GOLDMAN SACHS ASSET BACKED SECURITIES CORP. GS AUTO LOAN TRUST 2005-1 PUBLICLY OFFERED ASSET BACKED NOTES Underwriting Agreement
Exhibit 1.1
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.
PUBLICLY OFFERED ASSET BACKED NOTES
August 12, 2005
Xxxxxxx, Sachs & Co.,
as Representative of the Underwriters
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Underwriters
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Asset Backed Securities Corp., a Delaware corporation (the “Company”) proposes
to sell to Xxxxxxx, Sachs & Co., as representative (the “Representative”) of Xxxxxxx, Xxxxx & Co.
and Huntington Capital Corp., as underwriters (the “Underwriters”), subject to the terms and
conditions stated herein, an aggregate of $1,270,594,000 principal amount of the Notes issued by GS
Auto Loan Trust 2005-1, a Delaware statutory trust (the “GSALT Trust” or the “Issuer”) and
specified on Schedule I hereto (the “Publicly Offered Notes”). The GSALT Trust will also issue
Class D Notes (together with the Publicly Offered Notes, the “Notes”) and Certificates (together
with the Notes, the “Securities”). The Notes will be issued pursuant to an Indenture, dated as of
the Closing Date, between the GSALT Trust and JPMorgan Chase Bank, National Association, a national
banking association, as indenture trustee (the “Indenture Trustee”) and will represent obligations
of the GSALT Trust. The Certificates will be issued pursuant to an Amended and Restated Trust
Agreement, dated as of the Closing Date (the “Trust Agreement”) between Xxxxxxx Xxxxx Asset Backed
Securities Corp. and Wilmington Trust Company, as Owner Trustee. The assets of the GSALT Trust
consist primarily of a pool of retail motor vehicle loan and installment sale contracts, in each
case secured by new or used automobiles or light trucks.
GS Whole Loan Trust, a Delaware statutory trust (“Trust I”), purchased certain retail motor
vehicle loan and installment sale contracts (the “Ford Receivables”) from Ford Motor Credit Company
(“Ford Credit”) pursuant to a Purchase and Sale Agreement, dated as of March 1, 2005 (the “Ford
Purchase Agreement”) between Trust I, as purchaser, and Ford Credit, as seller. GS Whole Loan
Trust II, a Delaware statutory trust (“Trust II”), purchased certain retail motor vehicle loan and
installment sale contracts (the “Huntington Receivables”) from The Huntington National Bank
(“Huntington”) pursuant to a Purchase and Servicing Agreement, dated as of June 7, 2005 (the
“Huntington Purchase Agreement”) between Trust II, as purchaser, and Huntington, as seller. GS
Whole Loan Trust III, a Delaware statutory trust (“Trust III”), purchased certain retail motor
vehicle loan and installment sale contracts (the “OSB Receivables” and together with the Ford
Receivables and the Huntington Receivables, the “Receivables”) from Ohio Savings Bank (“OSB”)
pursuant to a Purchase Agreement, dated as of
June 28, 2005 (the “OSB Purchase Agreement”) between Trust III, as purchaser, and OSB, as
seller.
The Company will acquire the Ford Credit Receivables pursuant to a Receivables Purchase
Agreement, dated as of the Closing Date (as hereinafter defined), between the Company and Trust I
(the “Trust I Receivables Purchase Agreement”). The Company will acquire the Huntington
Receivables pursuant to a Receivables Purchase Agreement, dated as of the Closing Date, between the
Company and Trust II (the “Trust II Receivables Purchase Agreement”). The Company will acquire the
OSB Receivables pursuant to a Receivables Purchase Agreement, dated as of the Closing Date, between
the Company and Trust III (the “Trust III Receivables Purchase Agreement” and together with the
Trust I Receivables Purchase Agreement and the Trust II Receivables Purchase Agreement, the
“Receivable Purchase Agreements”). Pursuant to the Receivables Purchase Agreements, Trust I, Trust
II and Trust III will assign certain of their rights with respect to certain representations and
warranties under the Ford Purchase Agreement, the Huntington Purchase Agreement and the OSB
Purchase Agreement, respectively, to the Company. Pursuant to the Sale and Servicing Agreement,
dated as of the Closing Date (the “Sale and Servicing Agreement”), by and among the Company, the
Issuer, the Indenture Trustee, Xxxxxxx Sachs Mortgage Company and Wilmington Trust Company, as
Owner Trustee, the Company will assign its rights in the Receivables and certain other property to
the GSALT Trust. The Receivables will be serviced by Xxxxxxx Xxxxx Mortgage Company pursuant to
the terms of the Sale and Servicing Agreement.
