus (as notified to the Underwriters by the Company), at or prior to the
applicable time of any such contract of sale with respect to such investor, the
Preliminary Prospectus.
(k) Each Underwriter covenants with the Company and the GSALT
Trust that after the Final Prospectus is available the Underwriter will not
distribute any written information concerning the Publicly Offered Notes to a
prospective purchaser of Publicly Offered Notes unless such information is
preceded or accompanied by the final Prospectus.
(l) If the Company becomes aware that, as of the Time of Sale, any
Trust Free Writing Prospectus delivered to a purchaser of a Publicly Offered
Note contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading (such
Trust Free Writing Prospectus, a "Defective Trust Free Writing Prospectus"), the
Company will notify the Underwriter thereof within one Business Day after
discovery, and, if requested by the Underwriter, prepare and deliver to the
Underwriter a Free Writing Prospectus which corrects the material misstatement
in or omission from the Defective Trust Free Writing Prospectus (such corrected
Trust Free Writing Prospectus, a "Corrected Trust Free Writing Prospectus").
9. INDEMNIFICATION. (a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which each Underwriter may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
term sheet, the Registration Statement or the Prospectus, any Issuer Free
Writing Prospectus or any Trust Information contained in any Underwriter Free
Writing Prospectus or the same information or any other information provided by
the Company expressly for use in any other prospectus relating to the Securities
as of the date thereof, or any amendment or supplement thereto as of the date
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such document in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement or Prospectus.
15 UNDERWRITING AGREEMENT
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any term sheet, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any such
document in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use therein; and will reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; PROVIDED, HOWEVER, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection and only
to the extent that it has been materially prejudiced by such failure. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In any such
action, an indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel, (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them, or (iii) the indemnifying party fails to retain counsel
reasonably satisfactory to the indemnified party as provided in the preceding
sentence. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party. Each indemnified party
16 UNDERWRITING AGREEMENT
shall reasonably cooperate with the indemnifying party in the defense of any
such action or claim.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Publicly Offered Notes to which such loss,
claim, damage or liability (or actions in respect thereof relates). If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company compared to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
the Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Publicly Offered Notes underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
17 UNDERWRITING AGREEMENT
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriters or any controlling person of the Underwriters or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Publicly Offered Notes.
11. If for any reason the Publicly Offered Notes are not delivered by or
on behalf of the Indenture Trustee as provided herein, other than by an
Underwriter's failure to comply with its obligations hereunder, the Company will
reimburse such Underwriter for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by such Underwriter in making
preparations for the purchase, sale and delivery of the Publicly Offered Notes,
but the Company shall be under no further liability to such Underwriter with
respect to such Notes except as provided in Section 6 and Section 9 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. shall be delivered or sent by mail,
telex or facsimile transmission to the Underwriter at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company and, to the extent provided in
Sections 9 and 10 hereof, the officers and directors of the Company and the
Underwriters, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Publicly Offered Notes from
either Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company acknowledges that in connection with the offering of the
Publicly Offered Notes the Underwriters are acting solely in the capacity of an
arm's length contractual counterparty to the Company with respect to the
offering of the Publicly Offered Notes contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of the Company or any other Person.
18 UNDERWRITING AGREEMENT
Additionally, none of the Underwriters are advising the Company or any other
Person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with their own advisors concerning such
matters and shall be responsible for making their own independent investigation
and appraisal of the transactions contemplated hereby, and the Underwriters
shall have no responsibility or liability to the Company with respect to any
such legal, tax, investment, accounting or regulatory matters. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company. The Company
waives to the full extent permitted by applicable law any claims it may have
against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Publicly Offered Notes.
18. This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this
Agreement) that relate to the offering of the Publicly Offered Notes, represents
the entire agreement between the Company and the Underwriters with respect to
the preparation of the Prospectus, and the conduct of the offering, and the
purchase and sale of the Publicly Offered Notes.
[SIGNATURES FOLLOW]
19 UNDERWRITING AGREEMENT
If the foregoing is in accordance with your understanding, please sign and
return to us four (4) counterparts hereof, whereupon this letter and your
acceptance hereof shall represent a binding agreement between the Company and
the Underwriters.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
For itself and as Representative
of the Underwriters
S-1 UNDERWRITING AGREEMENT
SCHEDULE I
PRINCIPAL AMOUNT OF
CLASS OF NOTES NOTES TO BE PURCHASED PURCHASE PRICE RATING(1)
------------------------------ --------------------- -------------- ------------
CLASS A-1 NOTES $ 228,000,000 $ 228,000,000 P-1/F1+/A-1+
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 228,000,000 $ 228,000,000
Huntington Capital Corp. $ 0 $ 0
CLASS A-2 NOTES $ 184,036,000 $ 184,027,240 Aaa/AAA/AAA
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 179,036,000 $ 179,027,478
Huntington Capital Corp. $ 5,000,000 $ 4,999,762
CLASS A-3 NOTES $ 243,435,000 $ 243,415,087 Aaa/AAA/AAA
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 238,435,000 $ 238,415,496
Huntington Capital Corp. $ 5,000,000 $ 4,999,591
CLASS A-4 NOTES $ 125,369,000 $ 125,334,624 Aaa/AAA/AAA
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 120,369,000 $ 120,335,995
Huntington Capital Corp. $ 5,000,000 $ 4,998,629
CLASS B NOTES $ 30,562,000 $ 30,561,435 A1/A/A
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 30,562,000 $ 30,561,435
Huntington Capital Corp. $ 0 $ 0
CLASS C NOTES $ 21,523,000 $ 21,522,718 Baa2/BBB/BBB
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 21,523,000 $ 21,522,718
Huntington Capital Corp. $ 0 $ 0
----------
(1) ▇▇▇▇▇'▇/Fitch/S&P
UNDERWRITING AGREEMENT
UNDERWRITING
INITIAL PUBLIC DISCOUNT AND PURCHASE PRICE TO
CLASS OF NOTES OFFERING PRICE COMMISSION(2) THE DEPOSITOR
------------------ ----------------- -------------- -----------------
Per Class A-1 Note 100.00000% 0.100% 99.90000%
Per Class A-2 Note 99.99524% 0.150% 99.84524%
Per Class A-3 Note 99.99182% 0.200% 99.79182%
Per Class A-4 Note 99.97258% 0.250% 99.72258%
Per Class B Note 99.99815% 0.300% 99.69815%
Per Class C Note 99.99869% 0.500% 99.49869%
---------------- ------------- ----------------
Total $ 832,861,103.38 $1,503,647.50 $ 831,357,455.88
----------
(2) Retained by the Underwriters
UNDERWRITING AGREEMENT