Exhibit 1.1
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1999-A
Class A-1 4.980% Asset Backed Notes
Class A-2 5.383% Asset Backed Notes
Class A-3 5.740% Asset Backed Notes
Class A-4 5.880% Asset Backed Notes
UNDERWRITING AGREEMENT
----------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ February 12, 1999
Dear Sirs:
AmeriCredit Financial Services, Inc., a corporation organized and
existing under the laws of Delaware (the "Sponsor"), and AFS Funding Corp., a
-------
corporation organized and existing under the laws of Nevada (the "Seller") (the
------
Sponsor and the Seller, collectively, the "Companies"), agree with you as
---------
follows:
Section 1. Issuance and Sale of Notes. The Sponsor has authorized
--------------------------
the issuance and sale of $140,000,000 Class A-1 4.980% Asset Backed Notes,
$235,000,000 Class A-2 5.383% Asset Backed Notes, $130,000,000 Class A-3
5.740% Asset Backed Notes, and $195,000,000 Class A-4 5.880% Asset Backed
(collectively, the "Notes"). The Notes are to be issued by AmeriCredit
-----
Automobile Receivables Trust 1999-A (the "Trust") pursuant to an Indenture, to
-----
be dated as of February 9, 1999 (the "Indenture"), between the Trust and Bank
---------
One, N.A., a national banking association, as indenture trustee (the "Trustee")
-------
and as Trust Collateral Agent. In addition to the Notes, the Trust will also
issue an Asset Backed Certificate (the "Certificate") (the Notes and the
-----------
Certificate, collectively, the "Securities") pursuant to a Trust Agreement,
----------
dated as of February 8, 1999 as amended and restated as of February 9, 1999
between the Seller and Bankers Trust (Delaware), as owner trustee (the "Owner
-----
Trustee"). The assets of the Trust will initially include a pool of retail
-------
installment sale contracts secured by new or used automobiles, light duty trucks
and vans (the "Initial Receivables") and certain monies due thereunder on or
-------------------
after February 9, 1999 (the "Initial Cutoff Date"). Additional retail
-------------------
installment sale contracts secured by new or used automobiles, light duty trucks
and vans (the "Subsequent Receivables") and certain monies due thereunder on or
----------------------
after the applicable Subsequent Cutoff Date are intended to be purchased by the
Trust from the Seller from time to time on or before the end of the Funding
Period, from funds available under the Pre-Funded Amount. The Initial
Receivables and the Subsequent Receivables are hereinafter referred to as the
"Receivables."
-----------
The Notes will have the benefit of a note insurance policy (the "Note
----
Insurance Policy"), issued by Financial Security Assurance Inc., a monoline
----------------
insurance corporation organized under the laws of New York (the "Note Insurer").
------------
In connection with the issuance of the Note Insurance Policy (i) the
Companies, CP Funding Corp. ("CP Funding"), the Trust and the Note Insurer will
execute and deliver an Insurance Agreement dated as of February 9, 1999 (the
"Insurance Agreement") and (ii) the Seller, the Underwriters and the Note
--------------------
Insurer will execute and deliver an Indemnification Agreement dated as of
February 9, 1999 (the "Indemnification Agreement").
-------------------------
As used herein, the term "Sponsor Agreements" means the Sale and
------------------
Servicing Agreement dated as of February 9, 1999 among the Trust, the Sponsor,
as servicer, the Seller and Bank One, N.A., a national banking association, as
trust collateral agent (the "Sale and Servicing Agreement"), the Purchase
----------------------------
Agreement between the Sponsor, CP Funding and the Seller dated as of February 9,
1999 (the "Purchase Agreement"), the Insurance Agreement, the Indemnification
------------------
Agreement and this Agreement; the term "Seller Agreements" means the Sale and
-----------------
Servicing Agreement, the Purchase Agreement, the Trust Agreement, the Insurance
Agreement, the Indemnification Agreement and this Agreement.
The Notes are being purchased by the Underwriters named in Schedule 1
hereto, and the Underwriters are purchasing, severally, only the Notes set forth
opposite their names in Schedule 1, except that the amounts purchased by the
Underwriters may change in accordance with Section 10 of this Agreement. Credit
Suisse First Boston Corporation is acting as representative of the Underwriters
and in such capacity, is hereinafter referred to as the "Representative."
--------------
The offering of the Notes will be made by the Underwriters and the
Companies understand that the Underwriters propose to make a public offering of
the Notes for settlement on February 19, 1999 as the Underwriters deem
advisable.
The Certificate will be retained by the Seller.
Defined terms used herein shall have their respective meanings as set
forth in the Sale and Servicing Agreement.
Section 2. Representations and Warranties. A. The Sponsor
------------------------------
represents, warrants and agrees with the Underwriters, that:
(i) A Registration Statement on Form S-3 (No. 333-63565)
has (a) been prepared by the Sponsor on such Form in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act")
--------------
and the rules and regulations (the "Rules and Regulations") of the United States
---------------------
Securities and Exchange Commission (the "Commission") thereunder, (b) been filed
----------
with the Commission and (c) been declared effective by the Commission, and no
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or threatened, by
the Commission. Copies of such Registration Statement have been delivered by the
Sponsor to the Underwriters. There are no contracts or documents of the Sponsor
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and
2
Regulations which have not been so filed or incorporated by reference therein on
or prior to the Effective Date of the Registration Statement. The conditions for
use of Form S-3, as set forth in the General Instructions thereto, have been
satisfied.
As used herein, the term "Effective Date" means the date on and time
--------------
at which the Registration Statement became effective, or the date on and the
time at which the most recent post-effective amendment to such Registration
Statement, if any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement referred to in the
-----------------------
preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Notes. The term "Base Prospectus" means the prospectus included
---------------
in the Registration Statement. The term "Prospectus Supplement" means the
---------------------
prospectus supplement dated the date hereof, specifically relating to the Notes,
as filed with the Commission pursuant to Rule 424 of the Rules and Regulations
(the "Prospectus Supplement"). The term "Sponsor Offering Materials" means,
--------------------- --------------------------
collectively, the Registration Statement, the Base Prospectus and the Prospectus
Supplement except for (x) the information set forth under the caption "The
Insurer" and (y) the Underwriter Information. The term "Seller Offering
---------------
Materials" means the Prospectus Supplement except for (x) the information set
---------
forth under the caption "The Insurer" and (y) the Underwriter Information. The
-----------
term "Underwriter Information" means the information set forth under the caption
-----------------------
"Underwriting" in the Prospectus Supplement and any information in the
Prospectus Supplement relating to any potential market-making, over-allotment or
price stabilization activities of the Underwriters. The term "Prospectus"
----------
means, together, the Base Prospectus and the Prospectus Supplement.
