EXHIBIT 1.1
EXECUTION COPY
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2001-1
Class A-1 4.8075% Asset Backed Notes
Class A-2 4.63% Asset Backed Notes
Class A-3 5.13% Asset Backed Notes
Class B 5.81% Asset Backed Notes
Class C 6.35% Asset Backed Notes
UNDERWRITING AGREEMENT
CHASE SECURITIES INC.
As Representative of the Underwriters
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 18, 2001
Ladies and Gentlemen:
AmeriCredit Financial Services, Inc., a corporation organized
and existing under the laws of Delaware (the "SPONSOR"), and AFS SenSub Corp., a
corporation organized and existing under the laws of Nevada (the "SELLER") (the
Sponsor and the Seller, collectively, the "COMPANIES"), agree with you as
follows:
Section 1. ISSUANCE AND SALE OF NOTES. The Sponsor has
authorized the issuance and sale of $175,000,000 Class A-1 4.8075% Asset Backed
Notes, $348,000,000 Class A-2 4.63% Asset Backed Notes, $304,750,000 Class A-3
5.13% Asset Backed Notes, $99,000,000 Class B 5.81% Asset Backed Notes and
$55,000,000 Class C 6.35% Asset Backed Notes (collectively, the "NOTES"). The
Notes are to be issued by AmeriCredit Automobile Receivables Trust 2001-1 (the
"TRUST") pursuant to an Indenture, to be dated as of April 18, 2001 (the
"INDENTURE"), between the Trust and Bank One, NA, a national banking
association, as indenture trustee (the "TRUSTEE") and as Trust Collateral Agent.
In addition to the Notes, the Trust will also issue $52,250,000 Class D Notes
(the "CLASS D NOTES") and $55,000,000 Class E Notes (the "CLASS E NOTES") issued
pursuant to the Indenture and an Asset Backed Certificate representing the
beneficial ownership interests in the Trust (the "CERTIFICATE") (the Notes, the
Class D Notes, the Class E Notes and the Certificate, collectively, the
"SECURITIES") pursuant to a Trust Agreement, dated as of March 26, 2001, as
amended and restated as of April 18, 2001 between the Seller and Bankers Trust
(Delaware), as owner trustee (the "OWNER TRUSTEE"). The assets of the Trust will
initially include a pool of retail installment sale contracts secured by new
or used automobiles, light duty trucks and vans (the "RECEIVABLES") and certain
monies due thereunder on or after April 18, 2001 (the "CUTOFF DATE").
As used herein, the term "SPONSOR AGREEMENTS" means the Sale
and Servicing Agreement dated as of April 18, 2001 among the Trust, the Sponsor,
as servicer, the Seller and Bank One, N.A., a national banking association, as
trust collateral agent (the "SALE AND SERVICING AGREEMENT"), the Purchase
Agreement between the Sponsor and the Seller dated as of April 18, 2001 (the
"PURCHASE AGREEMENT") and this Agreement; the term "SELLER AGREEMENTS" means the
Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement and
this Agreement.
The Notes are being purchased by the Underwriters named in
Schedule 1 hereto, and the Underwriters are purchasing, severally, only the
Notes set forth opposite their names in Schedule 1, except that the amounts
purchased by the Underwriters may change in accordance with Section 10 of this
Agreement. Chase Securities Inc. is acting as representative of the Underwriters
and in such capacity, is hereinafter referred to as the "REPRESENTATIVE."
The offering of the Notes will be made by the Underwriters and
the Companies understand that the Underwriters propose to make a public offering
of the Notes for settlement on April 25, 2001 as the Underwriters deem
advisable.
It is anticipated that the Class D Notes and the Class E Notes
will be privately placed with institutional investors or otherwise. The
Certificate will be retained by the Seller.
Defined terms used herein shall have their respective meanings
as set forth in the Sale and Servicing Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES. A. The Sponsor
represents, warrants and agrees with the Underwriters, that:
(i) A Registration Statement on Form S-3 (No. 333-44924) 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
2
in the preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii) any
post-effective amendment filed and declared effective prior to the date of
issuance of the Notes. The term "BASE PROSPECTUS" means the prospectus included
in the Registration Statement. The term "PROSPECTUS SUPPLEMENT" means the
prospectus supplement dated the date hereof, specifically relating to the Notes,
as filed with the Commission pursuant to Rule 424 of the Rules and Regulations
(the "PROSPECTUS SUPPLEMENT"). The term "COMPANY OFFERING MATERIALS" means,
collectively, the Registration Statement, the Base Prospectus and the Prospectus
Supplement except for the Underwriter Information. The term "UNDERWRITER
INFORMATION" means the information set forth under the caption "Underwriting" in
the Prospectus Supplement and any information in the Prospectus Supplement
relating to any potential market-making, over-allotment or price stabilization
activities of the Underwriters. The term "PROSPECTUS" means, together, the Base
Prospectus and the Prospectus Supplement.
