EXHIBIT 1.1
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 1996-D
Class A-1 5.425% Money Market Backed Notes
Class A-2 Floating Rate Asset Backed Notes
Class A-3 6.10% Asset Backed Notes
6.30% Asset Backed Certificates
UNDERWRITING AGREEMENT
CS FIRST BOSTON CORPORATION
As Representative of the
Underwriters
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10055 November 13, 1996
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 Certificates. The Sponsor has
authorized the issuance and sale of $57,500,000 Class A-1 5.425% Money Market
Notes, $77,000,000 Class A-2 Floating Rate Asset Backed Notes, $58,500,000 Class
A-3 6.10% Asset Backed Notes (collectively, the "Notes") and $7,000,000 6.30%
Asset Backed Certificates (the "Certificates") (the Notes and the Certificates,
collectively, the "Securities"). The Notes are to be issued by AmeriCredit
Automobile Receivables Trust 1996-D (the "Trust") pursuant to an Indenture, to
be dated as of November 1, 1996 (the "Indenture"), between the Trust and LaSalle
National Bank, a national banking association, as indenture trustee (the
"Trustee") and as trust collateral agent. The Certificates are to be issued by
the Trust pursuant to a Trust Agreement, to be dated as of November 1, 1996,
between the Seller and Bankers Trust (Delaware), as owner trustee (the "Owner
Trustee"). The Securities evidence all of the beneficial ownership interests in
the assets of the Trust. The assets of the Trust will initially include a pool
of retail installment sale contracts secured by new or used automobiles and
light duty trucks (the "Initial Receivables") and certain monies due thereunder
on or after October 31, 1996 (the
"Initial Cutoff Date"). Additional retail installment sale contracts secured by
new or used automobiles and light duty trucks (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") and the Certificates will have the benefit of a
certificate insurance policy (the "Insurance Policies", together with the Note
Insurance Policy, the "Insurance Policies"), each issued by Financial Security
Assurance Inc., a monoline insurance corporation organized under the laws of New
York (the "Certificate Insurer").
In connection with the issuance of the Insurance Policies (i) the
Companies, the Trust and the Certificate Insurer will execute and deliver an
Insurance Agreement dated as of November 1, 1996 (the "Insurance Agreement") and
(ii) the Seller, the Underwriters and the Certificate Insurer will execute and
deliver an Indemnification Agreement dated as of November 1, 1996 (the
"Indemnification Agreement").
As used herein, the term "Sponsor Agreements" means the Sale and
Servicing Agreement dated as of November 1, 1996 among the Trust, the Sponsor,
as servicer, the Seller and LaSalle National Bank, a national banking
association, as trust collateral agent (the "Sale and Servicing Agreement"), the
Purchase Agreement between the Sponsor and the Seller dated as of November 1,
1996 (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 Securities are being purchased by the Underwriters named in
Schedule 1 hereto, and the Underwriters are purchasing, severally, only the
Securities set forth opposite their names in Schedule 1, except that the amounts
purchased by the Underwriters may change in accordance with Section 11 of this
Agreement. CS 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 Securities will be made by the Underwriters and
the Companies understand that the Underwriters propose to make a public offering
of the Securities for settlement on November 21, 1996, as the Underwriters deem
advisable.
Defined terms used herein shall have their respective meanings as
set forth in the Sale and Servicing Agreement.
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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. 33-98620) has (a) been
prepared by the Sponsor on such Form in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder, (b) been filed with the
Commission and (c) been declared effective by the Commission, and no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceeding for that purpose has been initiated or threatened, by the
Commission. Copies of such Registration Statement have been delivered by the
Sponsor to the Underwriters. There are no contracts or documents of the Sponsor
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement. The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the date on and time
at which the Registration Statement became effective, or the date on and the
time at which the most recent post-effective amendment to such Registration
Statement, if any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement referred to in the
preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Certificates. The term "Base Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus Supplement " means
the preliminary prospectus supplement dated November 7, 1996 and the prospectus
supplement dated the date hereof, both specifically relating to the Securities,
as both were filed with the Commission pursuant to Rule 424 of the Rules and
Regulations (together 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.