To the extent that the Underwriter either (i) has provided to the
Sponsor Collateral term sheets (as hereinafter defined) that such Underwriter
has provided to a prospective investor, the Sponsor has filed such Collateral
term sheets as an exhibit to a report on Form 8-K within two business days of
its receipt thereof, or (ii) has provided to the Sponsor Structural term sheets
or Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Sponsor will file or cause to be filed
with the Commission a report on Form 8-K containing such Structural term sheet
and Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Underwriter in final form.
(ii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations. The Sponsor Offering
Materials do not and will not, as of the Effective Date or filing date
thereof and of any amendment thereto, as appropriate, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) The documents incorporated by reference in the Sponsor Offering
Materials, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Securities Exchange
Act of 1934, as
3
amended (the "Exchange Act"), as applicable, and the Rules and Regulations of
------------
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the Sponsor Offering
Materials, when such documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act and the Rules and
Regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(iv) Since the respective dates as of which information is given
in the Sponsor Offering Materials, or the Sponsor Offering Materials as
amended and supplemented, (x) there has not been any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory
situation or business prospects of the Sponsor and (y) the Sponsor has not
entered into any transaction or agreement (whether or not in the ordinary
course of business) material to the Sponsor that, in either case, would
reasonably be expected to materially adversely affect the interests of the
holders of the Notes, otherwise than as set forth or contemplated in the
Sponsor Offering Materials, as so amended or supplemented.
(v) The Sponsor is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose or (z) any notification with respect to the suspension of
the qualification of the Notes for the sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(vi) The Sponsor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the
Sponsor and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter
into and perform its obligations under each Sponsor Agreement and to cause
the Securities to be issued.
(vii) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal to
which the Sponsor is a party or of which any of its properties is the subject
(i) which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the business or financial condition
of the Sponsor, (ii) asserting the invalidity of any Sponsor Agreement, in whole
or in part or the Securities, (iii) seeking to prevent the issuance of the
Securities or the consummation by the Companies of any of the transactions
contemplated by any Sponsor Agreement, in whole or in part, or (iv) which if
determined adversely is likely to materially and
4
adversely affect the performance by the Sponsor of its obligations under, or the
validity or enforceability of, any Sponsor Agreement, in whole or in part or the
Securities.
(viii) Each Sponsor Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Sponsor and each Sponsor Agreement constitutes, a valid and binding agreement of
the Sponsor, enforceable against the Sponsor in accordance with its respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of the Securities, and the
execution, delivery and performance of each Sponsor Agreement and the
consummation of the transactions contemplated hereby and thereby, do not
and will not conflict with or result in a breach of or violate any term or
provision of or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, or other agreement or instrument to which the
Sponsor is a party, by which the Sponsor may be bound or to which any of
the property or assets of the Sponsor or any of its subsidiaries may be
subject, nor will such actions result in any violation of the provisions of
the articles of incorporation or by-laws of the Sponsor or any law, statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Sponsor or any of its respective
properties or assets.
(x) PricewaterhouseCoopers LLP is an independent public
accountant with respect to the Sponsor as required by the Securities Act
and the Rules and Regulations.
(xi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Notes, or the
consummation by the Sponsor of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Securities and such consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be required
under securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(xii) The Sponsor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Sponsor Offering Materials (or is exempt therefrom)
and the Sponsor has not received notice of any proceedings relating to the
revocation or modification of such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
5
(xiii) The Sponsor will not conduct its operations while any of
the Securities are outstanding in a manner that would require the Sponsor or the
Trust to be registered as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act"), as in effect on the date hereof.
--------
(xiv) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of any Sponsor Agreement,
the Note Insurance Policy and the Securities that are required to be paid by the
Sponsor at or prior to the Closing Date have been paid or will be paid at or
prior to the Closing Date.
(xv) At the Closing Date, each of the representations and
warranties of the Sponsor set forth in any Sponsor Agreement will be true
and correct in all material respects.
(xvi) Any certificate signed by an officer of the Sponsor and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2A are made.
B. The Seller represents, warrants and agrees with the Underwriters,
that:
(i) The Seller Offering Materials do not and will not, as of
the applicable filing date therefor and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading.
(ii) The documents incorporated by reference in the Seller
Offering Materials, when they were filed with the Commission conformed in
all material respects to the requirements of the Securities Act or the
Exchange Act and the Rules and Regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Seller Offering
Materials, when such documents are filed with the Commission will conform
in all material respects to the requirements of the Exchange Act and the
Rules and Regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(iii) Since the respective dates as of which information is given
in the Seller Offering Materials, (x) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory situation or business
prospects of the Seller and (y) the Seller has not entered into any transaction
or agreement (whether or not in the ordinary course of business) material to the
Seller that, in either case, would reasonably be expected to materially
adversely affect the interests of the
6
holders of the Securities, otherwise than as set forth or contemplated in the
Seller Offering Materials, as so amended or supplemented.
(iv) The Seller is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose or (z) any notification with respect to the suspension of
the qualification of the Notes for the sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(v) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the
Seller and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter
into and perform its obligations under each Seller Agreement.
(vi) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal
to which the Seller is a party or of which any of its properties is the
subject (i) which if determined adversely to it is likely to have a
material adverse effect individually, or in the aggregate, on the business
or financial condition of the Seller, (ii) asserting the invalidity of any
Seller Agreement in whole or in part, (iii) seeking to prevent the issuance
of the Securities or the consummation by the Seller of any of the
transactions contemplated by any Seller Agreement in whole or in part, or
(iv) which if determined adversely is likely to materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, any Seller Agreement in whole or in part or
the Securities.
