$786,800,000
ANRC AUTO OWNER TRUST 1999-A
$125,000,000 6.16625% ASSET-BACKED NOTES, CLASS A-1
$314,000,000 6.54% ASSET-BACKED NOTES, CLASS A-2
$196,000,000 6.75% ASSET-BACKED NOTES, CLASS A-3
$151,800,000 6.94% ASSET-BACKED NOTES, CLASS A-4
AUTONATION RECEIVABLES CORPORATION
UNDERWRITING AGREEMENT
________________________________________________________________October 14, 1999
Chase Securities Inc.,
as Representative of the Several Underwriters
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. AutoNation Receivables Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
cause ANRC Auto Owner Trust 1999-A (the "Trust") to issue and sell $125,000,000
aggregate principal amount of 6.16625% Asset-Backed Notes, Class A-1 (the "Class
A-1 Notes"), $314,000,000 aggregate principal amount of 6.54% Asset- Backed
Notes, Class A-2 (the "Class A-2 Notes"), $196,000,000 aggregate principal
amount of 6.75% Asset-Backed Notes, Class A-3 (the "Class A-3 Notes") and
$151,800,000 aggregate principal amount of 6.94% Asset-Backed Notes, Class A-4
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Notes"). The Notes will be issued pursuant
to an Indenture, to be dated as of October 1, 1999 (the "Indenture"), between
the Trust and The Chase Manhattan Bank, a New York banking corporation as
indenture trustee (in such capacity, the "Indenture Trustee").
2.
3. The assets of the Trust will include, among other things, a pool of motor
vehicle retail installment sales contracts (the "Contracts"), all of which are
secured by new and/or used automobiles and/or light-duty trucks, all monies due
on the Contracts or received thereunder after the Cut-Off Date, such Contracts
to be sold to the Trust by the Company and to be serviced for the Trust by
AutoNation Financial Services Corp. ("AutoNation Financial Services" or, in its
capacity as servicer, the "Servicer"). Capitalized terms used but not defined
herein have the meanings ascribed thereto in the Sale and Servicing Agreement,
to be dated as of October 1, 1999 (the "Sale and Servicing Agreement"), by and
among the Trust, the Company, AutoNation Financial Services, as Servicer and
Custodian and the Indenture Trustee or, if not defined therein, in the
Indenture, the Owner Trust Agreement or the Receivables Purchase Agreement, as
the case may be. As used herein, "Basic Documents" shall have the meaning
specified in the Sale and Servicing Agreement. The Company hereby agrees with
the several Underwriters named in Schedule A hereto (collectively, the
"Underwriters") as follows:
4.
5. Representations and Warranties of the Company and AutoNation Financial
Services Corp. The Company and AutoNation Financial Services, each with respect
to itself only, represent and warrant to, and agree with, the several
Underwriters that:
6.
(a) A registration statement on Form S-3 (No. 333-81615) relating to
the Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i)
has been declared effective under the Securities Act of 1933, as
amended (the "Securities Act"), and is not proposed to be amended or
(ii) is proposed to be amended by amendment or post-effective
amendment. If the Company does not propose to amend the registration
statement, and if any post-effective amendment to the registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent post-effective amendment
has been declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c) under the Securities Act ("Rule
462(c)"). For purposes of this Agreement, "Effective Time" means (i) if
the Company has advised Chase Securities Inc., as representative of the
several Underwriters (in such capacity, the "Representative"), that it
does not propose to amend the registration statement, the date and time
as of which the registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (ii) if the Company has advised the Representative that it proposes
to file an amendment or post-effective amendment to the regis-
tration statement, the date and time as of which the registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. "Effective
Date" means the date of the Effective Time. The registration statement,
as amended at the Effective Time, including all information (if any),
deemed to be a part of the registration statement as of the Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Securities
Act, is hereinafter referred to as the "Registration Statement". Any
preliminary prospectus and preliminary prospectus supplement included
in the Registration Statement which, as of the Effective Date, omits
the information (if any) deemed to be a part of the initial
Registration Statement as of such time pursuant to Rule 430A(b) is
hereinafter referred to collectively as the "Preliminary Prospectus".
The form of prospectus and prospectus supplement relating to the Notes,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) under the Securities Act ("Rule 424(b)") or, if no such
filing is required, as included in the Registration Statement, is
hereinafter referred to collectively as the "Prospectus". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Securities Act.
(a) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Securities Act and
the rules and regulations of the Commission (collectively, the "Rules
and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(ii) on the date of this Agreement, the Registration Statement
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) the Registration Statement and the Prospectus will conform, in
all respects to the requirements of the Securities Act and the Rules
and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits or will omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on the
Effective Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Securities Act and
the Rules and Regulations, (ii) neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) no additional registration
statement related to the Notes pursuant to Rule 462(b) has been or will
be
filed. The two preceding sentences do not apply to statements in, or
omissions from, the Registration Statement or the Prospectus based upon
(i) written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b), (ii) the information furnished to the Company
by the Insurer set forth under the heading "The Insurer" in, or
incorporated by reference in, the Prospectus and (iii) the information
furnished to the Company by the Insurer set forth under the heading
"The Insurance Policy" in the Prospectus.
(a) Each of the Company and AutoNation Financial Services has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus; and each of the Company and AutoNation Financial
Services is duly qualified to do business as a foreign corporation in
good standing in the State of Florida and in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification and in which the failure to so qualify,
taken in the aggregate, would have a material adverse effect on it.