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(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 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 Securities, 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
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the Securities 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 it is likely to materially and adversely affect the
performance by the Sponsor of its obligations under, or the validity or
enforceability of, any Sponsor Agreement, in whole or in part or the Securities.
(viii) Each Sponsor Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Sponsor and each Sponsor Agreement constitutes, a valid and binding agreement of
the Sponsor, enforceable against the Sponsor in accordance with its respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of the Securities, and the execution,
delivery and performance of each Sponsor Agreement and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict with
or result in a breach of or violate any term or provision of or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, or other
5
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) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. is an independent public accountant
with respect to the Sponsor as required by the Securities Act and the Rules and
Regulations.
(xi) [Reserved]
(xii) 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 Securities, 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 Securities
by the Underwriters.
(xiii) 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.
(xiv) 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.
(xv) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of any Sponsor Agreement, the
Insurance Policies 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.
(xvi) 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.
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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 Securities 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, or the Seller 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
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 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
7
notification with respect to the suspension of the qualification of the
Securities 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 it 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
8
be bound or to which any of the property or assets of the Seller or any of its
subsidiaries may be subject, nor will such actions result in any violation of
the provisions of the articles of incorporation or by-laws of the Seller or any
law, statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Seller or any of their respective
properties or assets.
(ix) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. 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 Securities, 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 Securities 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 of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or other security interest (collectively, "Liens") other than Liens created by
the Sale and Servicing Agreement, and (b) the Seller will have the 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 Investment Company Act of 1940,
as amended (the "1940 Act"), as in effect on the date hereof.
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(xv) Each of the Securities, the Sale and Servicing Agreement, the
Purchase Agreement, the Trust Agreement, the Indemnification Agreement and the
Insurance Policies 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 Insurance
Policies 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 Certificates 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 Certificates 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 Securities 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's commitment to
purchase the Securities pursuant to this Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Sponsor and of
the Seller herein contained and shall be subject to the terms and conditions
herein set forth. The Sponsor agrees to instruct the Trust to issue the
Securities to the Underwriters, and the Underwriters agrees to purchase on the
date of issuance thereof. The purchase prices for the Securities shall be as the
Securities set forth on Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for,
and delivery of, any Securities to be purchased by the Underwriters shall be
made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, 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 November 21, 1996 (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
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the account designated by the Sponsor. Each of the Securities 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 Securities 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 Securities for sale to the public as set forth
in the Prospectus.
Section 6. Covenants of the Seller. Each of the Sponsor and the
Seller 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 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 Securities 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
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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 Securities 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's 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 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 Securities: (i) any amendment
to the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) Prospectus 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 Securities 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
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such qualifications in effect for as long as may be required for the
distribution of the Securities. The Seller will cause the filing of such
statements and reports as may be required by the laws of each jurisdiction in
which the Securities 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 Securities 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
Certificateholders and Noteholders pursuant to Section 5.10 of the Sale and
Servicing Agreement.
I. So long as any of the Securities 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
or Certificateholders 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 Securities 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 Securities 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 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 Securities by the rating agency or agencies that initially rate the
Securities are conditional upon the furnishing of documents or the taking of any
other actions by the Sponsor or
13
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 Securities 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 Securities 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
counsel for the Sponsor and the Seller, 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 Certificates and the Notes have
been duly authorized and, when executed, authenticated, countersigned and
delivered by the Trustee in accordance with the Trust Agreement, in the
case of the Certificates, and the Indenture, in the case of the Notes, 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
14
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 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 Investment Company Act of
1940, as amended.
(v) The direction by the Seller to the Owner Trustee to execute,
issue, countersign and deliver the Certificates has been duly authorized
and, when the Certificates are executed and authenticated by the Trustee
in accordance with the Trust Agreement and delivered and paid for pursuant
to this Agreement, they will be validly issued and outstanding and
entitled to the benefits provided by the Trust Agreement.