(vii) Each Seller Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Seller and each Seller Agreement constitutes, a valid and binding agreement of
the Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(viii) The execution, delivery and performance of each Seller
Agreement by the Seller and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or result in a breach of
or violate any term or provision of or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Seller is a party, by which the Seller may be bound or
to
7
which any of the property or assets of the Seller or any of its subsidiaries
may be subject, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of its respective properties or assets.
(ix) PricewaterhouseCoopers LLP is an independent public
accountant with respect to the Seller as required by the Securities Act and
the Rules and Regulations.
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance and sale of the Notes, or the consummation
by the Seller of the transactions contemplated by each Seller Agreement except
the registration under the Securities Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may have been
obtained or effected or as may be required under securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the Underwriters.
(xi) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Seller Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating to
the revocation or modification of such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the conduct of
its business, operations, financial condition or income.
(xii) (a) Following the conveyance of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement, the Trust will own the
Receivables free and clear any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively, "Liens") other than
Liens created by the Sale and Servicing Agreement, and (b) the Seller will have
to power and authority to sell such Receivables to the Trust.
(xiii) As of the Cut-off Date, each of the Receivables will meet
the eligibility criteria described in the Prospectus.
(xiv) Neither the Seller nor the Trust created by the Trust
Agreement will conduct their operations while any of the Securities are
outstanding in a manner that would require the Seller or the Trust to be
registered as an "investment company" under the 1940 Act, as in effect on the
date hereof.
(xv) Each of the Securities, the Sale and Servicing Agreement,
the Purchase Agreement, the Trust Agreement, the Indemnification Agreement and
the Note Insurance Policy conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of any Seller Agreement,
the Note
8
Insurance Policy and the Securities that are required to be paid by
either the Seller at or prior to the Closing Date have been paid or will be paid
at or prior to the Closing Date.
(xvii) At the Closing Date, each of the representations and
warranties of the Seller set forth in any Seller Agreement will be true and
correct in all material respects.
(xviii) The direction by the Seller to the Owner Trustee to
execute, authenticate, issue and deliver the Certificate will be duly authorized
by the Seller and, assuming the Owner Trustee has been duly authorized to do so,
when executed, authenticated, issued and delivered by the Owner Trustee in
accordance with the Trust Agreement, the Certificate will be validly issued and
outstanding and will be entitled to the benefits of the Trust Agreement.
Any certificate signed by an officer of the Seller and delivered to
the Representative or the Representative's counsel in connection with an
offering of the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2B are made.
Section 3. Purchase and Sale. The Underwriters' commitment to
-----------------
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein set forth. The
Sponsor agrees to instruct the Trust to issue the Notes to the Underwriters, and
the Underwriters agree to purchase on the date of issuance thereof. The purchase
prices for the Notes shall be as set forth on Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for,
--------------------
and delivery of, any Notes to be purchased by the Underwriters shall be made at
the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue of the Americas, New York, New
York, or at such other place as shall be agreed upon by the Representative and
the Companies, at 10:00 a.m. New York City time on February 19, 1999 (the
"Closing Date"), or at such other time or date as shall be agreed upon in
------------
writing by the Representative and the Companies. Payment shall be made by wire
transfer of same day funds payable to the account designated by the Sponsor.
Each of the Notes so to be delivered shall be represented by one or more global
certificates registered in the name of Cede & Co., as nominee for The Depository
Trust Company.
The Companies agree to have the Notes available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 12:00 P.M. New York City time on the business day prior to the Closing
Date.
Section 5. Offering by Underwriters. It is understood that the
------------------------
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
Section 6. Covenants of the Seller. Each of the Companies covenants
-----------------------
with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by the
Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the
9
Underwriters of such timely filing; to cause to be made no further amendment or
any supplement to the Registration Statement or to the Prospectus prior to the
91st day following the Closing Date except as permitted herein; 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
prior to the 91st day following the Closing Date or any supplement to the
Prospectus or any amended Prospectus has been filed prior to the 91st day
following the Closing Date and to furnish the Underwriters with copies thereof;
to file promptly all reports and any global proxy or information statements
required to be filed by the Sponsor with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and, until the 91st day following the Closing Date; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or suspending the
use of the Prospectus; (ii) the suspension of the qualification of the Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat of any
proceeding for any such purpose; (iv) any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order or of any
order preventing or suspending the use of the Prospectus or suspending any such
qualification, the Sponsor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) the Prospectus
and any amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the offering or sale of
the Notes and if at such time any events shall have occurred as a result of
which the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Sponsor shall notify the Underwriters
and, upon the Underwriters' request based upon the advice of counsel, shall file
such document and prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such compliance.
D. To cause to be filed promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Seller or the Underwriters, be required by the
Securities Act or requested by the
10
Commission. Neither the Underwriters' consent to nor their delivery of any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7 hereof.
E. To cause to be furnished to the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the consent of
the Underwriters, which consent will not unreasonably be withheld, for the
filing of the following documents relating to the Notes: (i) any amendment to
the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) the Prospectus filed
pursuant to Rule 424 of the Rules and Regulations.
F. To use its best efforts, in cooperating with the Sponsor and the
Underwriters, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Underwriters may designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Notes. The Seller will cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been so
qualified.
G. The Seller will not, without the prior written consent of the
Representative, contract to sell any automobile receivables-backed certificates,
automobile receivables-backed notes or other similar securities either directly
or indirectly (as through the Sponsor) for a period of five (5) business days
after the later of the termination of the syndicate or the Closing Date.
H. So long as the Notes shall be outstanding, the Seller shall
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as to compliance of the Servicer delivered to
the Trustee pursuant to Section 4.10(a) of the Sale and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 4.11(a) of the Sale and Servicing Agreement
with respect to the Servicer; and (iii) the monthly reports furnished to the
Noteholders pursuant to Section 5.9 of the Sale and Servicing Agreement.
I. So long as any of the Notes are outstanding, the Seller will
furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year of the Trust, all documents required to be distributed to
Noteholders and other filings with the Commission pursuant to the Exchange Act,
or any order of the Commission thereunder with respect to any securities issued
by the Sponsor or the Seller that are (A) non-structured equity or debt offering
of the Sponsor or the Seller or (B) the Notes and (ii) from time to time, any
other information concerning the Sponsor or the Seller filed with any government
or regulatory authority which is otherwise publicly available, as the
Underwriters shall reasonably request in writing.
J. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
K. If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the knowledge of
the Seller, there shall have been any material change, or any development
involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of
11
operations of the Sponsor or the Seller, the Seller will give prompt written
notice thereof to the Underwriters.
L. To the extent, if any, that the ratings provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other actions
by the Sponsor or the Seller, the Seller shall use its best efforts to furnish
or cause to be furnished such documents and take any such other actions.
Section 7. Conditions of the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Notes pursuant to this Agreement
are subject to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Companies herein contained,
(ii) the accuracy of the statements of officers of the Companies made pursuant
hereto, (iii) the performance by the Companies of all of their respective
obligations hereunder, and the performance by the Companies of all of their
respective obligations under the Sponsor Agreements and the Seller Agreements
and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with.
B. The Underwriters shall have received the Sale and Servicing
Agreement, the Purchase Agreement, the Indenture, the Trust Agreement, the
Indemnification Agreement and the Notes in form and substance satisfactory to
the Underwriters and duly executed by the signatories required pursuant to the
respective terms thereof.
C. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The issuance and sale of the Notes have been duly authorized and,
when executed, authenticated, countersigned and delivered by the Trustee in
accordance with the Indenture and delivered and paid for pursuant to this
Agreement, will be validly issued and outstanding and will be entitled to
the benefits of the Trust Agreement and the Indenture, respectively.
(ii) No authorization, approval, consent or order of, or filing with,
any court or governmental agency or authority is necessary under the
federal law of the United States or the laws of the State of New York in
connection with the execution, delivery and performance by the Sponsor of
the Sponsor Agreements and by the Seller of the Seller Agreements, except
such as may be required under the Act or the Rules and Regulations and Blue
Sky or other state securities laws, filings with respect to the transfer of
the Receivables to the Trust pursuant to the Sale and Servicing Agreement
and such other approvals or consents as have been obtained.
(iii) Each Sponsor Agreement and each Seller Agreement constitutes the
legal, valid and binding obligation of the Sponsor or the Seller, as
appropriate, enforceable against each of the Sponsor or the Seller, as
appropriate, in accordance with their
12
respective terms, except that as to enforceability such enforcement may (A) be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights of creditors generally, (B) be limited
by general principles of equity (whether considered in a proceeding at law or in
equity) and (C) the enforceability as to rights to indemnification may be
subject to limitations of public policy under applicable laws.
(iv) None of the Sponsor, the Seller nor the Trust is required to be
registered as an "investment company" under the 1940 Act, as amended.
(v) The direction by the Seller to the Owner Trustee to execute,
issue, countersign and deliver the Certificate has been duly authorized
and, when the Certificate is executed and authenticated by the Trustee in
accordance with the Trust Agreement and delivered and paid for, they will
be validly issued and outstanding and entitled to the benefits provided by
the Trust Agreement.
(vi) The Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trustee as part
of the Trust Estate and has duly authorized such sale and assignment to the
Trustee by all necessary corporate action.
(vii) The Securities, the Sale and Servicing Agreement, the Purchase
Agreement and this Agreement each conform in all material respects with the
respective descriptions thereof contained in the Registration Statement and
the Prospectus.
(viii) The statements in the Base Prospectus under the captions "Summary
of Terms - Tax Considerations", "Summary of Terms - ERISA Considerations",
"ERISA Considerations" and "Certain Tax Considerations" and the statements
in the Prospectus Supplement under the captions "Certain Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by counsel and represent a fair and accurate summary of the
matters addressed therein, under existing law and the assumptions stated
therein.
(ix) The statements in the Base Prospectus under the caption "Certain
Legal Aspects of the Receivables" to the extent they constitute matters of
law or legal conclusions, are correct in all material respects.
(x) The Registration Statement is effective under the Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued, and to the best of such counsel's knowledge no proceeding for that
purpose has been instituted or threatened by the Commission under the Act.
(xi) The conditions to the use by the Sponsor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations
thereunder which have not been so filed.
13
(xii) The Registration Statement at the time it became effective, and
any amendments thereto at the time such amendment becomes effective (other than
the information set forth in the financial statements and other financial and
statistical information contained therein, as to which such counsel need express
no opinion), complied as to form in all material respects with the applicable
requirements of the Act and the Rules and Regulations thereunder.
(xiii) The execution, delivery and performance of each Sponsor Agreement
by the Sponsor will not conflict with or violate any federal statute, rule,
regulation or order of any federal governmental agency or body, or any federal
court having jurisdiction over the Sponsor or its properties or assets.
(xiv) The execution, delivery and performance of each Seller Agreement
by the Seller will not conflict with or violate any federal statute, rule,
regulation or order of any federal governmental agency or body, or any federal
court having jurisdiction over the Seller or its properties or assets.