To the extent that the Underwriter either (i) has provided to
the Sponsor Collateral term sheets (as hereinafter defined) that such
Underwriter has provided to a prospective investor, the Sponsor has filed such
Collateral term sheets as an exhibit to a report on Form 8-K within two business
days of its receipt thereof, or (ii) has provided to the Sponsor Structural term
sheets or Computational Materials (each as defined below) that such Underwriter
has provided to a prospective investor, the Sponsor will file or cause to be
filed with the Commission a report on Form 8-K containing such Structural term
sheet and Computational Materials, as soon as reasonably practicable after the
date of this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Underwriter in final form.
(ii) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Company 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 Company
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 Company 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.
3
(iv) Since the respective dates as of which information is
given in the Company Offering Materials, or the Company Offering Materials as
amended and supplemented, (x) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of the
Sponsor and (y) the Sponsor has not entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Sponsor
that, in either case, would reasonably be expected to materially adversely
affect the interests of the holders of the Notes, otherwise than as set forth or
contemplated in the Company Offering Materials, as so amended or supplemented.
(v) The Sponsor is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (z) any
notification with respect to the suspension of the qualification of the Notes
for the sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(vi) The Sponsor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business or financial condition of the Sponsor and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Sponsor Agreement and to cause the Securities to be issued.
(vii) There are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or other
tribunal to which the Sponsor is a party or of which any of its properties is
the subject (i) which if determined adversely to it is likely to have a material
adverse effect individually, or in the aggregate, on the business or financial
condition of the Sponsor, (ii) asserting the invalidity of any Sponsor
Agreement, in whole or in part or the Securities, (iii) seeking to prevent the
issuance of the Securities or the consummation by the Companies of any of the
transactions contemplated by any Sponsor Agreement, in whole or in part, or (iv)
which if determined adversely is likely to materially and 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)
4
with respect to rights of indemnity under this Agreement, to limitations of
public policy under applicable securities laws.
(ix) The issuance and delivery of the Securities, and the
execution, delivery and performance of each Sponsor Agreement and the
consummation of the transactions contemplated hereby and thereby, do not and
will not conflict with or result in a breach of or violate any term or provision
of or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Sponsor is a party, by
which the Sponsor may be bound or to which any of the property or assets of the
Sponsor or any of its subsidiaries may be subject, nor will such actions result
in any violation of the provisions of the articles of incorporation or by-laws
of the Sponsor or any law, statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Sponsor or any of
its respective properties or assets.
(x) PricewaterhouseCoopers LLP is an independent public
accountant with respect to the Sponsor as required by the Securities Act and the
Rules and Regulations.
(xi) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Notes, or the
consummation by the Sponsor of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the Securities
and such consents, approvals, authorizations, registrations or qualifications as
may have been obtained or effected or as may be required under securities or
Blue Sky laws in connection with the purchase and distribution of the Notes by
the Underwriters.
(xii) The Sponsor possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Company 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.
(xiii) The Sponsor will not conduct its operations while any
of the Securities are outstanding in a manner that would require the Sponsor or
the Trust to be registered as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 ACT"), as in effect on the date
hereof.
(xiv) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of any Sponsor Agreement
and the Securities that are required to be paid by the Sponsor at or prior to
the Closing Date have been paid or will be paid at or prior to the Closing Date.
(xv) At the Closing Date, each of the representations and
warranties of the Sponsor set forth in any Sponsor Agreement will be true and
correct in all material respects.
(xvi) Any certificate signed by an officer of the Sponsor and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Notes shall
5
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 Company 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 Company
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 Company 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 Company Offering Materials, (x) there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory situation or
business prospects of the Seller and (y) the Seller has not entered into any
transaction or agreement (whether or not in the ordinary course of business)
material to the Seller that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Securities,
otherwise than as set forth or contemplated in the Company Offering Materials,
as so amended or supplemented.
(iv) The Seller is not aware of (x) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (y) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (z) any
notification with respect to the suspension of the qualification of the Notes
for the sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(v) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business or financial condition of the Seller and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Seller Agreement.
6
(vi) There are no actions, proceedings or investigations
pending before or threatened by any court, administrative agency or other
tribunal to which the Seller is a party or of which any of its properties is the
subject (i) which if determined adversely to it is likely to have a material
adverse effect individually, or in the aggregate, on the business or financial
condition of the Seller, (ii) asserting the invalidity of any Seller Agreement
in whole or in part, (iii) seeking to prevent the issuance of the Securities or
the consummation by the Seller of any of the transactions contemplated by any
Seller Agreement in whole or in part, or (iv) which if determined adversely is
likely to materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, any Seller Agreement in
whole or in part or the Securities.