(vi) Immediately prior to the transfer of the Receivables by the
Seller to the Trust pursuant to the Sale and Servicing Agreement, the
Seller was the sole owner of all right, title and interest in the
Receivables and other property to be transferred to the Trust.
(vii) 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.
(viii) 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.
(ix) 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
"Summary of Terms Tax Status", "Summary of Terms - ERISA Considerations",
15
"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 such counsel and represent a fair
and accurate summary of the matters addressed therein, under existing law
and the assumptions stated therein.
(x) 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.
(xi) 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.
(xii) The conditions to the use by the Sponsor of a registration
statement on Form S-3 under the 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 Act or the Rules and Regulations thereunder
which have not been so filed.
(xiii) 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.
(xiv) 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.
(xv) 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, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of each of
the Seller, the Sponsor, the Servicer,
16
the Certificate 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 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
17
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 omits 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.,
in-house counsel of the Sponsor and the Seller, 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.
18
(iii) The direction by the Seller to the Owner Trustee to execute,
issue, countersign and deliver the Certificates 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, charge
or encumbrance 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, charge or encumbrance
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 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.
19
(viii) To such counsel's knowledge, 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 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
Certificate 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 Certificate 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 Certificate 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 Certificate Insurer,
which, if adversely determined, would have a material and adverse effect
on the ability of the Certificate Insurer to perform its obligations under
the Insurance Policies.
(iii) The Insurance Policies and the Indemnification Agreement
constitute the irrevocable, valid, legal and binding obligations of the
Certificate Insurer in accordance with their respective terms to the
extent provided therein, enforceable against the Certificate 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 Certificate Insurer may be limited by
applicable laws affecting the rights of
20
creditors of the Certificate Insurer and by the application of
general principles of equity.
(iv) The Certificate 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
Certificate 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 Policies" 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 Certificate Insurer
and, insofar as such statements constitute a summary of the Insurance
Policies, accurately and fairly summarize the terms of the Insurance
Policies.
(vi) The Insurance Policies constitute insurance policies within the
meaning of Section 3(a)(8) of the Act.
(vii) Neither the execution or delivery by the Certificate Insurer
of the Insurance Policies or the Indemnification Agreement, nor the
performance by the Certificate Insurer of its obligations thereunder, will
conflict with any provision of the certificate of incorporation or the
amended by-laws of the Certificate 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 Certificate 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 Certificate Insurer of any governmental regulatory body,
administrative agency, court or arbitrator located in any jurisdiction in
which the Certificate Insurer is licensed or authorized to do business.
H. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
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) Each of 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.
21
(ii) The Trustee and the Back-Up Servicer has 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.
(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
22
Trustee and to execute, issue, countersign and deliver the Certificates.
(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 Certificates have 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 Certificates 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 Certificates, as
applicable.
▇. ▇▇▇▇▇▇▇ National Bank ("LaSalle") shall have furnished to the
Underwriters a certificate of LaSalle, signed by one or more duly authorized
officers of LaSalle, dated the Closing Date, as to the due authorization,
execution and delivery of the Indenture and the Sale and Servicing Agreement by
▇▇▇▇▇▇▇ and the acceptance by the Trustee of the trusts created thereby and the
due execution and delivery of the Notes by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
L. 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 trusts created thereby and the due execution and
delivery of
23
the Certificates 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 Certificate Insurer shall represent, among other
representations, that (i) the information under the captions, "The Policies" in
the section entitled "Summary of Terms", "The Policies" and "The Insurer" in the
Prospectus Supplement was approved by the Certificate 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 Certificate Insurer since June 30, 1996, which
would have a material adverse effect on the Certificate Insurer's ability to
meet its obligations under the Insurance Policies.
N. The Insurance Policies shall have been issued by the Certificate
Insurer and shall have been duly countersigned by an authorized agent of the
Certificate 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, Class A-3 Notes and the Certificates 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
Securities as set forth in Section O above.
Q. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
counsel to the Sponsor and the Seller, 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 Certificates.
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
24
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be contemplated
by the Commission or by any authority administering any state securities or blue
sky law.