In addition, counsel shall state that such counsel has participated in
conferences with officers and other representatives of each of the Seller, the
Sponsor, the Servicer, the Note Insurer, the Trustee and the Underwriters at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and on the basis of the foregoing, no facts have come to
such counsel's attention that have led such counsel to believe the Registration
Statement, at the time it became effective and as of the date of such counsel's
opinion, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of its
date and as of the date of such counsel's opinion, contained or contains an
untrue statement of material fact or omitted or omits to state a material fact
necessary to make the statements therein not misleading; it being understood
that such counsel need express no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
D. The Sponsor shall have delivered to the Underwriters a certificate,
dated the Closing Date, of an authorized officer of the Sponsor to the effect
that the signer of such certificate has carefully examined this Agreement and
the Prospectus and that: (i) the representations and warranties of the Sponsor
in each Sponsor Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date, (ii)
the Sponsor has complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to such officer's
knowledge, threatened, (iv) there has been no material adverse change in the
condition (financial or other), earnings, business, properties or prospects of
the Sponsor, whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus and (v) nothing
has come to such officer's attention that would lead such officer to believe
that the Sponsor Offering Materials contain any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the
14
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Sponsor shall attach to such certificate a true and correct copy
of its certificate of incorporation, as appropriate, and bylaws which are in
full force and effect on the date of such certificate and a certified true copy
of the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
E. The Underwriters shall have received from the Seller a certificate
dated the Closing Date, of an authorized officer of the Seller to the effect
that the signer of such certificate has carefully examined this Agreement and
the Prospectus and that: (i) the representations and warranties of the Seller in
each Seller Agreement are true and correct in all material respects at and as of
the Closing Date with the same effect as if made on the Closing Date, (ii) the
Seller has complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or satisfied in all
material respects at or prior to the Closing Date, (iii) there has been no
material adverse change in the condition (financial or other), earnings,
business, properties or prospects of the Seller whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus, and (iv) nothing has come to such officers'
attention that would lead such officer to believe that the Seller Offering
Materials contain any untrue statement of a material fact or omit to state any
material facts required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Seller shall attach to such certificate a true and correct copy of
its certificate of incorporation, as appropriate, and bylaws which are in full
force and effect on the date of such certificate and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
F. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.,
house counsel of the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware. The
Seller has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Nevada. Each of the Sponsor
and the Seller has full corporate power to own its property or assets and
to conduct its business as presently conducted by it and as described in
the Prospectus, and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property or assets requires
such qualification or where the failure to be so qualified would have a
material adverse effect on its condition (financial or otherwise).
(ii) Each Sponsor Agreement and each Seller Agreement has been duly
authorized, executed and delivered by authorized officers or signers of the
Sponsor or the Seller, as appropriate.
15
(iii) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the Notes has been duly authorized by the Seller.
(iv) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any Lien upon any
of the property or assets of the Sponsor pursuant to the terms of the
certificate of incorporation or the by-laws of the Sponsor or any statute,
rule, regulation or order of any governmental agency or body of the State
of Delaware, or any Delaware state court having jurisdiction over the
Sponsor or its property or assets or any material agreement or instrument
known to such counsel to which the Sponsor is a party or by which the
Sponsor or any of its property or assets is bound.
(v) The execution, delivery and performance of each Seller Agreement
by the Seller will not conflict with or result in a material breach of any
of the terms or provisions of, or constitute a material default under, or
result in the creation or imposition of any Lien upon any of the property
or assets of the Seller pursuant to the terms of the certificate of
incorporation or the by-laws of the Seller or any statute, rule, regulation
or order of any governmental agency or body of the State of Nevada, or any
Nevada state court having jurisdiction over the Seller or its property or
assets or any material agreement or instrument known to such counsel, to
which the Seller is a party or by which the Seller or any of its property
or assets is bound.
(vi) No authorization, approval, consent or order of, or filing with,
any court or governmental agency or authority of the State of Delaware is
necessary in connection with the execution, delivery and performance by the
Sponsor of any Sponsor Agreement except such as may be required under the
Securities Act or the Rules and Regulations and Blue Sky or other state
securities laws filings with respect to the transfer of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement and such other
approvals or consents as have been obtained.
(vii) No authorization, approval, consent or order of, or filing with,
any court or governmental agency or authority of the State of Nevada is
necessary in connection with the execution, delivery and performance by the
Seller of any Seller Agreement, except such as may be required under the
Act or the Rules and Regulations and Blue Sky or other state securities
laws, filings with respect to the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement and such other approvals or
consents as have been obtained.
(viii) There are no legal or governmental proceedings pending to which
the Sponsor or the Seller is a party or of which any property or assets of the
Sponsor or the Seller is the subject, and no such proceedings are to the best of
such counsel's knowledge threatened or contemplated by governmental authorities
against the Sponsor, the Seller or the Trust, that, (A) are required to be
disclosed in the Registration Statement or (B) (i) assert the invalidity against
the Sponsor of all or any part of any Sponsor Agreement or against the Seller of
all or any part of any Seller Agreement, (ii) seek to prevent the issuance of
the Securities, (iii) could materially adversely affect the Sponsor's or the
16
Seller's obligations under any Sponsor Agreement or any Seller Agreement, as
appropriate, or (iv) seek to affect adversely the federal or state income tax
attributes of the Securities.
G. The Underwriters shall have received from special counsel to the
Note Insurer, reasonably acceptable to the Underwriters, a favorable opinion
dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, to the effect that:
(i) The Note Insurer is a stock insurance company licensed and
authorized to transact insurance business and to issue, deliver and perform
its obligations under its surety bonds under the laws of the State of New
York. The Note Insurer (a) is a stock insurance company validly existing
and in good standing under the laws of the State of New York, (b) has the
corporate power and authority to own its assets and to carry on the
business in which it is currently engaged, and (c) is duly qualified and in
good standing as a foreign corporation under the laws of each jurisdiction
where failure so to qualify or to be in good standing would have a material
and adverse effect on its business or operations.
(ii) No litigation or administrative proceedings of or before any court,
tribunal or governmental body are currently pending or, to the best of such
counsel's knowledge, threatened against the Note Insurer, which, if
adversely determined, would have a material and adverse effect on the
ability of the Note Insurer to perform its obligations under the Note
Insurance Policy.
(iii) The Note Insurance Policy and the Indemnification Agreement
constitute the irrevocable, valid, legal and binding obligations of the
Note Insurer in accordance with their respective terms to the extent
provided therein, enforceable against the Note Insurer in accordance with
their respective terms, except as the enforceability thereof and the
availability of particular remedies to enforce the respective terms thereof
against the Note Insurer may be limited by applicable laws affecting the
rights of creditors of the Note Insurer and by the application of general
principles of equity.
(iv) The Note Insurer, as an insurance company, is not eligible for
relief under the United States Bankruptcy Code. Any proceedings for the
liquidation, conservation or rehabilitation of the Note Insurer would be
governed by the provisions of the Insurance Law of the State of New York.
(v) The statements set forth in the Prospectus Supplement under the
captions "The Insurer" and "The Policy" are true and correct, except that
no opinion is expressed as to financial statements or other financial
information included in the Prospectus relating to the Note Insurer and,
insofar as such statements constitute a summary of the Note Insurance
Policy, accurately and fairly summarize the terms of the Note Insurance
Policy.