(vii) Each Seller Agreement has been, or, when executed and
delivered will have been, duly authorized, validly executed and delivered by the
Seller and each Seller Agreement constitutes, a valid and binding agreement of
the Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(viii) The execution, delivery and performance of each Seller
Agreement by the Seller and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or result in a breach of
or violate any term or provision of or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Seller is a party, by which the Seller may be bound or
to which any of the property or assets of the Seller or any of its subsidiaries
may be subject, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of its respective properties or assets.
(ix) PricewaterhouseCoopers LLP is an independent public
accountant with respect to the Seller as required by the Securities Act and the
Rules and Regulations.
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Notes, or the
consummation by the Seller of the transactions contemplated by each Seller
Agreement except the registration under the Securities Act of the Securities and
such consents, approvals, authorizations, registrations or qualifications as may
have been obtained or effected or as may be required under securities or Blue
Sky laws in connection with the purchase and distribution of the Notes by the
Underwriters.
(xi) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Company Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating
7
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) The
Seller will have the power and authority to sell the Receivables to the Trust.
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.
(xiii) As of the Cutoff Date each of the Receivables will meet
the eligibility criteria described in the Prospectus.
(xiv) Neither the Seller nor the Trust created by the Trust
Agreement will conduct their operations while any of the Securities are
outstanding in a manner that would require the Seller or the Trust to be
registered as an "investment company" under the 1940 Act, as in effect on the
date hereof.
(xv) Each of the Securities, the Sale and Servicing Agreement,
the Purchase Agreement and the Trust Agreement 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 and
the Securities that are required to be paid by either the Seller at or prior to
the Closing Date have been paid or will be paid at or prior to the Closing Date.
(xvii) At the Closing Date, each of the representations and
warranties of the Seller set forth in any Seller Agreement will be true and
correct in all material respects.
(xviii) The direction by the Seller to the Owner Trustee to
execute, authenticate, issue and deliver the Certificate will be duly authorized
by the Seller and, assuming the Owner Trustee has been duly authorized to do so,
when executed, authenticated, issued and delivered by the Owner Trustee in
accordance with the Trust Agreement, the Certificate will be validly issued and
outstanding and will be entitled to the benefits of the Trust Agreement.
Any certificate signed by an officer of the Seller and
delivered to the Representative or the Representative's counsel in connection
with an offering of the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2B are made.
Section 3. PURCHASE AND SALE. The Underwriters' commitment to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein set forth. The
Sponsor agrees to instruct the Trust to issue the Notes to the Underwriters, and
the Underwriters agree to purchase on the date of issuance thereof. The purchase
prices for the Notes shall be as set forth on Schedule 1 hereto.
8
Section 4. DELIVERY AND PAYMENT. Payment of the purchase price
for, and delivery of, any Notes to be purchased by the Underwriters shall be
made at the office of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Americas, New
York, New York, or at such other place as shall be agreed upon by the
Representative and the Companies, at 10:00 a.m. New York City time on April 25,
2001 (the "CLOSING DATE"), or at such other time or date as shall be agreed upon
in writing by the Representative and the Companies. Payment shall be made by
wire transfer of same day funds payable to the account designated by the
Sponsor. Each of the Notes so to be delivered shall be represented by one or
more global certificates registered in the name of Cede & Co., as nominee for
The Depository Trust Company.
The Companies agree to have the Notes available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 12:00 P.M. New York City time on the business day prior to the
Closing Date.
Section 5. OFFERING BY UNDERWRITERS. It is understood that the
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
Section 6. COVENANTS OF THE COMPANIES. Each of the Companies
covenants with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by
the Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the 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 give notice to the Underwriters of
the filing of any amendment to the Registration Statement which is filed or
becomes effective prior to the 91st day following the Closing Date or any
supplement to the Prospectus or any amended Prospectus which is filed prior to
the 91st day following the Closing Date and to furnish the Underwriters with
copies thereof; to file promptly all reports and any global proxy or information
statements required to be filed by the Sponsor with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and, until the 91st day following the Closing Date; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or suspending the
use of the Prospectus; (ii) the suspension of the qualification of the Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat of any
proceeding for any such purpose; (iv) any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order or of any
order preventing or suspending the use of the Prospectus or suspending any such
qualification, the Sponsor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for
the Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
9
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) the Prospectus
and any amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the offering or sale of
the Notes and if at such time any events shall have occurred as a result of
which the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Sponsor shall notify the Underwriters
and, upon the Underwriters' request based upon the advice of counsel, shall file
such document and prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such compliance.
D. To cause to be filed promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Seller or the Underwriters, be
required by the Securities Act or requested by the Commission. Neither the
Underwriters' consent to nor their delivery of any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
E. To cause to be furnished to the Underwriters and counsel
for the Underwriters, prior to filing with the Commission, and to obtain the
consent of the Underwriters, which consent will not unreasonably be withheld,
for the filing of the following documents relating to the Notes: (i) any
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) the Prospectus
filed pursuant to Rule 424 of the Rules and Regulations.
