$_______________
ANRC AUTO OWNER TRUST
$__________ ____% ASSET BACKED NOTES, CLASS A-1
$__________ ____% ASSET BACKED NOTES, CLASS A-2
$__________ ____% ASSET BACKED NOTES, CLASS A-3
$__________ ____% ASSET BACKED NOTES, CLASS A-4
AUTONATION RECEIVABLES CORPORATION
UNDERWRITING AGREEMENT
_________________ , _______
________________________________ ,
as Representative of the Several Underwriters
________________________________
________________________________
Ladies and Gentlemen:
1. Introductory. AutoNation Receivables Corporation, a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause the ANRC Owner Trust ______________ (the "Trust") to
issue and sell $_____________ aggregate principal amount of ____% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), $______________ aggregate principal
amount of ____% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"),
$------------- aggregate principal amount of ____% Asset Backed Notes, Class A-3
(the "Class A- 3 Notes") and $______________ aggregate principal amount of ____%
Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The
Notes will be issued pursuant to an Indenture, to be dated as of ______________,
______ (the "Inden-
ture"), between the Trust and _____________, a _____________ banking corporation
as indenture trustee (in such capacity, the "Indenture Trustee").
The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sales contracts (the "Contracts"), all of which
are secured by new and/or used automobiles and/or light-duty trucks, certain
monies due on Simple Interest Contracts or received thereunder on or after the
Cut-Off Date, such Contracts to be sold to the Trust by the Company and to be
serviced for the Trust by AutoNation Financial Services Corp. ("AutoNation
Financial Services" or, in its capacity as servicer, the "Servicer").
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Sale and Servicing Agreement, to be dated as of _______________________ ,
______________ (the "Sale and Servicing Agreement"), by and among the Trust, the
Company, AutoNation Financial Services, as Servicer and Custodian and the
Indenture Trustee or, if not defined therein, in the Indenture, the Owner Trust
Agreement or the Receivables Purchase Agreement, as the case may be. As used
herein, "Basic Documents" shall have the meaning specified in the Sale and
Servicing Agreement. The Company hereby agrees with the several Underwriters
named in Schedule A hereto (collectively, the "Underwriters") as follows:
2. Representations and Warranties of the Company and AutoNation
Financial Services Corp.. The Company and AutoNation Financial Services, each
with respect to itself only, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-_______) relating
to the Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Securities Act"), and is not proposed to be amended or (ii) is proposed
to be amended by amendment or post-effective amendment. If the Company
does not propose to amend the registration statement, and if any
post-effective amendment to the registration statement has been filed with
the Commission prior to the execution and delivery of this Agreement, the
most recent post-effective amendment has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
under the Act ("Rule 462(c)"). For purposes of this Agreement, "Effective
Time" means (i) if the Company has advised ______________________________,
as representative of the several Underwriters (in such capacity, the
"Representative"), that it does not propose to amend the registration
statement, the date and time as of which the regis-
2
tration statement, or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Company has advised the
Representative that it proposes to file an amendment or post-effective
amendment to the registration statement, the date and time as of which the
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" means the date of the Effective Time. The registration
statement, as amended at the Effective Time, including all information (if
any), deemed to be a part of the registration statement as of the
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Registration Statement". The form of
prospectus relating to the Notes, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) under the Act ("Rule
424(b)") or, if no such filing is required, as included in the
Registration Statement, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission (collectively, the "Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (ii) on the date of this
Agreement, the Registration Statement conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) the Registration Statement and
the Prospectus will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and 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. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on the
Effective Date, the Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act and the Rules and
Regulations, (ii) neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (iii) no additional registration statement related to
the Notes pursuant to
3
Rule 462(b) has been or will be filed. The two preceding sentences do not
apply to statements in, or omissions from, the Registration Statement or
the Prospectus based upon written information furnished to the Company by
any Underwriter through the Representative specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(b), [the information regarding the Insurer
set forth under the heading "The Insurer" in or incorporated by reference
in the Prospectus and the information set forth under the heading "The
Insurance Policy" in the Prospectus].
(c) Each of the Company and AutoNation Financial Services has been
duly incorporated and is an existing corporation in good standing under
the laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each of the Company and AutoNation Financial Services is
duly qualified to do business as a foreign corporation in good standing in
the State of Florida and in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification and in which the failure to so qualify, taken in the
aggregate, would have a material adverse effect on it.
