Exhibit 1.1
$ ________
ANRC AUTO OWNER TRUST
$____________ ______ % ASSET-BACKED NOTES, CLASS A-1
$____________ ______ % ASSET-BACKED NOTES, CLASS A-2
$____________ ______ % ASSET-BACKED NOTES, CLASS A-3
$____________ ______ % ASSET-BACKED NOTES, CLASS A-4
AUTONATION RECEIVABLES CORPORATION
UNDERWRITING AGREEMENT
______, ____
____________________________,
as Representative of the several Underwriters
Ladies and Gentlemen:
1. Introductory. AutoNation Receivables Corporation, a Delaware
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corporation (the "Company"), proposes, subject to the terms and conditions
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stated herein, to cause ANRC Auto Owner Trust ______________ (the "Trust") to
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issue and sell $___________ aggregate principal amount of ____% Asset-Backed
Notes, Class A-1 (the "Class A-1 Notes"), $________ aggregate principal amount
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of % Asset-Backed Notes, Class A-2 (the "Class A-2 Notes"), $ aggregate
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principal amount of ______ % Asset-Backed Notes, Class A-3 (the "Class A-3
---------
Notes") and $ __________ aggregate principal amount of ________ % Asset-Backed
-----
Notes, Class A-4 (the "Class A-4 Notes" and, together with the Class A-1 Notes,
---------------
the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The Notes will be
-----
issued pursuant to an Indenture, to be dated as of _________________ , ________
(the "Indenture"), between the Trust and _____________________, a __________
banking corporation as indenture trustee (in such capacity, the "Indenture
---------
Trustee").
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The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sales contracts (the "Contracts"), all of which
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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
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defined herein have the meanings ascribed thereto in the Sale and Servicing
Agreement, to be dated as of __________, _______ (the "Sale and Servicing
------------------
Agreement"), by and among the Trust, the Company, AutoNation Financial Services,
---------
as Servicer and Custodian and the Indenture Trustee or, if not defined therein,
in the Indenture, the Owner Trust Agreement or the Receivables Purchase
Agreement, as the case may be. As used herein, "Basic Documents" shall have the
---------------
meaning specified in the Sale and Servicing Agreement. The Company hereby agrees
with the several Underwriters named in Schedule A hereto (collectively, the
"Underwriters") as follows:
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2. Representations and Warranties of the Company and AutoNation
------------------------------------------------------------
Financial Services Corp. The Company and AutoNation Financial Services, each
-----------------------
with respect to itself only, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-_______)
relating to the Notes, including a form of prospectus, has been filed
with the Securities and Exchange Commission (the "Commission") and
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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 ______________,
--------------
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
registration statement, the date and time as of which the registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. "Effective
---------
Date" means the date of the Effective Time. The registration statement,
----
as amended at the Effective Time, including all information (if any),
deemed to be a part of the registration statement as of the Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Securities
-----------
Act, is hereinafter referred to as the "Registration Statement". The
----------------------
form of prospectus relating to the Notes, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
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.
2
(b) If the Effective Time is prior to the execution and delivery
of this Agreement: (i) on the Effective Date, the Registration
Statement conformed in all respects to the applicable requirements of
the Securities Act and the rules and regulations of the Commission
(collectively, the "Rules and Regulations") and the Registration
---------------------
Statement 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 regarding the Insurer
set forth under the heading "Description of The Insurer" in, or
incorporated by reference in, the Prospectus and (iii) the information
set forth under the heading "Description of The Insurance Policy" in
the Prospectus.]
(c) Each of the Company and AutoNation Financial Services has been
duly incorporated and is an existing corporation in good standing under
the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each of the Company and AutoNation Financial
Services is duly qualified to do business as a foreign corporation in
good standing in the State of Florida and in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification and in which the failure to so qualify,
taken in the aggregate, would have a material adverse effect on it.