(a) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained
or made by the Company, AutoNation Financial Services or the Trust for
the consummation of the transactions contemplated by this Agreement and
the Basic Documents in connection with the issuance of the Notes and
the Residual Interest Certificate and the sale by the Company of the
Notes, except such as have been obtained or will be obtained by the
Closing Date and made under the Securities Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), such as may be
required under state securities laws and the filing of any financing
statements required to perfect the Company's, the Trust's and the
Indenture Trustee's interest in the Contracts, which financing
statements will be filed in the appropriate offices on or prior to the
Closing Date (as such term is defined in Section 3).
(a) Neither the Company nor AutoNation Financial Services is in
violation of its Certificate of Incorporation or By-laws or is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to which
it is a party or by which it
or its properties are bound which could have a material adverse effect
on the ability of either the Company or AutoNation Financial Services
to perform its obligations contemplated herein or in the other Basic
Documents. The execution, delivery and performance of this Agreement
and the other Basic Documents by the Company and AutoNation Financial
Services, and the issuance of the Notes and the Residual Interest
Certificate and the sale by the Company of the Notes and the compliance
by the Company and AutoNation Financial Services with the terms and
provisions hereof and thereof will not, subject to obtaining any
consents or approvals as may be required under the securities or "blue
sky" laws of various jurisdictions, result in a conflict with, or
breach or violation of, any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or AutoNation Financial Services
or any of their respective properties, or any agreement or instrument
to which the Company or AutoNation Financial Services is a party or by
which the Company or AutoNation Financial Services is bound or to which
any of the properties of the Company or AutoNation Financial Services
is subject, or the Certificate of Incorporation or By-laws of the
Company and AutoNation Financial Services, except for conflicts,
violations, breaches and defaults which individually or in the
aggregate, would not be materially adverse to the Company or AutoNation
Financial Services or materially adverse to the Company's or AutoNation
Financial Services' ability to perform its obligations under this
Agreement or the Basic Documents, and the Company has full power and
authority to authorize the issuance of the Notes and the Residual
Interest Certificate and to sell the Notes as contemplated by this
Agreement, the Indenture and the Owner Trust Agreement, and each of the
Company and AutoNation Financial Services has full power and authority
to enter into this Agreement and the other Basic Documents and to
consummate the transactions contemplated hereby and thereby.
(a) On the Closing Date, the Company will have directed the Owner
Trustee, on behalf of the Trust, to authenticate and execute the
Residual Interest Certificate and, when delivered pursuant to the Owner
Trust Agreement, the Residual Interest Certificate will have been duly
issued and delivered and will constitute a valid and legally binding
obligation of the Trust, entitled to the benefits provided in the Owner
Trust Agreement and enforceable in accordance with its terms subject to
enforcement of remedies to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and laws affecting
creditors' rights and remedies generally, and the
general principals of equity, including principals of commercial
reasonableness and good faith and fair dealing, regardless of whether
the aforementioned is sought in a proceeding in law or in equity.
(a) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or
AutoNation Financial Services or any of their respective properties
that, if determined adversely to the Company or AutoNation Financial
Services, would be reasonably likely to individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business or results of operations of the Company or AutoNation
Financial Services, respectively, or would materially and adversely
affect the ability of the Company or AutoNation Financial Services to
perform its obligations under this Agreement or the other Basic
Documents to which it is a party, or which are otherwise material in
the context of the issuance and sale of the Notes or the issuance of
the Residual Interest Certificate; and no such actions, suits or
proceedings are to the Company's or AutoNation Financial Services'
knowledge, contemplated.
(a) As of the Closing Date, the representations and warranties of the
Company and AutoNation Financial Services contained herein and in the
other Basic Documents will be true and correct.
(a) This Agreement and each other Basic Document to which it is a party
has been duly authorized, executed and delivered by each of the Company
and AutoNation Financial Services.
(a) As of the Closing Date, the Company has directed the Owner Trustee,
on behalf of the Trust, to execute and issue the Notes and to sell the
Notes.
(a) The Company's assignment and delivery of the Contracts to the Trust
as of the Closing Date will vest in the Trust all of the Company's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(a) The Trust's assignment of the Contracts to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(a) The computer disk of the Contracts created as of September 30,
1999, and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an
identifying description of the Contracts that are listed on Exhibit A
to the Sale and Servicing Agreement.
(a) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the other
Basic Documents and the Notes and any other agreements contemplated
herein or therein shall have been paid or will be paid by the Company
at or prior to the Closing Date to the extent then due.
(a) The consummation of the transactions contemplated by this Agreement
and the other Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Company or AutoNation Financial Services pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument
under which the Company or AutoNation Financial Services is a debtor or
guarantor, except for conflicts, violations, breaches and defaults
which individually or in the aggregate, would not be materially adverse
to the Company or AutoNation Financial Services or materially adverse
to the Company's or AutoNation Financial Services' ability to perform
its obligations under this Agreement or the Basic Documents.
(a) The Company is not and, after giving effect to the issuance of the
Residual Interest Certificate and the offering and sale of the Notes
and the application of the proceeds thereof as described in the
Prospectus, will not be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
1. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters, and
the Underwriters agree, severally and not jointly, to purchase from the Company,
at a purchase price of, in the case of (i) the Class A-1 Notes, 99.875% of the
principal amount thereof; (ii) the Class A-2 Notes, 99.798143% of the principal
amount thereof; (iii) the Class A-3 Notes, 99.764353% of the principal amount
thereof; and (iv) the Class
A-4 Notes, 99.734524% of the principal amount thereof, in the respective
principal amounts of each Class of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
2.