(d) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company, AutoNation Financial Services or the Trust for the
consummation of the transactions contemplated by this Agreement and the
Basic Documents in connection with the issuance of the Notes and the
Residual Interest Certificate and the sale by the Company of the Notes,
except such as have been obtained or will be obtained by the Closing Date
and made under the Securities Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Company's, the Trust's and the Indenture Trustee's interest in
the Contracts, which financing statements will be filed in the appropriate
offices prior to the Closing Date (as such term is defined in Section 3
herein).
(e) Neither the Company nor AutoNation Financial Services is in
violation of its Certificate of Incorporation or By-laws or is in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument to which it is a party
or by which it or its properties are bound which could have a material
adverse
4
effect on the ability of either the Company or AutoNation Financial
Services to perform its obligations contemplated herein or in the other
Basic Documents. The execution, delivery and performance of this
Agreement and the other Basic Documents by the Company and AutoNation
Financial Services, and the issuance of the Notes and the Residual
Interest Certificate and the sale by the Company of the Notes and the
compliance by the Company and AutoNation Financial Services with the terms
and provisions hereof and thereof will not, subject to obtaining any
consents or approvals as may be required under the securities or "blue
sky" laws of various jurisdictions, result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or
AutoNation Financial Services or any of their respective properties, or
any agreement or instrument to which the Company or AutoNation Financial
Services is a party or by which the Company or AutoNation Financial
Services is bound or to which any of the properties of the Company or
AutoNation Financial Services is subject, or the Certificate of
Incorporation or By-laws of the Company and AutoNation Financial
Services, except for conflicts, violations, breaches, acceleration and
defaults which individually or in the aggregate, would not be materially
adverse to the Company or AutoNation Financial Services or materially
adverse to the transaction contemplated by this Agreement or the Basic
Documents, and the Company has full power and authority to authorize the
issuance of the Notes and the Residual Interest Certificate and to sell
the Notes as contemplated by this Agreement, the Indenture and the Owner
Trust Agreement, and each of the Company and AutoNation Financial Services
has full power and authority to enter into this Agreement and the other
Basic Documents and to consummate the transactions contemplated hereby and
thereby.
(f) On the Closing Date, the Company will have directed the Owner
Trustee to authenticate and execute the Residual Interest Certificate and,
when delivered pursuant to the Owner Trust Agreement, the Residual
Interest Certificate will have been duly issued and delivered and will
constitute a valid and legally binding obligation of the Trust, entitled
to the benefits provided in the Owner Trust Agreement and enforceable in
accordance with its terms subject to enforcement of remedies to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and laws affecting creditors' rights and remedies generally, and the
general principals of equity, including principals of commercial
reasonableness and good faith
5
and fair dealing, regardless of whether the aforementioned is sought in a
proceeding in law or in equity.
(g) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or
AutoNation Financial Services or any of their respective properties that,
if determined adversely to the Company or AutoNation Financial Services,
would be reasonably likely to individually or in the aggregate have a
material adverse effect on the condition (financial or other), business or
results of operations of the Company or AutoNation Financial Services,
respectively, or would materially and adversely affect the ability of the
Company or AutoNation Financial Services to perform its obligations under
this Agreement or the other Basic Documents to which it is a party, or
which are otherwise material in the context of the issuance and sale of
the Notes or the issuance of the Residual Interest Certificate; and no
such actions, suits or proceedings are to the Company's or AutoNation
Financial Services' knowledge, contemplated.
(h) As of the Closing Date, the representations and warranties of
the Company and AutoNation Financial Services contained herein and in the
other Basic Documents will be true and correct.
(i) This Agreement and each other Basic Document to which it is a
party has been duly authorized, executed and delivered by each of the
Company and AutoNation Financial Services.
(j) The Company has authorized the conveyance of the Contracts to
the Trust, and, as of the Closing Date, the Company has directed the Trust
to execute and issue the Notes and the Residual Interest Certificate and
to sell the Notes.
(k) The Company's assignment and delivery of the Contracts to the
Trust as of the Closing Date will vest in the Trust all of the Company's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(l) The Trust's assignment of the Contracts to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein,
6
subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(m) The computer disk of the Contracts created as of _____________ ,
_______, and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an identifying
description of the Contracts that are listed on Exhibit A to the Sale and
Servicing Agreement.