(vi) The Note Insurance Policy constitutes an insurance policy within
the meaning of Section 3(a)(8) of the Securities Act.
17
(vii) Neither the execution or delivery by the Note Insurer of the
Note Insurance Policy or the Indemnification Agreement, nor the performance by
the Note Insurer of its obligations thereunder, will conflict with any provision
of the certificate of incorporation or the amended by-laws of the Note Insurer
nor, to the best of such counsel's knowledge, result in a breach of, or
constitute a default under, any agreement or other instrument to which the Note
Insurer is a party or by which any of its property is bound nor, to the best of
such counsel's knowledge, violate any judgment, order or decree applicable to
the Note Insurer of any governmental regulatory body, administrative agency,
court or arbitrator located in any jurisdiction in which the Note Insurer is
licensed or authorized to do business.
H. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Securities and such other related matters as
the Underwriters may require.
I. The Underwriters shall have received from counsel to the Trustee
and the Back-Up Servicer, a favorable opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly existing as
a banking corporation in good standing under the laws of the United States
of America.
(ii) The Trustee and the Back-Up Servicer each have full corporate
trust power and authority to enter into and perform its obligations under
the Indenture, as the case may be, including, but not limited to, its
obligation to serve in the capacity of Trustee and to execute, issue,
countersign and deliver the Notes.
(iii) The Indenture has been duly authorized, executed and delivered by
the Trustee and constitutes a legal, valid and binding obligation of the Trustee
enforceable against the Trustee, in accordance with its terms, except that as to
enforceability such enforcement may (A) be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(iv) The Notes have been duly authorized, executed and authenticated by
the Trustee on the date hereof on behalf of the Trust in accordance with
the Indenture.
(v) The execution, delivery and performance of the Indenture and the
Notes by the Trustee will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Trustee pursuant to the terms of the articles of
association or the by-laws of the Trustee or any statute, rule, regulation
or order of any governmental agency or body, or any court having
jurisdiction over the Trustee or its property or assets or any agreement or
instrument known to such counsel, to which the Trustee is a party or by
which the Trustee or any of its respective property or assets is bound.
18
(vi) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is necessary
in connection with the execution, delivery and performance by the Trustee
or the Back-Up Servicer of the Indenture and the Notes, as applicable.
J. The Underwriters shall have received from counsel to the Owner
Trustee a favorable opinion dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the effect
that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
United States of America.
(ii) The Owner Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Trust Agreement, as the
case may be, including, but not limited to, its obligation to serve in the
capacity of Owner Trustee and to execute, issue, countersign and deliver
the Certificate.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes a legal, valid and binding
obligation of the Owner Trustee enforceable against the Owner Trustee, in
accordance with its terms, except that as to enforceability such enforcement may
(A) be subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the rights of creditors generally and (B) be
limited by general principles of equity (whether considered in a proceeding at
law or in equity).
(iv) The Certificate has been duly authorized, executed and
authenticated by the Owner Trustee on the date hereof on behalf of the
Trust in accordance with the Trust Agreement.
(v) The execution, delivery and performance of the Trust Agreement and
the Certificate by the Owner Trustee will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Owner Trustee pursuant to the
terms of the articles of association or the by-laws of the Owner Trustee or
any statute, rule, regulation or order of any governmental agency or body,
or any court having jurisdiction over the Owner Trustee or its property or
assets or any agreement or instrument known to such counsel, to which the
Owner Trustee is a party or by which the Owner Trustee or any of its
respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing with,
any state or federal court or governmental agency or authority is necessary
in connection with the execution, delivery and performance by the Owner
Trustee of the Trust Agreement and the Certificate, as applicable.
K. Bank One, N.A. ("Bank One") shall have furnished to the Underwriters
--------
a certificate of Bank One, signed by one or more duly authorized officers of
Bank One, dated the Closing Date, as to the due authorization, execution and
--------
delivery of the Indenture and the Sale and Servicing Agreement by Bank One and
--------
the acceptance by the Trustee of the trust created
19
thereby and the due execution and delivery of the Notes by the Trustee
thereunder and such other matters as the Underwriters shall reasonably request.
L. Bankers Trust (Delaware) ("Bankers") shall have furnished to the
-------
Underwriters a certificate of Bankers, signed by one or more duly authorized
officers of Bankers, dated the Closing Date, as to the due authorization,
execution and delivery of the Trust Agreement by Bankers and the acceptance by
the Owner Trustee of the trust created thereby and the due execution and
delivery of the Certificate by the Owner Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
M. The Indemnification Agreement shall have been executed and
delivered, in which the Note Insurer shall represent, among other
representations, that (i) the information under the captions, "The Insurance
Policy" in the section entitled "Summary", "The Policy" and "The Insurer" in the
Prospectus Supplement was approved by the Note Insurer and does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) there has been no change in the
financial condition of the Note Insurer since September 30, 1998, which would
have a material adverse effect on the Note Insurer's ability to meet its
obligations under the Note Insurance Policy.
N. The Note Insurance Policy shall have been issued by the Note Insurer
and shall have been duly countersigned by an authorized agent of the Note
Insurer, if so required under applicable state law or regulation.
O. The Class A-1 Notes shall have been rated "A-1+" by Standard &
Poor's Ratings Services ("S&P") and "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and the Class A-2 Notes, the Class A-3 Notes, and the Class A-4
Notes shall have been rated AAA by S&P and Aaa by Moody's.
P. The Underwriters shall have received copies of letters dated as of
the Closing Date, from S&P and Moody's stating the current ratings of the Notes
as set forth in Section O above.
Q. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Notes.
R. All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such other information, opinions, certificates and documents as they
may reasonably request in writing.
S. The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the rules and regulations under
the Act and Section 2 hereof, and prior to the Closing Date, no stop order
suspending the effectiveness of the
20
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or shall be contemplated by the Commission or
by any authority administering any state securities or Blue Sky law.
T. On the Closing Date the Underwriters shall have received from
PricewaterhouseCoopers LLP a letter dated as of the Closing Date, in the form
heretofore agreed to.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to both of the Companies at any time
at or prior to the Closing Date, and such termination shall be without liability
of any party to any other party except as provided in Section 8 and (ii) the
provisions of Section 8, the indemnity set forth in Section 9, the contribution
provisions set forth in Section 9 and the provisions of Sections 12 and 15 shall
remain in effect.