F. To use its best efforts, in cooperating with the Sponsor
and the Underwriters, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Underwriters may designate, and maintain or cause to be maintained
such qualifications in effect for as long as may be required for the
distribution of the Notes. The Seller will cause the filing of such statements
and reports as may be required by the laws of each jurisdiction in which the
Notes have been so qualified.
G. The Seller will not, without the prior written consent of
the Representative, contract to sell any automobile receivables-backed
certificates, automobile receivables-backed notes or other similar securities
either directly or indirectly (as through the Sponsor) for a period of five (5)
business days after the later of the termination of the syndicate or the Closing
Date.
H. So long as the Notes shall be outstanding, the Seller shall
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as
10
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 of the Sale and Servicing Agreement with respect to the Servicer; and (iii)
the monthly reports furnished to the Noteholders pursuant to Section 5.9 of the
Sale and Servicing Agreement.
I. So long as any of the Notes are outstanding, the Seller
will furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year of the Trust, all documents required to be distributed to
Noteholders and other filings with the Commission pursuant to the Exchange Act,
or any order of the Commission thereunder with respect to any securities issued
by the Sponsor or the Seller that are (A) non-structured equity or debt offering
of the Sponsor or the Seller or (B) the Notes and (ii) from time to time, any
other information concerning the Sponsor or the Seller filed with any government
or regulatory authority which is otherwise publicly available, as the
Underwriters shall reasonably request in writing.
J. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
K. If, between the date hereof or, if earlier, the dates as of
which information is given in the Prospectus and the Closing Date, to the
knowledge of the Seller, there shall have been any material change, or any
development involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Sponsor or the Seller, the Seller will give prompt written
notice thereof to the Underwriters.
L. To the extent, if any, that the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes are conditional upon the furnishing of documents or the taking of any
other actions by the Sponsor or the Seller, the Seller shall use its best
efforts to furnish or cause to be furnished such documents and take any such
other actions.
Section 7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Notes pursuant to this
Agreement are subject to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Companies herein contained,
(ii) the accuracy of the statements of officers of the Companies made pursuant
hereto, (iii) the performance by the Companies of all of their respective
obligations hereunder, and the performance by the Companies of all of their
respective obligations under the Sponsor Agreements and the Seller Agreements
and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall have received the Sale and Servicing
Agreement, the Purchase Agreement, the Indenture, the Trust Agreement and the
Notes in form and
11
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 Xxxxx Xxxxxxxxxx
LLP, counsel for the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The issuance and sale of the Notes have been duly
authorized and, when executed, authenticated, countersigned and
delivered by the Trustee in accordance with the Indenture and delivered
and paid for pursuant to this Agreement, will be validly issued and
outstanding and will be entitled to the benefits of the Trust Agreement
and the Indenture, respectively.
(ii) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority is necessary
under the federal law of the United States or the laws of the State of
New York in connection with the execution, delivery and performance by
the Sponsor of the Sponsor Agreements and by the Seller of the Seller
Agreements, except such as may be required under the Act or the Rules
and Regulations and Blue Sky or other state securities laws, filings
with respect to the transfer of the Receivables to the Trust pursuant
to the Sale and Servicing Agreement and such other approvals or
consents as have been obtained.
(iii) Each Sponsor Agreement and each Seller Agreement
constitutes the legal, valid and binding obligation of the Sponsor or
the Seller, as appropriate, enforceable against each of the Sponsor or
the Seller, as appropriate, in accordance with their respective terms,
except that as to enforceability such enforcement may (A) be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally, (B) be
limited by general principles of equity (whether considered in a
proceeding at law or in equity) and (C) the enforceability as to rights
to indemnification may be subject to limitations of public policy under
applicable laws.
(iv) None of the Sponsor, the Seller nor the Trust is required
to be registered as an "investment company" under the 1940 Act, as
amended.
(v) The direction by the Seller to the Owner Trustee to
execute, issue, countersign and deliver the Certificate has been duly
authorized and, when the Certificate is executed and authenticated by
the Trustee in accordance with the Trust Agreement and delivered and
paid for, they will be validly issued and outstanding and entitled to
the benefits provided by the Trust Agreement.
(vi) The Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust Estate and has duly authorized such sale
and assignment to the Trustee by all necessary corporate action.
(vii) The Securities, the Sale and Servicing Agreement, the
Purchase Agreement and this Agreement each conform in all material
respects with the respective descriptions thereof contained in the
Registration Statement and the Prospectus.
12
(viii) The statements in the Base Prospectus under the
captions "Summary of Prospectus - Material Federal Income Tax
Consequences", "ERISA Considerations" and "Material Federal Income Tax
Consequences" and the statements in the Prospectus Supplement under the
captions "Material Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been reviewed by counsel
and represent a fair and accurate summary of the matters addressed
therein, under existing law and the assumptions stated therein.