(n) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the other
Basic Documents and the Notes and any other agreements contemplated herein
or therein shall have been paid or will be paid by the Company at or prior
to the Closing Date to the extent then due.
(o) The consummation of the transactions contemplated by this
Agreement and the other Basic Documents, and the fulfillment of the terms
hereof and thereof, 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 of any lien, charge or encumbrance upon any of the property
or assets of the Company or AutoNation Financial Services pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument
under which the Company or AutoNation Financial Services is a debtor or
guarantor, except for conflicts, violations, breaches, acceleration and
defaults which individually or in the aggregate, would not be materially
adverse to the Company or AutoNation Financial Services or materially
adverse to the transaction contemplated by this Agreement or the Basic
Documents.
(p) The Company is not and, after giving effect to the issuance of
the Residual Interest Certificate and the offering and sale of the Notes
and the application of the proceeds thereof as described in the
Prospectus, will not be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the
7
Underwriters agree, severally and not jointly, to purchase from the Company, at
a purchase price of, in the case of (i) the Class A-1 Notes, __.__% of the
principal amount thereof; (ii) the Class A-2 Notes, __.__% of the principal
amount thereof; (iii) the Class A-3 Notes, __.___% of the principal amount
thereof; and (iv) the Class A-4 Notes, __.__% of the principal amount thereof,
the respective principal amounts of each Class of the Notes set forth opposite
the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price, the Notes
of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will
be held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York, New York, at 10:00 A.M..,
New York time, on ___________ , ________ , or at such other time not later than
seven full business days thereafter as the Representative and the Company
determine, such time being herein referred to as the "Closing Date", against
delivery to the Indenture Trustee as custodian for DTC of the Global Notes
representing all of the Notes. The Global Notes will be made available for
checking at the above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at
least 24 hours prior to the Closing Date.
[The Company will deliver the Residual Interest Certificate to the above
office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP on the Closing Date. The
Residual Interest Certificate so to be delivered will be in definitive form, in
authorized denominations and registered in the name of the [Company] and will
be made available for checking at the above office of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at least 24 hours prior to the Closing Date.]
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the parties hereto have agreed that the Closing
Date will be not later than ____________________ , ___________ , unless
otherwise agreed to as described above.
8
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth
in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and
if consented to by the Representative, subparagraph (4)) of Rule 424(b)
not later than the second business day following the execution and
delivery of this Agreement. The Company will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus, or the Registration Statement or the Prospectus, and
will not effect such amendment or supplementation without the
Representative's reasonable consent; and the Company will also advise the
Representative promptly of the effectiveness of the Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an 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, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Securities Act, the
Company will promptly notify the Representative of such event and will
promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such statement or
omission, or an amendment which will effect such compliance.
9
Neither the Representative's consent to, nor the Underwriters delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will cause the Trust to make generally
available to the Noteholders an earnings statement of the Trust covering a
period of at least 12 months beginning after the Effective Date which will
satisfy the provisions of Section 11(a) of the Securities Act. For the
purpose of the preceding sentence, "Availability Date" means the 120 day
after the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date.
(e) The Company will furnish to the Representative copies of the
Registration Statement (including all exhibits), each related preliminary
prospectus, and, so long as delivery of a prospectus relating to the Notes
is required to be delivered under the Securities Act in connection with
sales by any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative reasonably requests. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative may
reasonably designate and will continue such qualifications in effect so
long as required for the distribution of the Notes; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation to do business, to file a general consent to service
of process in any such jurisdiction or subject itself to taxation in any
jurisdiction to which it is not subject.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the Representative
and, upon request, to each of the other Underwriters, copies of each
certificate and the annual statements of compliance delivered to the
Indenture Trustee
10
pursuant to Section 3.09 of the Indenture and Sections 3.09 and 3.10 of
the Sale and Servicing Agreement and the annual independent certified
public accountant's servicing reports furnished to the Indenture Trustee
pursuant to Section 3.11 of the Sale and Servicing Agreement, by
first-class mail as soon as practicable after such statements and reports
are furnished to the Indenture Trustee, and (ii) such other forms of
periodic certificates or reports as may be delivered to the Indenture
Trustee, the Owner Trustee or the Noteholders under the Indenture, the
Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to
the Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Company to the
Noteholders, (ii) all documents filed or caused to be filed by the Company
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (iii) such other information in the possession
of the Company concerning the Trust as the Representative from time to
time may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company will
pay all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees and other expenses (including fees
and disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale in jurisdictions that the
Representative may designate pursuant to Section 5(f) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Notes, for any travel expenses of
the officers and employees of the Underwriters and any other expenses of
the Underwriters in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto).