Section 8. Payment of Expenses. The Seller agrees to pay the
-------------------
following expenses incident to the performance of the Companies' obligations
under this Agreement, (i) the filing of the Registration Statement and all
amendments thereto, (ii) the duplication and delivery to the Underwriters, in
such quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the Notes, (iv) the
fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters and
special counsel to the Seller, (v) the fees and disbursements of
PricewaterhouseCoopers LLP, accountants of the Companies, (vi) the qualification
of the Notes under securities and Blue Sky laws and the determination of the
eligibility of the Notes for investment in accordance with the provisions
hereof, including filing fees and the fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, counsel to the Underwriters, in connection therewith and in connection with
the preparation of any Blue Sky survey, (vii) the printing and delivery to the
Underwriters in such quantities as the Underwriters may reasonably request, of
copies of the Registration Statement and Prospectus and all amendments and
supplements thereto, and of any Blue Sky survey, (viii) the duplication and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the other transaction documents, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Notes, (x) the fees and expenses of the Trustee and its counsel, the fees and
expenses of the Owner Trustee and its counsel and (xi) the fees and expenses of
the Note Insurer and its counsel.
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 7, the Companies shall reimburse the
Representative for all reasonable third-party out-of-pocket expenses, including
the reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, the
Representative's counsel.
Section 9. Indemnification. A. (x) The Sponsor agrees to indemnify
---------------
and hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of the Securities Act or the Exchange Act, from
and against any and all loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Notes), to
which the Underwriters or any such controlling person may become subject, under
the Securities Act or
21
the Exchange Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus, (ii) 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, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Sponsor Offering Materials (other than the
Registration Statement) or (iv) the omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and shall reimburse the Underwriters and each such
controlling person promptly upon demand for any documented legal or documented
other expenses reasonably incurred by the Underwriters or such controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the foregoing indemnity with respect to any
-------- -------
untrue statement contained in or omission from the Prospectus shall not inure to
the benefit of the Underwriters if the Sponsor shall sustain the burden of
proving that the person asserting against the Underwriters the loss, liability,
claim, damage or expense purchased any of the Notes which are the subject
thereof and was not sent or given a copy of the appropriate Prospectus (or the
appropriate Prospectus as amended or supplemented) (the term Prospectus as used
in this clause shall not include documents incorporated by reference thereto),
if required by law, at or prior to the written confirmation of the sale of such
Notes (unless such Prospectus is amended or supplemented after the Prospectus
has been delivered pursuant to Rule 424(b)) to such person and the untrue
statement contained in or omission from such preliminary prospectus was
corrected in the appropriate Prospectus (or the appropriate Prospectus as
amended or supplemented).
(y) The Seller agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls the Underwriters within the meaning of the
Securities Act or the Exchange Act, from and against any and all loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Notes), to which the Underwriters or any
such controlling person may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Seller Offering Materials
or (ii) the omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and shall
reimburse the Underwriters and each such controlling person promptly upon demand
for any documented legal or documented other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the foregoing
-------- -------
indemnity with respect to any untrue statement contained in or omission from a
prospectus shall not inure to the benefit of the Underwriters if the Seller
shall sustain the burden of proving that the person asserting against the
Underwriters the loss, liability, claim, damage or expense purchased any of the
Notes which are the subject thereof and was not sent or given a copy of the
appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented) (the term Prospectus as used in this clause shall not include
documents incorporated by reference thereto), if required by law, at or prior to
the written confirmation of the sale of such Notes to such person
22
and the untrue statement contained in or omission from such preliminary
Prospectus was corrected in the appropriate Prospectus (or the appropriate
Prospectus as amended or supplemented).
The foregoing indemnity agreement is in addition to any liability
which the Sponsor or the Seller may otherwise have to the Underwriters or any
controlling person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not jointly
indemnify and hold harmless the Sponsor and the Seller, the directors and the
officers of the Sponsor who signed the Registration Statement, and each person,
if any, who controls the Sponsor or the Seller within the meaning of the
Securities Act or the Exchange Act against any and all loss, claim, damage or
liability, or any action in respect thereof, to which the Sponsor, the Seller or
any such director, officer or controlling person may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact relating to such
Underwriter contained in the Underwriter Information or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and shall reimburse the Sponsor or
the Seller, as the case may be, promptly on demand, and any such director,
officer or controlling person for any documented legal or other documented
expenses reasonably incurred by the Sponsor or the Seller, or any director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability
which the Underwriters may otherwise have to the Sponsor or the Seller or any
such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
9 of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 9, promptly notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
-------- -------
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party, unless such indemnified party reasonably objects to such assumption on
the ground that there may be legal defenses available to it which are different
from or in addition to those available to such indemnifying party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, except to the
23
extent provided in the next following paragraph, the indemnifying party shall
not be liable to the indemnified party under this Section 9 for any fees and
expenses of counsel subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Representative, if the indemnified
parties under this Section 9 consist of the Underwriters or any of their
controlling persons, or by the Companies, if the indemnified parties under this
Section 9 consist of either of the Companies or any of the Companies' directors,
officers or controlling persons, but in either case reasonably satisfactory to
the indemnified party.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9A and B, shall use its best efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which such indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
Notwithstanding the foregoing, if (x) the indemnified party has made a
proper request to the indemnifying party for the payment of the indemnified
party's legal fees and expenses, as permitted hereby, and (y) such request for
payment has not been honored within thirty days, then, for so long as such
request thereafter remains unhonored, the indemnifying party shall be liable for
any settlement entered into by the indemnified party whether or not the
indemnifying party consents thereto.
24
D. Each Underwriter agrees to deliver to the Companies no later than
the date prior to the date on which the Form 8-K is required to be filed
pursuant to Section 2(ii) hereof with a copy of its Derived Information (defined
-------------------
below) for filing with the Commission on Form 8-K.