Huntington, the Company and Xxxxxxx, Sachs & Co. (“Xxxxxxx Xxxxx”) (will enter into an
indemnification agreement, dated as of the Closing Date (the “Indemnity Agreement”), whereby
pursuant to the terms therein Huntington will agree to indemnify the Company and Xxxxxxx Sachs for
all information provided to the Company and/or Xxxxxxx Xxxxx by Huntington for use in connection
with the issuance of the Securities.
Capitalized terms used herein and not otherwise defined shall have the meanings assigned to
such terms in Appendix A to the Sale and Servicing Agreement.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-101904) , including a form of
prospectus and such amendments thereto as may have been required to the date hereof, relating to
the Publicly Offered Notes and the offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended (the “Act”), have been filed with the Securities and
Exchange Commission (the “Commission”) and such registration statement, as amended by Amendment No.
1 thereto filed on March 13, 2003, has become effective. Such registration statement, as amended
at the Effective Time (as defined herein), including the exhibits thereto and any material
incorporated by reference therein, are hereinafter referred to as the “Registration Statement,” and
the prospectus (including the base prospectus and any prospectus supplement) relating to the
Publicly Offered Notes, as last filed, or mailed for filing, with the Commission pursuant to Rule
424(b) (“Rule 424(b)”) under the Act is hereinafter referred to as the “Prospectus.” For purposes
of offering the Class D Notes and the Certificates, an offering supplement (the “Offering
Supplement”) will be prepared with respect to the Class D
Notes and the Certificates which shall include and incorporate the Prospectus as a part
thereof. For purposes of this Agreement, “Effective Time” means the date and time as of which such
Registration Statement, or the most recent post-effective amendment thereto, is declared effective
by the Commission, and “Effective Date” means the date of the Effective Time;
(b) On the Effective Date, the Registration Statement did conform in all material respects to
the requirements of the Act, the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), where applicable, and the rules and regulations of the Commission under the Act or the
Exchange Act, as applicable, and did not, as of the Effective Date, contain any 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; provided, however, that this representation
and warranty shall not apply to any statement or omission made in reliance upon and in conformity
with information furnished in writing to the Company by either Underwriter expressly for use in the
Registration Statement;
(c) On the date of this Agreement, the Registration Statement conforms, and at the time of the
last filing of the Prospectus pursuant to Rule 424(b), the Registration Statement and the
Prospectus will conform, in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder (the “Rules and Regulations”), and, except as aforesaid,
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;
(d) The documents incorporated by reference in the Prospectus, when they were filed with the
Commission conformed in all material respects to the requirements of the Exchange Act and the rules
and regulations thereunder; and any further documents so filed and incorporated by reference in the
Prospectus, 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 thereunder;
(e) Since the date as of which information is given in the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(f) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has all requisite power and authority
(corporate and other) to own its properties and to conduct its business as described in the
Prospectus;
(g) The GSALT Trust has been duly organized and is validly existing as a Delaware statutory
trust in good standing under the laws of the State of Delaware and has all requisite power and
authority (trust and other) to own its properties and to conduct its business as described in the
Prospectus;
(h) At the Time of Delivery (as defined in Section 4 hereof), the Receivables Purchase
Agreements, the Sale and Servicing Agreement and the Indenture will have been duly authorized,
executed and delivered (and the Indenture will have been qualified under the Trust Indenture Act)
and will constitute a valid and legally binding obligation of the Company and the GSALT Trust, as
applicable, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general principles of equity;
(i) When the Publicly Offered Notes are issued, executed, authenticated and when delivered