(ix) The statements in the Base Prospectus under the caption
"Material Legal Aspects of the Automobile Loans" to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects.
(x) The Registration Statement is effective under the Act and
no stop order suspending the effectiveness of the Registration
Statement has been issued, and to the best of such counsel's knowledge
no proceeding for that purpose has been instituted or threatened by the
Commission under the Act.
(xi) The conditions to the use by the Sponsor of a
registration statement on Form S-3 under the Securities Act, as set
forth in the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus. There are no
contracts or documents which are required to be filed as exhibits to
the Registration Statement pursuant to the Securities Act or the Rules
and Regulations thereunder which have not been so filed.
(xii) The Registration Statement at the time it became
effective, and any amendments thereto at the time such amendment
becomes effective (other than the information set forth in the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the Rules and Regulations thereunder.
(xiii) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency
or body, or any federal court having jurisdiction over the Sponsor or
its properties or assets.
(xiv) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency
or body, or any federal court having jurisdiction over the Seller or
its properties or assets.
In addition, counsel shall state that such counsel has
participated in conferences with officers and other representatives of each of
the Seller, the Sponsor, the Servicer, the 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
13
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 Company 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 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 Company Offering
Materials contain any untrue statement of a material fact or omit to state any
material facts required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
14
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 Xxxxx Xxxxxx,
Esq., house counsel of the Companies, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware. The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Nevada. Each of the Sponsor and the Seller has full corporate power
to own its property or assets and to conduct its business as presently
conducted by it and as described in the Prospectus, and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property or assets requires such qualification or
where the failure to be so qualified would have a material adverse
effect on its condition (financial or otherwise).
(ii) Each Sponsor Agreement and each Seller Agreement has been
duly authorized, executed and delivered by authorized officers or
signers of the Sponsor or the Seller, as appropriate.
(iii) The direction by the Seller to the Trustee to execute,
issue, countersign and deliver the Notes has been duly authorized by
the Seller.
(iv) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any Lien upon
any of the property or assets of the Sponsor pursuant to the terms of
the certificate of incorporation or the by-laws of the Sponsor or any
statute, rule, regulation or order of any governmental agency or body
of the State of Delaware, or any Delaware state court having
jurisdiction over the Sponsor or its property or assets or any material
agreement or instrument known to such counsel to which the Sponsor is a
party or by which the Sponsor or any of its property or assets is
bound.
(v) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition of any Lien upon
any of the property or assets of the Seller pursuant to the terms of
the certificate of incorporation or the by-laws of the Seller or any
statute, rule, regulation or order of any governmental agency or body
of the State of Nevada, or any Nevada state court having jurisdiction
over the Seller or its property or assets or any material agreement or
instrument known to such counsel, to which the Seller is a party or by
which the Seller or any of its property or assets is bound.
15
(vi) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority of the State
of Delaware is necessary in connection with the execution, delivery and
performance by the Sponsor of any Sponsor Agreement except such as may
be required under the Securities Act or the Rules and Regulations and
Blue Sky or other state securities laws filings with respect to the
transfer of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement and such other approvals or consents as have been
obtained.
(vii) No authorization, approval, consent or order of, or
filing with, any court or governmental agency or authority of the State
of Nevada is necessary in connection with the execution, delivery and
performance by the Seller of any Seller Agreement, except such as may
be required under the Act or the Rules and Regulations and Blue Sky or
other state securities laws, filings with respect to the transfer of
the Receivables to the Trust pursuant to the Sale and Servicing
Agreement and such other approvals or consents as have been obtained.
(viii) There are no legal or governmental proceedings pending
to which the Sponsor or the Seller is a party or of which any property
or assets of the Sponsor or the Seller is the subject, and no such
proceedings are to the best of such counsel's knowledge threatened or
contemplated by governmental authorities against the Sponsor, the
Seller or the Trust, that, (A) are required to be disclosed in the
Registration Statement or (B) (i) assert the invalidity against the
Sponsor of all or any part of any Sponsor Agreement or against the
Seller of all or any part of any Seller Agreement, (ii) seek to prevent
the issuance of the Securities, (iii) could materially adversely affect
the Sponsor's or the 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 Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Securities and such other related
matters as the Underwriters may require.
H. The Underwriters shall have received from counsel to the
Trustee and the Back-Up Servicer, a favorable opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the State of New York.
(ii) The Trustee and the Back-Up Servicer each have full
corporate trust power and authority to enter into and perform its
obligations under the Indenture, as the case may be, including, but not
limited to, its obligation to serve in the capacity of Trustee and to
execute, issue, countersign and deliver the Notes.