3. The Company will deliver against payment of the purchase price, the Notes of
each Class in the form of one or more permanent global securities in definitive
form (the "Global Notes") deposited with the Indenture Trustee as custodian for
The Depository Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Notes shall be made by the Underwriters in
Federal (same day) funds by official check or checks or wire transfer to an
account in New York previously designated to the Representative by the Company
at a bank acceptable to the Representative at the offices of Weil, Gotshal &
Xxxxxx LLP, New York, New York, at 10:00 a.m., New York time, on October 22,
1999, or at such other time not later than seven full business days thereafter
as the Representative and the Company determine, such time being herein referred
to as the "Closing Date", against delivery to the Indenture Trustee as custodian
for DTC of the Global Notes representing all of the Notes. The Global Notes will
be made available for checking at the above office of Weil, Gotshal & Xxxxxx LLP
at least 24 hours prior to the Closing Date.
4.
5. The Company will deliver the Residual Interest Certificate to the above
office of Weil, Gotshal & Xxxxxx LLP on the Closing Date. The Residual Interest
Certificate so to be delivered will be in definitive form, in authorized
denominations and registered in the name of the Company and will be made
available for checking at the above office of Weil, Gotshal & Xxxxxx LLP at
least 24 hours prior to the Closing Date.
6.
7. Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto have
agreed that the Closing Date will be not later than October 22, 1999, unless
otherwise agreed to as described above.
8.
9. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public as set forth in the
Prospectus.
10.
11. Certain Agreements of the Company. The Company agrees with the several
Underwriters:
12.
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (1) (or, if
applicable and if consented to by the Representative, subparagraph (4))
of Rule 424(b) not later than the second business day following the
execution and delivery of this Agreement. The Company will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(a) The Company will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the
related prospectus, or the Registration Statement or the Prospectus,
and will not effect such amendment or supplementation without the
Representative's reasonable consent; and the Company will also advise
the Representative promptly of the effectiveness of the Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(a) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representative of
such event and will promptly prepare and file with the Commission
(subject to the Representative's prior review pursuant to Section
5(b)), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect
such compliance. Neither the Representative's consent to, nor the
Underwriters delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(a) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will cause the Trust to make generally
available to the Noteholders an earnings statement of the Trust
covering a period of at
least 12 months beginning after the Effective Date which will satisfy
the provisions of Section 11(a) of the Securities Act. For the purpose
of the preceding sentence, "Availability Date" means the 90th day after
the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date.
(a) The Company will furnish to the Representative copies of the
Registration Statement (including all exhibits), each Preliminary
Prospectus, and, so long as delivery of a prospectus relating to the
Notes is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representative reasonably
requests. The Prospectus shall be so furnished on or prior to 3:00
p.m., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time. All
other such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(a) The Company will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative
may reasonably designate and will continue such qualifications in
effect so long as required for the distribution of the Notes; provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation to do business, to file a general
consent to service of process in any such jurisdiction or subject
itself to taxation in any jurisdiction to which it is not subject.
(a) For a period from the date of this Agreement until the retirement
of the Notes (i) the Company will furnish to the Representative and,
upon request, to each of the other Underwriters, copies of each
certificate and the annual statements of compliance delivered to the
Indenture Trustee pursuant to Section 3.09 of the Indenture and
Sections 3.08 and 3.09 of the Sale and Servicing Agreement and the
annual independent certified public accountant's servicing reports
furnished to the Indenture Trustee pursuant to Section 3.10 of the Sale
and Servicing Agreement, by first-class mail as soon as practicable
after such statements and reports are furnished to the Indenture
Trustee, and (ii) such other forms of periodic certificates or reports
as may be delivered to the Indenture Trustee, the Owner Trustee or the
Noteholders un-
der the Indenture, the Sale and Servicing Agreement or the other Basic
Documents.
(a) So long as any Note is outstanding, the Company will furnish to the
Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Company to
the Noteholders, (ii) all documents filed or caused to be filed by the
Company with the Commission pursuant to the Exchange Act or any order
of the Commission thereunder and (iii) such other information in the
possession of the Company concerning the Trust as the Representative
from time to time may reasonably request.
(a) Subject to the provisions of Section 9 hereof, the Company will pay
all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees and other expenses (including
fees and disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale in jurisdictions that the
Representative may designate pursuant to Section 5(f) hereof and
determination of their eligibility for investment under the laws of
such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the officers and employees of the Underwriters and any
other expenses of the Underwriters in connection with attending or
hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the Preliminary Prospectuses and the
Prospectuses (including any amendments and supplements thereto).
(a) To the extent, if any, that the rating provided with respect to the
Notes by Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
Poor's", together with Moody's, the "Rating Agencies"), is conditioned
upon the furnishing of documents or the taking of any other action by
the Company, the Company shall furnish such documents and take any such
other action.
(a) On or before the Closing Date, the Company and AutoNation Financial
Services shall annotate and indicate unambiguously in the computer
records of the Company and AutoNation Financial Services relating to
the Contracts to show the Trust's absolute ownership of the Contracts,
and from and after the Closing Date neither the Company nor AutoNation
Financial Serv-
ices shall take any action inconsistent with the Trust's ownership of
such Contracts, other than as permitted by the Basic Documents.
1. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the Company and AutoNation Financial Services herein, to the accuracy of the
statements of officers of the Company and AutoNation Financial Services made
pursuant to the provisions hereof, to the performance by the Company and
AutoNation Financial Services of their respective obligations hereunder and to
the following additional conditions precedent:
2.