(j) To the extent, if any, that the rating provided with respect to
the Notes by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard &
Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.("Standard & Poor's",
together with ▇▇▇▇▇'▇, the "Rating Agencies"), is conditional upon the
11
furnishing of documents or the taking of any other action by the Company,
the Company shall furnish such documents and take any such other action.
(k) On or before the Closing Date, the Company and AutoNation
Financial Services shall annotate and indicate unambiguously in the
computer records of the Company and AutoNation Financial Services relating
to the Contracts to show the Trust's absolute ownership of the Contracts,
and from and after the Closing Date neither the Company nor AutoNation
Financial Services shall take any action inconsistent with the Trust's
ownership of such Contracts, other than as permitted by the Sale and
Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company and AutoNation Financial Services herein, to the accuracy of
the statements of Company and AutoNation Financial Services officers made
pursuant to the provisions hereof, to the performance by the Company and
AutoNation Financial Services of their respective obligations hereunder and to
the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the date
of this Agreement or, if the Effective Time is subsequent to the execution
and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be
filed shortly prior to such Effective Time), of_________________________ ,
in form and substance satisfactory to the Representative and counsel for
the Underwriters, confirming that they are independent public accountants
within the meaning of the Act and the applicable Rules and Regulations and
stating in effect that (i) they have performed certain specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Trust, AutoNation Financial Services and the
Company) set forth in the Registration Statement and the Prospectus (and
any supplements thereto), agrees with the accounting records of the Trust,
AutoNation Financial Services and the Company, excluding any questions of
legal interpretation, and (ii) they have performed certain specified
procedures with respect to the Contracts.
12
For purposes of this subsection, (i) if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended
by the amendment or post-effective amendment to be filed shortly prior to
the Effective Time, including all information (if any) deemed to be a part
of the initial registration statement as of such time pursuant to Rule
430A(b), and (ii) "Prospectus" shall mean the prospectus included in the
Registration Statement. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this subsection.
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this Agreement,
the Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a). 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, to the knowledge of the Company or the
Representative after due inquiry, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the business,
properties or financial condition of the Company or AutoNation Financial
Services which, in the judgment of a majority in interest of the
Underwriters (including the Representative), materially impairs the
investment quality of each Class of the Notes or makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any banking moratorium declared by Federal, Delaware or New York
authorities; or (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters
13
(including the Representative), the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of the Notes.
(d) The Representative shall have received such opinions as
reasonably requested of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the
Company and AutoNation Financial Services, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters.
(e) The Representative shall have received such opinions as
reasonably requested of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, special tax counsel
for the Company, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(f) The Representative shall have received such opinions as
reasonably requested of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the Underwriters.
(g) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President, any Vice-
President or a principal financial or accounting officer of each of the
Company and AutoNation Financial Services in which such officers, to the
best of their knowledge after reasonable investigation, shall state that:
the representations and warranties of the Company and AutoNation
Financial Services in this Agreement are true and correct in all material
respects; the Company or AutoNation Financial Services, as applicable, has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date in all
material respects; the representations and warranties of the Company or
AutoNation Financial Services, as applicable, in the Basic Documents are
true and correct as of the dates specified in such agreements in all
material respects; the Company or AutoNation Financial Services, as
applicable, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or prior
to the Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and,
subsequent to the date of the Prospectus, there has been no
14
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
otherwise), business, properties or results of operations of the Company
or AutoNation Financial Services or their respective businesses except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(h) The Representative shall have received an opinion of ___________
______________ , counsel to the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(i) The Representative shall have received an opinion of ___________
______________ , counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters.
(j) The Representative shall have received an opinion of ___________
______________ , special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(k) The Representative shall have received an opinion of ▇▇▇▇,
Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Company re: Nonconsolidation,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(l) The Representative shall have received evidence satisfactory to
it and its counsel that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of
State of the state of (i) Florida reflecting the transfer of the interest
of AutoNation Financial Services in the Contracts and the proceeds thereof
to the Company and the transfer of the interest of the Company in the
Contracts and the proceeds thereof to the Trust and (ii) Delaware
reflecting the grant of the security interest by the Trust in the
Contracts and the proceeds thereof to the Indenture Trustee.