(iii) The Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legal, valid and binding
obligation of the Trustee enforceable against the Trustee, in
accordance with its terms, except that as to enforceability such
16
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 and delivery and performance of the
Indenture and the Notes by the Trustee will not conflict with or result
in a violation of (a) any United States of America or State of New York
law or regulation governing the banking or trust powers of the Trustee
or (b) the articles of association or the by-laws of the Trustee.
(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.
I. The Underwriters shall have received from counsel to the
Owner Trustee a favorable opinion dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, to the
effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the United States of America.
(ii) The Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement, as the case may be, including, but not limited to, its
obligation to serve in the capacity of Owner Trustee and to execute,
issue, countersign and deliver the Certificate.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee enforceable against the Owner
Trustee, in accordance with its terms, except that as to enforceability
such enforcement may (A) be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the rights of creditors generally and (B) be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(iv) The Certificate has been duly authorized, executed and
authenticated by the Owner Trustee on the date hereof on behalf of the
Trust in accordance with the Trust Agreement.
(v) The execution, delivery and performance of the Trust
Agreement and the Certificate by the Owner Trustee will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Owner Trustee pursuant to the terms of the articles of association
or the by-laws of the Owner Trustee or any statute, rule, regulation or
order of any governmental agency or body, or
17
any court having jurisdiction over the Owner Trustee or its property or
assets or any agreement or instrument known to such counsel, to which
the Owner Trustee is a party or by which the Owner Trustee or any of
its respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or
filing with, any state or federal court or governmental agency or
authority is necessary in connection with the execution, delivery and
performance by the Owner Trustee of the Trust Agreement and the
Certificate, as applicable.
J. Bank One, NA ("BANK ONE") shall have furnished to the
Underwriters a certificate of Bank One, signed by one or more duly authorized
officers of Bank One, dated the Closing Date, as to the due authorization,
execution and delivery of the Indenture and the Sale and Servicing Agreement by
Bank One and the acceptance by the Trustee of the trust created thereby and the
due execution and delivery of the Notes by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
K. Bankers Trust (Delaware) ("BANKERS") shall have furnished
to the Underwriters a certificate of Bankers, signed by one or more duly
authorized officers of Bankers, dated the Closing Date, as to the due
authorization, execution and delivery of the Trust Agreement by Bankers and the
acceptance by the Owner Trustee of the trust created thereby and the due
execution and delivery of the Certificate by the Owner Trustee thereunder and
such other matters as the Underwriters shall reasonably request.
L. The Class A-1 Notes shall have been rated "A-1+" by
Standard & Poor's, a division of the XxXxxx-Xxxx Companies ("S&P"), "P-1" by
Xxxxx'x Investors Service ("XXXXX'X") and "F1+", by Fitch, Inc. ("Fitch") the
Class A-2 Notes and the Class A-3 Notes shall have been rated "AAA" by S&P,
"Aaa" by Moody's and "AAA", by Fitch, the Class B Notes shall have been rated
"AA" by S&P, "Aa3" by Xxxxx'x and "AA-", by Fitch, and the Class C Notes shall
have been rated "A" by S&P, "A3" by Xxxxx'x and "A", by Fitch.
M. The Underwriters shall have received copies of letters
dated as of the Closing Date, from S&P, Xxxxx'x and Fitch stating the current
ratings of the Notes as set forth in Section L above.
N. The Underwriters shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel to the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Notes.
O. 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.
P. 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
18
Section 2 hereof, and 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 shall be contemplated
by the Commission or by any authority administering any state securities or Blue
Sky law.
Q. On the Closing Date the Underwriters shall have received
from PricewaterhouseCoopers LLP a letter dated as of the Closing Date, in the
form heretofore agreed to.
R. The Underwriters shall have received from local counsel, in
the states where there is a concentration of 10% or more of the Receivables, an
opinion dated the Closing Date as to the perfection of security interests in
automobiles in such states.
If any condition specified in this Section 7 shall not have
been fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to both of the Companies at any time
at or prior to the Closing Date, and such termination shall be without liability
of any party to any other party except as provided in Section 8 and (ii) the
provisions of Section 8, the indemnity set forth in Section 9, the contribution
provisions set forth in Section 9 and the provisions of Sections 12 and 15 shall
remain in effect.
Section 8. PAYMENT OF EXPENSES. The Seller agrees to pay the
following expenses incident to the performance of the Companies' obligations
under this Agreement, (i) the filing of the Registration Statement and all
amendments thereto, (ii) the duplication and delivery to the Underwriters, in
such quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the Notes, (iv) the
fees and disbursements of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters and
special counsel to the Seller, (v) the fees and disbursements of
PricewaterhouseCoopers LLP, accountants of the Companies, (vi) the qualification
of the Notes under securities and Blue Sky laws and the determination of the
eligibility of the Notes for investment in accordance with the provisions
hereof, including filing fees and the fees and disbursements of Xxxxx Xxxxxxxxxx
LLP, counsel to the Underwriters, in connection therewith and in connection with
the preparation of any Blue Sky survey, (vii) the printing and delivery to the
Underwriters in such quantities as the Underwriters may reasonably request, of
copies of the Registration Statement and Prospectus and all amendments and
supplements thereto, and of any Blue Sky survey, (viii) the duplication and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the other transaction documents, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Notes and (x) the fees and expenses of the Trustee and its counsel, and the fees
and expenses of the Owner Trustee 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 Xxxxx Xxxxxxxxxx LLP, the
Representative's counsel.