(a) The Representative shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Xxxxxx
Xxxxxxxx, LLP, in form and substance satisfactory to the Representative
and counsel for the Underwriters, confirming that they are independent
public accountants within the meaning of the Securities Act and the
applicable Rules and Regulations and stating in effect that (i) they
have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Trust, AutoNation Financial Services and the Company) set forth in
the Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Trust, AutoNation
Financial Services and the Company, excluding any questions of legal
interpretation, and (ii) they have performed certain specified
procedures with respect to the Contracts.
For purposes of this subsection (a), (i) if the Effective Time
is subsequent to the execution and delivery of this Agreement,
"Registration Statement" shall mean the registration statement as
proposed to be amended by the amendment or post-effective amendment to
be filed shortly prior to the Effective Time, including all information
(if any) deemed to be a part of the initial registration statement as
of such time pursuant to Rule 430A(b), and (ii) "Prospectus" shall mean
the prospectus included in the Registration Statement. All financial
statements and schedules included in material incor-
porated by reference into the Prospectus shall be deemed included in
the Registration Statement for purposes of this subsection.
(a) If the Effective Time is not prior to the execution and delivery of
this Agreement, the Effective Time shall have occurred not later than
10:00 p.m., New York time, on the date of this Agreement or such later
date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a). Prior to
the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Representative after due inquiry, shall be contemplated
by the Commission.
(a) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the
business, properties or financial condition of the Company, AutoNation
Financial Services or the Insurer which, in the judgment of a majority
in interest of the Underwriters (including the Representative),
materially impairs the investment quality of each Class of the Notes or
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for each Class of the Notes;
(ii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange; (iii) any banking moratorium declared by
Federal, Delaware or New York authorities; or (iv) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters (including the Representative), the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each
Class of the Notes.
(a) The Representative shall have received an opinion of Xxxx, Gotshal
& Xxxxxx LLP, special counsel to the Company and AutoNation Financial
Services, dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the effect
that:
(i) the Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its properties and conduct its
business, in each case as described in the Prospectus; the Company is
duly qualified to do business and is in good standing 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 and in good standing is not reasonably likely to
have a material adverse effect on the performance of its obligations
under the Basic Documents;
(i) AutoNation Financial Services has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business, in each case as described in the Prospectus;
AutoNation Financial Services is duly qualified to do business and is
in good standing 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 and in good standing is not
reasonably likely to have a material adverse effect on the performance
of its obligations under the Basic Documents;
(i) each of the direction by the Company to the Indenture Trustee to
authenticate the Notes and the direction by the Company to the Owner
Trustee to execute the Notes has been duly authorized by the Company
and, when the Notes have been duly executed and delivered by the Owner
Trustee and, when authenticated by the Indenture Trustee in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be duly and validly
issued and outstanding and will be entitled to the benefits of the
Indenture;
(i) this Agreement and each other Basic Document to which the Company
or AutoNation Financial Services is a party (A) has been duly
authorized by all necessary corporate action by the Company or
AutoNation Financial Services, as applicable, (B) has been duly and
validly executed and delivered by the Company or AutoNation Financial
Services, as applicable, and (C) constitutes the legal, valid and
binding agreement of the Company or AutoNation Financial Services, as
applicable, enforceable against the Company or AutoNation Xxxxx-
cial Services, as applicable, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights and remedies generally from time to time in effect, and subject,
as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing,
regardless of whether such enforceability is considered in a proceeding
in equity or at law, and except that rights to indemnification or
contribution thereunder may be limited by Federal and state securities
laws or public policy relating thereto;
(i) no Governmental Approval by any Governmental Authority is required
for the execution, delivery and performance by the Company of the Basic
Documents to which it is a party, for the execution, delivery and
performance by AutoNation Financial Services of the Basic Documents to
which it is a party or for the consummation of the transactions
contemplated by the Basic Documents, except (i) such Governmental
Approvals as have been obtained and made under the Securities Act, (ii)
such Governmental Approvals as may be required by state securities or
"blue sky" laws of any jurisdiction in connection with the offer and
sale of the Notes, as to which such counsel expresses no opinion, and
(iii) such Governmental Approvals specified in such opinion as have
already been obtained; where (i) the term "Applicable Laws" means the
laws, rules and regulations of the State of New York or the United
States; (ii) the term "Governmental Authority" means any legislative,
judicial, administrative or regulatory body of the State of New York or
the United States; and (iii) the term "Governmental Approval" means any
consent, approval, waiver, license, authorization or other action by or
filing with any Governmental Authority pursuant to Applicable Laws,
which are specified in such opinion;
(i) the execution, delivery and performance of this Agreement and the
other Basic Documents to which it is a party by the Company and the
execution, delivery and performance of this Agreement and the Basic
Documents to which it is a party by AutoNation Financial Services will
not conflict with or violate, 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 AutoNation Financial Services or the
Company pursuant to (i) the terms of the Certificate of
Incorporation or the By-Laws of either AutoNation Financial Services or
the Company or (ii) to the best of such counsel's knowledge and
information, any statute, rule, regulation or order of any Governmental
Authority or any material agreement or instrument known to such counsel
to which AutoNation Financial Services or the Company is a party or by
which AutoNation Financial Services or the Company or any of their
respective properties is bound, which, in either case would have a
material adverse effect on either AutoNation Financial Services or the
Company;
(i) no fact has come to the attention of such counsel which would lead
such counsel to believe that the Registration Statement or any
amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted 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
Registration Statement and the Prospectus complies in all material
respects with the requirements of the Securities Act and the rules and
regulations promulgated thereunder; and such counsel does not know of
any legal or governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial,
numerical, statistical and quantitative information contained in the
Registration Statement or the Prospectus;
(i) to the best knowledge of such counsel, there is no litigation,
proceeding or governmental investigation to which the Company or
AutoNation Financial Services is a party or overtly threatened before
any court, administrative agency or other tribunal having jurisdiction
over AutoNation Financial Services or the Company, (i) that are
required to be disclosed in the Registration Statement, (ii) asserting
the
invalidity of this Agreement, any other Basic Document or the Notes
(iii) seeking to prevent the issuance of the Notes or the consummation
of any of the transactions contemplated by this Agreement or the other
Basic Documents or (iv) which might materially and adversely affect the
performance by the Company or AutoNation Financial Services of its
obligations under, or the validity or enforceability of, this
Agreement, any other Basic Document or the Notes; and
(i) assuming that the Contracts are in substantially one of the forms
attached to such opinion, the Contracts are "chattel paper" as defined
in the UCC as in effect in the State of New York.