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 10 and the provisions of Sections 13 and 16
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 Securities, (iv)
the fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for the Underwriters and
special counsel to the Seller, (v) the fees and disbursements of Coopers &
▇▇▇▇▇▇▇, L.L.P., accountants of the Companies, (vi) the qualification of the
Securities under securities and Blue Sky laws and the determination of the
eligibility of the Securities for investment in accordance with the provisions
hereof, including filing fees and the fees and disbursements of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, 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 Securities, (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 Certificate 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the Representative's
counsel.
Section 9. Indemnification. A. (x) The Sponsor agrees to indemnify
and hold harmless the Underwriters and each person, if
25
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 Securities), 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 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
Securities 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 Securities 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 Securities), 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
26
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
Securities 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 Securities 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).
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 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.
27
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 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,
28
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.
Section 10. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Sponsor, the Seller and
the Underwriters (each, a "Contributing Party") shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by such Contributing Party (i)
in such proportion as is appropriate to reflect the relative benefits received
by such Contributing Party from the offering of the Securities or (ii) if the
allocation
29
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 such Contributing Party in
connection with the statements or omissions which resulted in the losses,
liabilities, claims, damages and expenses as well as any other relevant
equitable considerations; provided, however, that 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.
Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Contributing Party and the Contributing Parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission and other equitable considerations.
Notwithstanding the provisions of Section 9 or of this Section 10,
the Underwriters shall not be required to be responsible for any amount in
excess of the amount by which the total re-offering price at which the
Securities underwritten by it and distributed and offered to the public exceeds
the amount paid hereunder by the Underwriters for the Securities. For purposes
of this Section 10, 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.
The Companies and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 10 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 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Section 11. Default by One or More of the Underwriters. If one or
more of the Underwriters participating in the public offering of the Securities
shall fail at the Closing Date to purchase the Securities 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
30
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 Securities 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 Securities 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 11 shall relieve the
defaulting Underwriter form 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 11, 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 12. 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 Securities
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 Securities or
makes it impractical or inadvisable to market the Securities; (ii) the
Securities 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 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 Securities. 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.
31
Section 13. 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
Securities to the Representative or any controlling person.
Section 14. 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: CS First Boston Corporation
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Investment Banking
Department/Transactions
Advisory Group
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Sponsor: AmeriCredit Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Seller: AFS Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 15. 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 Sections 9 and 10
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or with respect to this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives (to the extent of their
32
rights as specified herein and therein) and except as provided above for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Representative shall be deemed to be a successor by reason merely of such
purchase.
SECTION 16. 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 17. 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 18. 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.
33
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: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Controller
AFS FUNDING CORP.
By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Controller
CONFIRMED AND ACCEPTED, as of
the date first above written:
CS FIRST BOSTON CORPORATION
Acting on its own behalf and
as Representative of the
Underwriters referred to in
the foregoing Agreement
By: _____________________________
Name:
Title: Authorized Signatory
[Underwriting Agreement]
Schedule 1
Underwriting
Purchase Price (excluding accrued interest)
-------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CERTIFICATES
------------- ------------- ------------- -------------
CS First Boston 100.000000% 100.000000% 100.000000% 99.875000%
Prudential 100.000000% 100.000000% 100.000000% 99.875000%
Notional Principal Amount
-------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CERTIFICATES
------------- ------------- ------------- -------------
CS First Boston 43,125,000.00 57,750,000.00 43,875,000.00 7,000,000.00
------------- ------------- ------------- ------------
Prudential 14,375,000.00 19,250,000.00 14,625,000.00 0.00
------------- ------------- ------------- ------------
TOTAL 57,500,000.00 77,000,000.00 58,500,000.00 7,000,000.00
Proceeds (excluding accrued interest)
-------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CERTIFICATES
------------- ------------- ------------- -------------
CS First Boston 43,125,000.00 57,750,000.00 43,854,433.59 6,991,250.00
Prudential 14,375,000.00 19,250,000.00 14,618,144.53 0.00
------------- ------------- ------------- -------------
TOTAL 57,500,000.00 77,000,000.00 58,472,578.13 6,991,250.00