(d) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company, AutoNation Financial Services or the
Trust for the consummation of the transactions contemplated by this
Agreement and the Basic Documents in connection with the issuance of
the Notes and the Residual Interest Certificate and
3
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 submitted for filing in
the appropriate offices on or prior to the Closing Date (as such term
is defined in Section 3).
(e) Neither the Company nor AutoNation Financial Services is in
violation of its Certificate of Incorporation or By-laws or is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to which
it is a party or by which it or its properties are bound which could
have a material adverse 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.
(f) On the Closing Date, the Company will have directed the Owner
Trustee, on behalf of the Trust, to authenticate and execute the
Residual Interest
4
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.
(g) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or
AutoNation Financial Services or any of their respective properties
that, if determined adversely to the Company or AutoNation Financial
Services, would be reasonably likely to individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business or results of operations of the Company or AutoNation
Financial Services, respectively, or would materially and adversely
affect the ability of the Company or AutoNation Financial Services to
perform its obligations under this Agreement or the other Basic
Documents to which it is a party, or which are otherwise material in
the context of the issuance and sale of the Notes or the issuance of
the Residual Interest Certificate; and no such actions, suits or
proceedings are to the Company's or AutoNation Financial Services'
knowledge, contemplated.
(h) As of the Closing Date, the representations and warranties of
the Company and AutoNation Financial Services contained herein and in
the other Basic Documents will be true and correct.
(i) This Agreement and each other Basic Document to which it is a
party has been duly authorized, executed and delivered by each of the
Company and AutoNation Financial Services.
(j) 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.
(k) The Company's assignment and delivery of the Contracts to the
Trust as of the Closing Date will vest in the Trust all of the
Company's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(l) The Trust's assignment of the Contracts to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior
5
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(m) The computer disk of the Contracts created as of __________ ,
______, and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an
identifying description of the Contracts that are listed on Exhibit A
to the Sale and Servicing Agreement.
(n) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
other Basic Documents and the Notes and any other agreements
contemplated herein or therein shall have been paid or will be paid by
the Company at or prior to the Closing Date to the extent then due.
(o) The consummation of the transactions contemplated by this
Agreement and the other Basic Documents, and the fulfillment of the
terms hereof and thereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any of
the property or assets of the Company or AutoNation Financial Services
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or similar agreement or
instrument under which the Company or AutoNation Financial Services is
a debtor or guarantor, except for conflicts, violations, breaches 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.
(p) The Company is not and, after giving effect to the issuance of
the Residual Interest Certificate and the offering and sale of the
Notes and the application of the proceeds thereof as described in the
Prospectus, will not be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
----------------------
3. Purchase, Sale and Delivery of Notes. On the basis of the
------------------------------------
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, _____._____ % of the principal amount thereof; (ii) the Class A-2 Notes,
_____._____ % of the principal amount thereof; (iii) the Class A-3 Notes,
_____._____ % of the principal amount thereof; and (iv) the Class A-4 Notes,
_____._____ % of the principal amount thereof, in the respective principal
amounts of each Class of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global securities in
definitive form (the
6
"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 ______________, New
York, New York, at 10:00 a.m., New York time, on __________, _______, or at such
other time not later than seven full business days thereafter as the
Representative and the Company determine, such time being herein referred to as
the "Closing Date", against delivery to the Indenture Trustee as custodian for
------------
DTC of the Global Notes representing all of the Notes. The Global Notes will be
made available for checking at the above office of at least 24 hours prior to
the Closing Date.
[The Company will deliver the Residual Interest Certificate to the
above office of _____________ 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 at least 24 hours prior to the
Closing Date.]
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than _______________,
______, unless otherwise agreed to as described above.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
---------------------------------
several Underwriters:
(a) If the Effective Time is prior to the execution and delivery
of this Agreement, the Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (1), (2),
(3), (4) or (5) of Rule 424(b) not later than the second business day
following the execution and delivery of this Agreement. The Company
will advise the Representative promptly of any such filing pursuant to
Rule 424(b).