(a) The Representative shall have received an opinion of Xxxx, Gotshal &
Xxxxxx LLP, special counsel to the Company and AutoNation Financial Services,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the provisions of the Receivables Purchase Agreement are effective
to create a valid security interest under and as defined in Section
1-201(37) of the UCC as in effect in the State of New York in favor of
the Company in AutoNation Financial Services' rights in the Contracts
and the proceeds thereof (subject to Section 9-306 of the UCC as in
effect in the State of New York) as security for the obligations of
AutoNation Financial Services thereunder;
(i) the provisions of the Sale and Servicing Agreement are effective to
create a valid security interest under and as defined in Section
1-201(37) of the UCC as in effect in the State of New York in favor of
the Trust in the Company's rights in the Contracts and the proceeds
thereof (subject to Section 9-306 of the UCC as in effect in the State
of New York) as security for the obligations of the Company thereunder;
(i) the provisions of the Indenture are effective to create, in favor
of the Indenture Trustee, a valid security interest under and as
defined in Section 1-201(37) of the UCC as in effect in the State of
New York in the Trust's rights in the Contracts and the proceeds
thereof (subject to Section 9-306 of the UCC) as security for the
obligations of the Trust thereunder;
(i) the Owner Trust Agreement is not required to be qualified under the
Trust Indenture Act;
(i) the Indenture has been duly qualified under the Trust Indenture
Act;
(i) the Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified therein or
was included in the Registration Statement, and, such counsel is not
aware of any stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued. To the best
knowledge of such counsel, no proceedings for that purpose have been
instituted or overtly threatened by the Commission under the Securities
Act, and the Registration Statement and the Prospectus, and each
amendment thereof or supplement thereto, if any, as of their respective
effective or issue dates, complies as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations;
(i) assuming due authorization, execution and delivery by the Indenture
Trustee and the Owner Trustee, the Indenture constitutes the legal,
valid and binding agreement of the Trust, enforceable against the Trust
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights and remedies generally from
time to time in effect, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing, (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except that rights to indemnification or contribution thereunder
may be limited by Federal and state securities laws or public policy
relating thereto; and
(i) neither the Trust nor the Company is, and, after giving effect to
the issuance and sale of the Notes and the Residual Interest
Certificate and the application of the proceeds thereof, as described
in the Prospectus, neither the Trust nor the Company will be, an
"investment company" as defined in the Investment Company Act or a
company
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(a) The Representative shall have received an opinion of Xxxx, Gotshal & Xxxxxx
LLP, special tax counsel for the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that for Federal income tax purposes (i) the Notes
will be characterized as indebtedness, (ii) the Trust will not be classified as
an association (or publicly traded partnership) taxable as a corporation and
(iii) the statements set forth in the Prospectus under the headings
"Summary-ERISA Considerations", "ERISA Considerations", "Summary-Tax Status" and
"Material Federal Income Tax Consequences" to the extent such statements
constitute matters of law or legal conclusions with respect thereto, are correct
in all material respects.
(a) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative may
require, and the Company shall have furnished to such counsel such documents as
it may request for the purpose of enabling it to pass upon such matters.