Section 9. INDEMNIFICATIONA. . A. The Sponsor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriters within the
19
meaning of the Securities Act or the Exchange Act, from and against any and all
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which such 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 Company Offering Materials,
(ii) the omission or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) the omission or alleged omission to state in
the Company Offering Materials other than the Registration Statement 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 each Underwriter and each such controlling person promptly upon demand
for any documented legal or documented other expenses reasonably incurred by
such Underwriter 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 any Underwriter if the Sponsor
shall sustain the burden of proving that the person asserting against such
Underwriter the loss, liability, claim, damage or expense purchased any of the
Notes which are the subject thereof and was not sent or given a copy of the
appropriate Prospectus (or the appropriate Prospectus as amended or
supplemented) (the term Prospectus as used in this clause shall not include
documents incorporated by reference thereto), if required by law, at or prior to
the written confirmation of the sale of such Notes and prior to delivery of such
confirmation the Sponsor had furnished such Underwriter with a supplement to
such Prospectus (or Prospectus as amended or supplemented) correcting the untrue
statement in or omission from such Prospectus (or Prospectus as amended or
supplemented).
The foregoing indemnity agreement is in addition to any
liability which the Sponsor may otherwise have to the Underwriters or any
controlling person of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not
jointly indemnify and hold harmless the Sponsor, the directors and the officers
of the Sponsor who signed the Registration Statement, and each person, if any,
who controls the Sponsor 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, 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, 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 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.
20
The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to the Sponsor 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, 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
21
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.
D. Each Underwriter agrees to deliver to the Companies no
later than the date prior to the date on which the Form 8-K is required to be
filed pursuant to Section 2A (i) hereof with a copy of its Derived Information
(defined below) for filing with the Commission on Form 8-K.
E. (i) (i) Each Underwriter agrees, assuming all
Company-Provided Information (defined below) is accurate and complete in all
material respects, to severally and not jointly indemnify and hold harmless the
Sponsor, each of the Sponsor's officers and directors and each person who
controls the Sponsor within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of a material fact contained
in the Derived Information provided by such Underwriter, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that in no case shall
any Underwriter be responsible for any amount in excess of the underwriting
discount applicable to the Notes purchased by such Underwriter. The obligations
of each of the Underwriters under this Section 9E(i) shall be in addition to any
liability which such Underwriter may otherwise have.
22
(ii) The Sponsor agrees to indemnify and hold harmless each
Underwriter, each of such Underwriter's officers and directors and each person
who controls such Underwriter within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Company-Provided Information, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred.
The Sponsor's obligation under this Section 9E(ii) shall be in addition to any
liability which they may otherwise have to the Underwriters.
The procedures set forth in Section 9C shall be equally
applicable to this Section 9E.
F. For purposes of this Section 9, the term "DERIVED
INFORMATION" means such portion, if any, of the information delivered to the
Sponsor or the Seller pursuant to Section 9D for filing with the Commission on
Form 8-K as:
(i) is not contained in the Prospectus without taking
into account information incorporated therein by
reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral
term sheets, Structural term sheets or Computational
Materials (as such terms are interpreted in the
No-Action Letters).
"COMPANY-PROVIDED INFORMATION" means (i) any computer tape
furnished to the Underwriters by the Sponsor or the Seller concerning the
Receivables comprising the Trust and (ii) any textual information contained in
any Collateral term sheet, Structural term sheet or Computational Materials as
well as any statistical information contained therein furnished directly by the
Sponsor or the Seller for inclusion therein.
The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM SHEET"
shall have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA LETTER") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "COLLATERAL TERM
SHEET" as used herein includes any subsequent Collateral term sheet that
reflects a substantive change in the information presented. The term
"COMPUTATIONAL MATERIALS" has the meaning assigned to it in the May 17, 1994
letter (the "XXXXXX LETTER" and together with the PSA Letter, the "NO-ACTION
LETTERS") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
G. If the indemnification provided for in this Section 9 shall
for any reason be unavailable to hold harmless an indemnified party under
Section 9A or B in respect of any loss,
23
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Sponsor on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Sponsor on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations.
The relative benefits of the Underwriters and the Sponsor
shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price appearing on the cover page of the Prospectus.
The relative fault of the Underwriters and the Sponsor shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Sponsor or by one of the Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other equitable
considerations.