(m) The Representative shall have received an opinion of ▇▇▇▇,
Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Company re: Perfection and
15
Priority, dated the Closing Date and satisfactory in form and substance to
the Representative and the counsel for the Underwriters.
(n) Each Class of the Notes shall have been rated in the highest
rating category by both Moody's or Standard & Poor's.
(o) The Representative shall have received a letter, dated the
Closing Date, of ________________________ which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than five days prior to such
Closing Date for purposes of this subsection.
(p) On or prior to the Closing Date, the Residual Interest
Certificate shall have been issued to the Company.
(q) The Representative shall have received from ▇▇▇▇, Gotshal &
▇▇▇▇▇▇ LLP and each other counsel for the Company, a letter dated the
Closing Date to the effect that the Underwriters may rely upon each
opinion rendered by such counsel to either Standard & Poor's or Moody's in
connection with the rating of any Class of the Notes, as if each such
opinion were addressed to the Underwriters.
(r) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇, P.A., special Florida counsel to the Company and AutoNation
Financial Services re: Security Interest, dated the Closing Date and
satisfactory in form and substance to the Representative and the counsel
for the Underwriters.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
16
7. Indemnification and Contribution.
(a) The Company and AutoNation Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter 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 or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, 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 loss, claim, damage, liability or
action as such expenses are incurred; provided that neither the Company
nor AutoNation Financial Services will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company or
AutoNation Financial Services by any Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below,
[the information regarding the Insurer set forth under the heading "The
Insurer" in or incorporated by reference in the Prospectus and the
information set forth under the heading "The Insurance Policy" in the
Prospectus]; and provided, further, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Under writer from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Notes concerned, to the extent that the untrue statement or
omission or alleged untrue statement or omission was eliminated or
remedied in the Prospectus, which Prospectus was required to be delivered
by such Underwriter under the Securities Act to such person and was not so
delivered if the Company or AutoNation Financial Services had previously
furnished copies thereof to such Underwriter.
17
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and AutoNation Financial Services against any
losses, claims, damages or liabilities to which the Company or AutoNation
Financial Services 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 or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or the 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 reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company or AutoNation
Financial Services in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are in curred,
it being understood and agreed that the only such information furnished
by any Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: ______________________ .
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may 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 and after acceptance by the
indemnified party of such counsel, the indemnifying party will not be
18
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party if 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) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) 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 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 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 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 bear 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 or the Under writers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of 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 action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contrib-
19
ute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
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. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company or AutoNation Financial Services
under this Section shall be in addition to any liability which the Company
or AutoNation Financial Services 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 Securities Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Company or AutoNation Financial Services, to each officer of the Company
and AutoNation Financial Services who has signed the Registration
Statement and to each person, if any, who controls the Company or
AutoNation Financial Services within the meaning of the Securities Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons are
20
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AutoNation Financial Services or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter or the Company or
AutoNation Financial Services or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Notes by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, AutoNation Financial Services and the Underwriters pursuant to Section
7 shall remain in effect. If the purchase of the Notes by the Underwriters is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (ii), (iii) or (iv) of Section 6(c), the Company and AutoNation Financial
Services, jointly and severally, will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at_____________________ , Attention:____________
(facsimile: (____) _____________________) or, if sent to the Company, will be
mailed, delivered or sent by facsimile transmission and confirmed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ____________ ,
(facsimile: (954) _______________), and if to AutoNation Financial Services,
will be mailed, delivered or sent by facsimile transmission and confirmed to
it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
____________________ , (facsimile: (954) _________________); provided that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
21
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Company or by a trust for which the Company was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join or intentionally cooperate
with any other person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counter parts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) Each of the Company and AutoNation Financial Services hereby submits
to the nonexclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
22
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to each of the Company and AutoNation
Financial Services one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, AutoNation Financial Services and the
several Underwriters in accordance with its terms.
Very truly yours,
AUTONATION RECEIVABLES
CORPORATION
By: ____________________________
Name:
Title:
AUTONATION FINANCIAL
SERVICES CORP.
By: ____________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
______________________________, acting on behalf of itself
and as the Representative of the several Underwriters
By:___________________________
Name:
Title:
A-1
SCHEDULE A
Underwriter Amount of Amount of Amount of Amount of
----------- Class A-1 Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
--------- -------- -------- --------
$ $ $ $
$ $ $ $
$ $ $ $
Total: $ $ $ $
A-2