(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or
the related Prospectus, 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 (it 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
7
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representative of
such event and will promptly prepare and file with the Commission
(subject to the Representative's prior review pursuant to Section
5(b)), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect
such compliance. 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.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will cause the Trust to make
generally available to the Noteholders an earnings statement of the
Trust covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of
the Securities Act. For the purpose of the preceding sentence,
"Availability Date" means the 90th day after the end of the Trust's
-----------------
fourth fiscal quarter following the fiscal quarter that includes such
Effective Date.
(e) The Company will furnish to the Representative copies of the
Registration Statement (including all exhibits), each related
preliminary prospectus, and, so long as delivery of a prospectus
relating to the Notes is required to be delivered under the Securities
Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representative reasonably requests. The Prospectus shall be so
furnished on or prior to 3:00 p.m., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time. All other such documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Notes
for offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative
may reasonably designate and will continue such qualifications in
effect so long as required for the distribution of the Notes; provided
--------
that in connection therewith the Company shall not be required to
qualify as a foreign corporation to do business, to file a general
consent to service of process in any such jurisdiction or subject
itself to taxation in any jurisdiction to which it is not subject.
8
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the
Representative and, upon request, to each of the other Underwriters,
copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee 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 under the Indenture, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish
to the Representative by first-class mail as soon as practicable, (i)
all documents distributed, or caused to be distributed, by the Company
to the Noteholders, (ii) all documents filed or caused to be filed by
the Company with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder and (iii) such other information in
the possession of the Company concerning the Trust as the
Representative from time to time may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company
will pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees and other expenses
(including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale in jurisdictions
that the Representative may designate pursuant to Section 5(f) hereof
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the officers and employees of the Underwriters and any
other expenses of the Underwriters in connection with attending or
hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto).
(j) To the extent, if any, that the rating provided with respect
to the Notes by Xxxxx'x Investors Service ("Moody's") and Standard &
-------
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
----------
Poor's", together with Xxxxx'x, 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.
(k) On or before the Closing Date, the Company and AutoNation
Financial Services shall annotate and indicate unambiguously in the
computer records of the Company and AutoNation Financial Services
relating to the
9
Contracts to show the Trust's absolute ownership of the Contracts, and
from and after the Closing Date neither the Company nor AutoNation
Financial Services shall take any action inconsistent with the Trust's
ownership of such Contracts, other than as permitted by the Basic
Documents.
6. Conditions of the Obligations of the Underwriters. The obligations
-------------------------------------------------
of the several Underwriters to purchase and pay for the Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and AutoNation Financial Services herein, to the
accuracy of the statements of 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:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of_______,
in form and substance satisfactory to the Representative and counsel
for the Underwriters, confirming that they are independent public
accountants within the meaning of the 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, (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 430(A)(b), and (ii) "Prospectus" shall
----------
mean the prospectus included in the Registration Statement. All
financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or
such later date as shall have been consented to by the Representative.
If the Effective Time is prior to the
10
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a). Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representative
after due inquiry, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in or affecting particularly the
business, properties or financial condition of the Company, 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.
(d) The Representative shall have received such opinions as
reasonably requested 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.
(e) The Representative shall have received such opinions as
reasonably requested 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.
(f) The Representative shall have received such opinions as
reasonably requested of _________________, counsel for the
Underwriters.
(g) The Representative shall have received a certificate, dated
the Closing Date, of the Chairman of the Board, the President, any Vice
President or a principal financial or accounting officer of each of the
Company and AutoNation Financial Services in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company or AutoNation
Financial Services, as applicable, in
11
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.
(h) The Representative shall have received an opinion of
___________________ , counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(i) The Representative shall have received an opinion of
___________________ , counsel to the Owner Trustee, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(j) The Representative shall have received an opinion of
___________________ , special Delaware counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(k) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, counsel to the Company re: Nonconsolidation,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(l) The Representative shall have received evidence satisfactory
to it and its counsel that, on or before the Closing Date, UCC-1
financing statements have been or are being filed in the office of the
Secretary of State of the state of (i) Delaware 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.