(a) The Representative shall have received a certificate, dated the Closing
Date, of the Chairman of the Board, the President, any Vice-President or a
principal financial or accounting officer of each of the Company and AutoNation
Financial Services in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and warranties
of the Company or AutoNation Financial Services, as applicable, in this
Agreement are true and correct in all material respects; the Company or
AutoNation Financial Services, as applicable, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date in all material respects; the representations
and warranties of the Company or AutoNation Financial Services, as applicable,
in the Basic Documents are true and correct as of the dates specified in such
agreements in all material respects; the Company or AutoNation Financial
Services, as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such Basic Documents
at or prior to the Closing Date; no stop order suspending the effectiveness of
the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are contemplated by the
Commission; and, subsequent to the date of the Prospectus, there has been no
material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or otherwise), business,
properties or results of operations of the Company or AutoNation Financial
Services or their respective businesses except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(a) The Representative shall have received an opinion of Xxxxxxx, Xxxxxxxx &
Xxxx, counsel to the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to the Representative and counsel for the Underwriters, to
the effect that:
(i) the Indenture Trustee has been legally incorporated and, based upon
a certificate of good standing issued by the state in which
incorporated, is validly existing as a banking corporation in good
standing under the laws of the State of New York, and has the requisite
entity power and authority to execute and deliver the Basic Documents
to which the Indenture Trustee is a party and to perform its
obligations thereunder;
(i) with respect to the Indenture Trustee, the performance of its
obligations under the Basic Documents to which the Indenture Trustee is
a party and the consummation of the transactions contemplated thereby
do not require any consent, approval, authorization or order of, filing
with or notice to any court, agency or other governmental body, except
such as may be required under the securities laws of any state or such
as have been obtained, effected or given;
(i) with respect to the Indenture Trustee, the performance of its
obligations under the Basic Documents to which the Indenture Trustee is
a party and the consummation of the transactions contemplated thereby
will not result in: (a) any breach or violation of its certificate of
incorporation or bylaws or (b) any breach or violation of any statute
or regulation or, to the knowledge of such counsel, any order of any
court, agency or other governmental body;
(i) to the knowledge of such counsel, with respect to the Indenture
Trustee, there is no legal action, suit, proceeding or investigation
before any court, agency or other governmental body pending or
threatened against it which, either in one instance or in the
aggregate, draws into question the validity of any of the Basic
Documents to which the Indenture Trustee is a party, seeks to prevent
the consummation of any of the transactions contemplated by any of the
Basic Documents to which the Indenture Trustee is a party or would
impair materially its ability to perform its obligations under any of
the Basic Documents to which the Indenture Trustee is a party;
(i) each of the Basic Documents to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the Indenture
Trustee and, assuming the necessary authorization, execution and
delivery thereof by the other parties thereto, is a valid and legally
binding agreement under the laws of the State of New York, enforceable
thereunder against the Indenture Trustee in accordance with its terms;
and
(i) the Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(a) The Representative shall have received an opinion of Xxxxx, Xxxxxx & Xxxxxx,
counsel to the Owner Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative 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 State of Delaware;
(i) the Owner Trustee has the power and authority to execute, deliver
and perform its obligations under, the Owner Trust Agreement and, on
behalf of the Trust, under the Basic Documents to which the Trust is a
party, the Owner Trustee has duly authorized, executed and delivered
such Basic Documents and such Basic Documents (other than the Owner
Trust Agreement) constitute the legal, valid and binding obligation of
the Owner Trustee in accordance with their terms, except that certain
of such obligations may be enforceable solely against the Trust Estate,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights and remedies generally from time to time in effect, and subject,
as to enforceability, to gen-
eral principles of equity, including principles of commercial
reasonableness, good faith and fair dealing, (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except that rights to indemnification or contribution thereunder
may be limited by Federal and state securities laws or public policy
relating thereto;
(i) the Owner Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee;
(i) the execution and delivery by the Owner Trustee of the Owner Trust
Agreement and, on behalf of the Trust, of the other Basic Documents to
which it is a party and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a breach or
violation of, or constitute a default under the Certificate of
Incorporation or By-laws of the Owner Trustee; and
(i) the execution, delivery and performance by the Owner Trustee of the
Owner Trust Agreement and, on behalf of the Trust, of the other Basic
Documents to which it is a party do not require any consent, approval
or authorization of, or any registration or filing with, any Delaware
or United States Federal governmental authority having jurisdiction
over the banking or trust powers of the Owner Trustee, other than those
consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the
State of Delaware, which have been duly filed.
(a) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Trust, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing and in good
standing as a business trust under the Delaware Business Trust Act, 12
Del. C. ss.3801 et seq. (the "Delaware Act");
(i) the Trust has the power and authority under the Delaware Act and
the Owner Trust Agreement, and the Owner Trust Agreement authorizes the
Owner Trustee, to execute, deliver and perform its ob-
ligations under each Basic Document to which it is a party
and the Notes;
(i) assuming that the security interest created by the
Indenture in the Contracts has been duly created and has
attached, upon the filing of a financing statement with the
Secretary of State of the State of Delaware the Indenture
Trustee will have a perfected security interest in the Trust's
rights in such Contracts and the proceeds thereof that
constitute either accounts, chattel paper or general
intangibles, and such security interest will be prior to any
other security interest granted by the Trust that is perfected
solely by the filing of financing statements under the UCC as
in effect in the State of Delaware (the "Delaware UCC"),
excluding purchase money security interests unders Section
9-312(4) of the Delaware UCC and temporarily perfected
security interests in proceeds unders Section 9-306(3) of the
Delaware UCC;
(i) assuming that the Contracts are in substantially one of
the forms attached to such opinion, the Contracts are "chattel
paper" as defined in the UCC as in effect in the State of
Delaware;
(i) no re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such
security interest except for the filing of continuation
statements at five year intervals;
(i) under 12 Del. C. Section 3805(b), no creditor of any
holder of a certificate (including any creditor of the Company
in its capacity as holder of the Residual Interest
Certificate) shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect
to, the property of the Trust except in accordance with the
terms of the Owner Trust Agreement;
(i) assuming that such is the case for Federal tax purposes,
for Delaware state franchise and income tax purposes (A) the
Notes will be characterized as debt and (B) the Trust will not
be classified as an association (or publicly traded
partnership) taxable as a corporation; and
(i) the Owner Trust Agreement constitutes the legal, valid and
binding obligation of each of the Owner Trustee and the
Company, enforceable against each of them in accordance with
its terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law), except that
such counsel need not express an opinion with respect to
indemnification or contribution provisions which may be deemed
to be in violation of the public policy underlying any law or
regulation.
(a) The Representative shall have received an opinion of Xxxx, Gotshal & Xxxxxx
LLP, counsel to the Company, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, (i) with
respect to the characterization of the transfer of the Contracts by AutoNation
Financial Services to the Company and (ii) to the effect that should AutoNation
Financial Services become the debtor in a case under Title 11 of the United
States Code (the "Bankruptcy Code") and the Company would not otherwise properly
be a debtor in a case under the Bankruptcy Code, and if the matter were properly
briefed and presented to a court exercising bankruptcy jurisdiction, the court,
exercising reasonable judgment after full consideration of all relevant factors,
should not order, over the objection of the Noteholders, the substantive
consolidation of the assets and liabilities of the Company with those of
AutoNation Financial Services.