E. Each Underwriter agrees, assuming all Company-Provided Information
----------------------------
(defined below) is accurate and complete in all material respects, to severally
and not jointly indemnify and hold harmless the Sponsor and the Seller, each of
the Sponsor's and the Seller's officers and directors and each person who
controls the Sponsor or the Seller within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information provided by such Underwriter,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that in no case shall any Underwriter be responsible for any amount in excess of
the underwriting discount applicable to the Notes purchased by such Underwriter.
The obligations of each of the Underwriters under this Section 9E shall be in
addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section 9C shall be equally applicable to
this Section 9E.
F. For purposes of this Section 9, the term "Derived Information"
means such portion, if any, of the information delivered to the Sponsor or the
Seller pursuant to Section 9D for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral term
sheets, Structural term sheets or Computational Materials (as
such terms are interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to
the Underwriters by the Sponsor or the Seller concerning the Receivables
comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term
25
"Collateral term sheet" as used herein includes any subsequent Collateral term
sheet that reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "▇▇▇▇▇▇ letter" and together with the PSA Letter, the "No-Action
Letters") of ▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
G. If the indemnification provided for in this Section 9 shall for
any reason be unavailable to hold harmless an indemnified party under Section 9A
or B in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Sponsor or the
Seller 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 Sponsor or the Seller on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative benefits of the Underwriters and the Sponsor or the
Seller shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Sponsor or the Seller
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Sponsor or the Seller or by one of
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission
and other equitable considerations.
The Sponsor, the Seller and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 9G were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 9G shall be deemed to include, for purposes of this Section 9G, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of the Sponsor and/or
the Seller, each officer of the Sponsor who signed the Registration Statement,
and each person, if any, who controls the Sponsor and/or the Seller within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Sponsor.
26
In no case shall any Underwriter be responsible for any amount in
excess of the underwriting discount applicable to the Notes purchased by such
Underwriter hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
H. The Underwriters severally confirm that the information set forth
(i) in the Prospectus Supplement relating to market making and (ii) under the
caption "Underwriting" in the Prospectus Supplement, together with the Derived
Information, is correct and constitutes the only information furnished in
writing to the Sponsor or the Seller by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
Section 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters participating in the public offering of the Notes shall fail
at the Closing Date to purchase the Notes which it is obligated to purchase
hereunder (the "Defaulted Securities"), then the non-defaulting Underwriter
shall have the right, within 24 hours thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth. If, however, the
Underwriter have not completed such arrangements within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Notes to be purchased
pursuant to this Agreement, the non-defaulting Underwriter shall be
obligated to purchase the full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Notes to be purchased pursuant
to this Agreement, this Agreement shall terminate, without any liability on
the party of the non- defaulting Underwriter.
No action taken pursuant to this Section shall relieve the defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by either Underwriter as set forth in this
Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 11. Termination. This Agreement shall be subject to
-----------
termination in the absolute discretion of the Representative, by notice given to
the Sponsor and the Seller prior to delivery of and payment for the Notes if
prior to such time (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Trust,
the Sponsor or the Seller which, in the reasonable judgment of the
Representative, materially impairs the investment quality of the Notes or makes
it impractical or inadvisable to market the Notes; (ii) the Notes have been
placed on credit watch by S&P or ▇▇▇▇▇'▇ with negative implications; (iii)
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers National Market System shall have been
27
suspended or limited, or minimum prices shall have been established on such
exchange or market system; (iv) a banking moratorium shall have been declared by
either Federal or New York State authorities; or (v) there shall have occurred
any outbreak or material escalation of hostilities or other calamity or crisis,
the effect of which makes it, in the reasonable judgment of the Representative,
impractical or inadvisable to proceed with the completion of the sale and
payment for the Notes. Upon such notice being given, the parties to this
Agreement shall (except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations under
this Agreement.
Section 12. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Companies submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Representative or controlling
person of the Representative, or by or on behalf of the Companies or any
officers, directors or controlling persons and shall survive delivery of any
Notes to the Representative or any controlling person.
Section 13. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to:
The Underwriters: Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Sponsor: AmeriCredit Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Seller: AFS Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 14. Parties. This Agreement shall inure to the benefit of and
-------
be binding upon the Representative and the Companies, and their respective
successors or assigns. Nothing expressed or mentioned in this Agreement is
intended nor shall it be construed to give any person, firm or corporation,
other than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Section 9 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision herein contained.
This Agreement and all conditions
28
and provisions hereof are intended to be for the sole and exclusive benefit of
the parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives (to the extent
of their rights as specified herein and therein) and except as provided above
for the benefit of no other person, firm or corporation. No purchaser of Notes
from the Representative shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 16. Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 17. Headings. The headings herein are inserted for
--------
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
29
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Sponsor and the Seller in
accordance with its terms.
Very truly yours,
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Treasurer
AFS FUNDING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Authorized Signatory
[Underwriting Agreement]
30
Schedule 1
Underwriting
Purchase Price (excluding accrued interest)
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
---------------- ----------------- --------------- ---------------
Credit Suisse 99.840% 99.760% 99.724% 99.659%
First Boston
Chase Securities, 99.840% 99.760% 99.724% 99.659%
Inc.
Bear, ▇▇▇▇▇▇▇ & 99.840% 99.760% 99.724% 99.659%
Co. Inc.
NationsBanc 99.840% 99.760% 99.724% 99.659%
▇▇▇▇▇▇▇▇▇▇
Securities LLC
Notional Principal Amount
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
-------------- ---------------- -------------- -----------------
Credit $ 35,000,000 $ 58,750,000 $ 32,500,000 $ 48,750,000
Suisse
First Boston
Chase $ 35,000,000 $ 58,750,000 $ 32,500,000 $ 48,750,000
Securities,
Inc.
Bear, $ 35,000,000 $ 58,750,000 $ 32,500,000 $ 48,750,000
▇▇▇▇▇▇▇ &
Co. Inc.
NationsBanc $ 35,000,000 $ 58,750,000 $ 32,500,000 $ 48,750,000
---------------- ---------------- ---------------- ----------------
▇▇▇▇▇▇▇▇▇▇
Securities
LLC
---------------- ---------------- ---------------- ----------------
TOTAL $140,000,000 $235,000,000 $130,000,000 $195,000,000
---------------- ---------------- ---------------- ----------------
31