12
(m) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, special counsel to the Company re: Perfection and
Priority, dated the Closing Date and satisfactory in form and substance
to the Representative and counsel for the Underwriters.
(n) Each Class of Notes shall have been rated in the highest
rating category by both Moody's or Standard & Poor's.
(o) The Representative shall have received a letter, dated the
Closing Date, of ______________ which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than five days prior to
such Closing Date for purposes of this subsection.
(p) On or prior to the Closing Date, the Residual Interest
Certificate shall have been issued to the Company.
(q) The Representative shall 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 Moody's 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 Moody's in connection with the rating of any Class of the
Notes, as if each such opinion were addressed to the Underwriters.
(r) The Representative shall have received an opinion of Xxxxx
Xxxxx, P.A., special Florida counsel to the Company and AutoNation
Financial Services re: Security Interest, dated the Closing Date and
satisfactory in form and substance to the Representative and the
counsel for the Underwriters.
(s) 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.
13
7. Indemnification and Contribution.
--------------------------------
(a) The Company and AutoNation Financial Services will, jointly
and severally, indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 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 related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided
--------
that neither the Company nor AutoNation Financial Services will be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Company or AutoNation Financial Services
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in subsection (b) below, [the information regarding the Insurer
set forth under the heading "The Insurer" in or incorporated by
reference in the Prospectus and the information set forth under the
heading "The Insurance Policy" in the Prospectus; 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.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and AutoNation Financial Services against any
losses, claims, damages or liabilities to which the Company or
AutoNation Financial Services may become subject, under the 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 related preliminary prospectus,
or arise
14
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:___________________________.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof and after acceptance by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party if
indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Notes or
(ii) if the
15
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.
(e) The obligations of the Company or AutoNation Financial
Services under this Section shall be in addition to any liability which
the Company or AutoNation Financial Services may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Securities
Act; and the obligations of the Underwriters under this Section shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company or AutoNation Financial Services, to each
officer of the Company and AutoNation Financial Services who has signed
the Registration Statement and to each person, if any, who controls the
Company or AutoNation Financial Services within the meaning of the
Securities Act.
8. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Notes hereunder on the Closing Date and
the aggregate
16
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.
9. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or AutoNation Financial Services or their respective
officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter
or the Company or AutoNation Financial Services or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Notes by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, AutoNation Financial Services and the Underwriters
pursuant to Section 7 shall remain in effect. If the purchase of the Notes by
the Underwriters is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AutoNation Financial Services, jointly and severally, will reimburse the
Underwriters for all out-of pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Notes.
10. Notices. All communications hereunder will be in writing and,
-------
if sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at __________________, Attention:___________
(facsimile: (____) _______-________) or, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at 000 Xxxxx
Xxxx 0xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Attention:_________
(facsimile: (____) _______-________), and if to AutoNation Financial Services,
will be mailed, delivered or sent by facsimile transmission
17
transmission and confirmed to it at 000 Xxxxx Xxxx 0xx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, Attention: (facsimile: (____) _______-________); provided that
--------
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
----------------------
date which is one year and one day after the payment in full of all securities
issued by the Company or by a trust for which the Company was the depositor
which securities were rated by any nationally recognized statistical rating
organization, 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.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for
------------------------------
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
------------------------------------------
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) Each of the Company and AutoNation Financial Services hereby
submits to the nonexclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18
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:_________________________________
Name:
Title:
AUTONATION FINANCIAL
SERVICES CORP.
By:________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written:
______________________________, acting on behalf of itself and as
the Representative of the several Underwriters
By:__________________________
Name:
Title:
SCHEDULE A
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Underwriter Amount of Amount of Amount of Amount of
----------- Class A-l Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
----- ----- ----- -----
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$ $ $ $
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$ $ $ $
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$ $ $ $
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$ $ $ $
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Total: $ $ $ $
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