(a) The Representative shall have received evidence satisfactory to it and its
counsel that, on or before the Closing Date, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the state of
(i) Florida reflecting the transfer of the interest of AutoNation Financial
Services in the Contracts and the proceeds thereof to the Company and the
transfer of the interest of the Company in the Contracts and the proceeds
thereof to the Trust and (ii) Delaware reflecting the grant of the security
interest by the Trust in the Contracts and the proceeds thereof to the Indenture
Trustee.
(a) The Representative shall have received an opinion of Xxxx, Gotshal & Xxxxxx
LLP, special counsel to the Company, dated the Closing Date and satisfactory in
form and substance to the Representative and the counsel for the Underwriters to
the effect that (i) the provisions of the Indenture are effective to create a
valid security interest in favor of the Indenture Trustee, to secure payment of
the Notes, in all "securities entitlements" (as defined in Section 8-102(a)(17)
of the UCC as in effect in the State of New York) with
respect to "financial assets" (as defined in Section 8-102(a)(9) of the UCC as
in effect in the State of New York) now or hereafter credited to the Spread
Account (such securities entitlements, the "Securities Entitlements") and (ii)
no security interest of any other creditor of the Trust will be prior to the
security interest of the Indenture Trustee in such Securities Entitlements.
(a) Each Class of Notes shall have been rated in the highest rating category by
both Xxxxx'x or Standard & Poor's.
(a) The Representative shall have received a letter, dated the Closing Date, of
Xxxxxx Xxxxxxxx, LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than five days prior to such Closing Date for purposes of this
subsection.
(a) On or prior to the Closing Date, the Residual Interest Certificate shall
have been issued to the Company.
(a) The Representative shall either (i) be an addressee, together with the other
Underwriters, of each opinion rendered by Xxxx, Xxxxxxx & Xxxxxx LLP and each
other counsel for the Company to the Insurer or either Standard & Poor's or
Xxxxx'x in connection with the rating of any Class of the Notes or (ii) have
received from Weil, Gotshal & Xxxxxx LLP and each other counsel for the Company,
a letter dated the Closing Date to the effect that the Underwriters may rely
upon each opinion rendered by such counsel to the Insurer or either Standard &
Poor's or Xxxxx'x in connection with the rating of any Class of the Notes, as if
each such opinion were addressed to the Underwriters.
(a) The Representative shall have received an opinion of Xxxxx Xxxxx, P.A.,
special Florida counsel to the Company and AutoNation Financial Services, dated
the Closing Date, to the effect that:
(i) the financing statement on Form UCC-1 naming AutoNation Financial
Services as debtor is in appropriate form for filing in the relevant
filing office under the UCC as in effect in the State of Florida. Upon
the filing of such financing Statement in the relevant filing office,
the security interest in favor of the Company in the Contracts and
proceeds thereof will be perfected, and no other security interest
of any other creditor of AutoNation Financial Services will be equal or
prior to such security interest;
(i) the financing statement on Form UCC-1 naming the Company as debtor
is in appropriate form for filing in the relevant filing office under
the UCC as in effect in the State of Florida. Upon the filing of such
financing statement in the relevant filing office, the security
interest in favor of the Owner Trustee in the Contracts and proceeds
thereof will be perfected, and no other security interest of any other
creditor of the Company will be equal or prior to such security
interest; and
(i) assuming that such is the case for Federal tax purposes, for
Florida state franchise and Florida state income tax purposes (A) the
Notes will be characterized as debt and (B) the Trust will not be
classified as an association (or publicly traded partnership) taxable
as a corporation.
(a) The Representative shall have received an opinion of Xxxxx Xxxx, counsel to
the Insurer, dated the Closing Date, to the effect that:
(i) the Insurer is a stock insurance corporation, duly incorporated and
validly existing under the laws of the State of New York. The Insurer
is validly licensed and authorized to issue the Insurance Policy and
perform its obligations under the Insurance Policy in accordance with
the terms thereof, under the laws of the State of New York;
(i) the execution and delivery by the Insurer of the Insurance Policy
are within the corporate power of the Insurer, and each has been
authorized by all necessary corporate action on the part of the
Insurer; the Insurance Policy has been duly executed and is the legal,
valid and binding obligation of the Insurer enforceable in accordance
with its terms, except that the enforcement of the Insurance Policy may
be limited by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting creditors'
rights generally and by general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
(i) the Insurer is authorized to deliver the Insurance Agreement and
the Indemnification Agreement and, assuming due execution by the other
parties thereto, the Insurance Agreement and the Indemnification
Agreement have been duly executed and are the valid and binding
obligations of the Insurer enforceable in accordance with their terms,
except that the enforcement of the Insurance Agreement and the
Indemnification Agreement may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law) and, in the
case of the Indemnification Agreement, also subject to principles of
public policy limiting the right to enforce the indemnification
provisions contained therein insofar as such provisions relate to
indemnification for liabilities arising under the securities laws;
(i) no consent, approval, authorization or order of any state or
Federal court or governmental agency or body is required on the part of
the Insurer, the lack of which would adversely affect the validity or
enforceability of either the Insurance Policy, the Insurance Agreement
or the Indemnification Agreement; to the extent failure to comply with
applicable legal requirements would adversely affect validity or
enforceability of the Insurance Policy, the Insurance Policy form has
been filed with, and approved by, all governmental authorities having
jurisdiction over the Insurer in connection with such Insurance Policy;
(i) to the extent the Insurance Policy constitutes a security within
the meaning of Section 2(1) of the Securities Act, it is a security
that is exempt from the registration requirements of the Securities
Act; and
(i) the information set forth under the headings "Description of the
Insurance Policy" in the Prospectus and "Form of Note Guaranty
Insurance Policy" in Exhibit A to the Prospectus insofar as such
information constitutes a description of the Insurance Policy,
accurately summarizes such Insurance Policy.