The Sponsor and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 9G were to be
determined by PRO RATA allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 9G shall be deemed to include, for purposes of this Section 9G, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of the Sponsor and/or
the Seller, each officer of the Sponsor who signed the Registration Statement,
and each person, if any, who controls the Sponsor and/or the Seller within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Sponsor.
In no case shall any Underwriter be responsible for any amount
in excess of the underwriting discount applicable to the Notes purchased by such
Underwriter hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
24
H. The Underwriters severally confirm that the information set
forth (i) in the Prospectus Supplement relating to market making and (ii) under
the caption "Underwriting" in the Prospectus Supplement, together with the
Derived Information, is correct and constitutes the only information furnished
in writing to the Sponsor or the Seller by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters participating in the public offering of the Notes
shall fail at the Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "DEFAULTED SECURITIES"), then the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein set forth. If,
however, the Underwriters have not completed such arrangements within such
24-hour period, then:
(i) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Notes to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated, PRO RATA in the proportion shown in the attached Schedule 1 as to
each non-defaulting Underwriter ("PRO RATA") (unless the non-defaulting
Underwriters agree among themselves to a different allocation) to purchase the
full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Notes to be purchased
pursuant to this Agreement, (a) no non-defaulting Underwriters shall be required
to purchase any Notes which were to be purchased by the defaulting Underwriter,
(b) the non-defaulting Underwriters may elect to purchase the remaining amount
Pro Rata (unless the non-defaulting Underwriters agree among themselves to a
different allocation) provided that if the non-defaulting Underwriters have not
agreed to purchase the entire aggregate principal amount of the Notes, then this
Agreement shall terminate, without any liability on the party of the
non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve the
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in
this Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 11. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Sponsor and the Seller prior to delivery of and payment for the Notes if
prior to such time (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Trust,
the Sponsor or the Seller which, in the reasonable judgment of the
Representative, materially impairs the investment quality of the Notes or makes
it impractical or inadvisable to market the Notes; (ii) the Notes have been
placed on credit watch by S&P or Xxxxx'x or Fitch 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
25
suspended or limited, or minimum prices shall have been established on such
exchange or market system; (iv) a banking moratorium shall have been declared by
either Federal or New York State authorities; or (v) there shall have occurred
any outbreak or material escalation of hostilities or other calamity or crisis,
the effect of which makes it, in the reasonable judgment of the Representative,
impractical or inadvisable to proceed with the completion of the sale and
payment for the Notes. Upon such notice being given, the parties to this
Agreement shall (except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations under
this Agreement.
Section 12. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement or contained in certificates of officers of the Companies
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Representative or
controlling person of the Representative, or by or on behalf of the Companies or
any officers, directors or controlling persons and shall survive delivery of any
Notes to the Representative or any controlling person.
Section 13. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication to:
The Underwriters: Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
The Sponsor: AmeriCredit Financial Services, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
The Seller: AFS SenSub Corp.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
Section 14. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Representative and the Companies, and their
respective successors or assigns. Nothing expressed or mentioned in this
Agreement is intended nor shall it be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 9 and
26
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 rights as specified herein and
therein) and except as provided above for the benefit of no other person, firm
or corporation. No purchaser of Notes from the Representative shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 16. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
Section 17. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of or affect the
meaning or interpretation of, this Agreement.
27
If the foregoing is in accordance with the Representative's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Representative, the Sponsor and the Seller in
accordance with its terms.
Very truly yours,
AMERICREDIT FINANCIAL SERVICES, INC.
By: /s/ XXXX XXXXXXXX
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President. Finance
AFS SENSUB CORP.
By: /s/ XXXXX XXXXX
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Structured Finance
CONFIRMED AND ACCEPTED, as of the date first above written:
CHASE SECURITIES INC.,
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
[Underwriting Agreement]
Schedule 1
Underwriting
PURCHASE PRICE
(EXCLUDING ACCRUED INTEREST)
CLASS A-1 CLASS A-2 CLASS A-3 CLASS B CLASS C
--------- --------- --------- --------- ---------
Chase Securities Inc. 99.875000% 99.791892% 99.745804% 99.673802% 99.538587%
Deutsche Banc Alex.
Xxxxx Inc. 99.875000% 99.791892% 99.745804% 99.673802% 99.538587%
NOTIONAL PRINCIPAL AMOUNT
CLASS A-1 CLASS A-2 CLASS A-3 CLASS B CLASS C
----------- ------------ ------------ ----------- -----------
Chase Securities Inc. $87,500,000 $174,000,000 $152,375,000 $49,500,000 $55,000,000
Deutsche Banc Alex.
Xxxxx Inc. $87,500,000 $174,000,000 $152,375,000 $49,500,000 N/A
--------------------------------------------------------------------------------------------------------------
Total $175,000,000 $348,000,000 $304,750,000 $99,000,000 $55,000,000