(a) Each of the Basic Documents (originals or copies thereof, as appropriate)
shall have been duly executed and delivered to the Representative by the parties
thereto.
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
1. Indemnification and Contribution.
2.
(a) The Company and AutoNation Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any Preliminary Prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided
that neither the Company nor AutoNation Financial Services
will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company or AutoNation
Financial Services by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below, the information
furnished to the Company by the Insurer set forth under the heading
"The Insurer" in, or incorporated by reference in, the Prospectus and
the information furnished to the Company by the Insurer set forth under
the heading "The Insurance Policy" in the Prospectus; provided,
further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary
Prospectus, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes, to the extent that the
untrue statement or omission or alleged untrue statement or omission
was eliminated or remedied in the Prospectus, which Prospectus was
required to be delivered by such Underwriter under the Securities Act
to such person and was not so delivered if the Company or AutoNation
Financial Services had previously furnished copies thereof to such
Underwriter; and provided, further, that any payments by the Company
pursuant to this Section 7(a) shall be payable solely from amounts
received pursuant to clause (xii) of Section 4.03(a) of the Sale and
Servicing Agreement.
(a) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and AutoNation Financial Services against any
losses, claims, damages or liabilities to which the Company or
AutoNation Financial Services may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any Preliminary Prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representative specifically
for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or AutoNation Financial Services in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: (i) the statements in the
second to last paragraph of the cover page of the Prospectus concerning
the terms of the offering by the Underwriters; (ii) the concession and
reallowance figures appearing in the second paragraph under the heading
"Underwriting" in the Prospectus; (iii) the statements in the first
sentence of the fourth paragraph under the heading "Underwriting" in
the Prospectus; and (iv) the statements in the fifth paragraph
(concerning stabilizing and other activities) under the heading
"Underwriting" in the Prospectus.
(a) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof and after acceptance by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party if
indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(a) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(a) The obligations of the Company or AutoNation Financial Services
under this Section shall be in addition to any liability which the
Company or AutoNation Financial Services may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Securities Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company or AutoNation Financial Services, to each
officer of the Company and AutoNation Financial Services who has signed
the Registration Statement and to each person, if any, who controls the
Company or AutoNation Financial Services within the meaning of the
Securities Act.
1. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Notes that the Underwriters are obligated to purchase on such Closing Date,
the Representative may make arrangements satisfactory to the Company for the
purchase of such Notes by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the nondefaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Notes that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Notes that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to the Representative and the Company for the
purchase of such Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
2.
3. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AutoNation Financial Services or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter or the Company or
AutoNation Financial Services or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Notes by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, AutoNation Financial Services and the Underwriters pursuant to Section
7 shall remain in effect. If the purchase of the Notes by the Underwriters is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (ii), (iii) or (iv) of Section 6(c), the Company and AutoNation Financial
Services, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
4.
5. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or sent by facsimile and confirmed to
the Representative at Chase Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx (facsimile: (000) 000-0000) or, if
sent to the Company, will be mailed, delivered or sent by facsimile transmission
and confirmed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Attention: Xxxxxxxx X. Xxxx, President (facsimile: (000) 000-0000),
and if to AutoNation Financial Services, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx X. Xxxx, Vice President--Finance
and Treasurer (facsimile: (000) 000-0000); provided that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied and
confirmed to such Underwriter.
6.
7. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date which
is one year and one day after the payment in full of all securities issued by
the Company or by a trust for which the Company was the depositor which
securities were rated by any nationally recognized statistical rating
organization, together with all amounts due and owing to the Insurer under the
Basic Documents or any other transaction documents relating to any such
securities, it will not institute against, or join or intentionally cooperate
with any other person in instituting against, the Company or the Trust any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law.
8.
9. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
10.
11. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
12.
13. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original but all such counterparts shall
together constitute one and the same Agreement.
14.
15. Applicable Law; Submission to Jurisdiction.
16.
17. (a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
18.
19. (b) Each of the Company and AutoNation Financial Services hereby submits to
the nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
20.
21.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AutoNation Financial Services one of the counterparts hereof, whereupon it
will become a binding agreement among the Company, AutoNation Financial Services
and the several Underwriters in accordance with its terms.
Very truly yours,
AUTONATION RECEIVABLES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
AUTONATION FINANCIAL
SERVICES CORP.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Treasurer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
CHASE SECURITIES INC., acting on behalf of itself
and as the Representative of the several Underwriters
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Vice President
SCHEDULE A
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Underwriter Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
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Chase Securities Inc. $35,937,500 $90,275,000 $56,350,000 $43,642,500
First Union Securities, Inc. $35,937,500 $90,275,000 $56,350,000 $43,642,500
Bank One Capital Markets, Inc. $18,750,000 $47,100,000 $29,400,000 $22,770,000
Credit Suisse First Boston $18,750,000 $47,100,000 $29,400,000 $22,770,000
Bear, Xxxxxxx & Co. Inc. $15,625,000 $39,250,000 $24,500,000 $18,975,000
Total: $125,000,000 $314,000,000 $196,000,000 $151,800,000
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