pursuant to this Agreement and the Indenture, the Publicly Offered Notes will have been duly
authorized, executed, authenticated, issued and delivered and will be entitled to the benefits of
the Indenture; and the Publicly Offered Notes and the Indenture will conform to the descriptions
thereof in the Prospectus;
(j) This Agreement has been duly authorized and validly executed and delivered by the Company;
(k) The issue and sale of the Notes and the compliance by the Company with all of the
provisions of the Notes, the Indenture, the Sale and Servicing Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Sale and Servicing Agreement or the Indenture, except the
registration under the Act of the Publicly Offered Notes, such as have been obtained under the Act
and such consents, approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and distribution of the
Publicly Offered Notes by the Underwriters;
(l) The Company is not in violation of its Certificate of Incorporation or By-laws or in
default in the performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound;
(m) The statements set forth in the Prospectus under the caption “The Notes”, insofar as they
purport to constitute a summary of the terms of the Notes, under the caption “Material United
States Federal Income Tax Considerations”, and under the caption “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(n) The Company will, at the Time of Delivery, own the Receivables, free and clear of any
lien, mortgage, pledge, charge, security interest or other encumbrance, and, at the Time of
Delivery, the Company will have full power and authority to sell and deliver the Receivables to the
GSALT Trust under the Sale and Servicing Agreement and at the Time of Delivery will have duly
authorized such assignment and delivery to the GSALT Trust by all necessary action;
(o) The GSALT Trust’s pledge of the Trust Estate to the Indenture Trustee pursuant to the
Indenture will vest in the Indenture Trustee a first priority perfected security interest therein,
subject to no prior lien, mortgage, security interest, pledge, adverse claim, charge or other
encumbrance;
(p) Other than as set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or the GSALT Trust is a party or of which any
property of the Company or the GSALT Trust is the subject which, if determined adversely to the
Company or the GSALT Trust, would individually or in the aggregate have a material adverse effect
on the condition (financial or otherwise), earnings affairs, business, properties or prospects of
the Company or the GSALT Trust; and, to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by others;
(q) Each of the Company and the GSALT Trust is not and, after giving effect to the offering
and sale of the Securities, will not be an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(r) Any taxes, fees and other governmental charges in connection with the execution, delivery
ad performance of this Agreement, the Sale and Servicing Agreement and the Indenture and the
Securities will have been paid at or prior to the Time of Delivery; and
(s) Deloitte Touche Tohmatsu LLP who has been engaged to apply agreed-upon procedures to be
performed in accordance with the standards established by the American Institute of Certified
Public Accountants, and substantially in the form heretofore agreed and otherwise in form and in
substance satisfactory to its counsel is an independent public accountant as required by the Act
and the rules and regulations of the Commission thereunder.
2. Purchase and Payment. Subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters, and the Underwriters severally agree to purchase from
the Company, at a purchase price determined in accordance with Schedule I hereto, the principal
amount of Publicly Offered Notes set forth in Schedule I hereto.
3. Sale by the Underwriters. Upon the authorization by you of the release of the
Securities, the Underwriters propose to offer the Publicly Offered Notes for sale to the public
upon the terms and conditions set forth in the Prospectus.
4. Delivery and Closing. (a) Delivery of, and payment of the purchase price for, the
Publicly Offered Notes shall be made at the office of Xxxxx Xxxxx Xxxx & Maw LLP, 00 X. Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (“MBR&M”), or at such other place as shall be agreed upon by you and
the Company, at 10:00 A.M. on August 19, 2005, or such other time as shall be
agreed upon by you and the Company (such time and date being referred to as the “Time of
Delivery” or the “Closing Date”). The Company will deliver such Publicly Offered Notes to the
Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by
wire transfer to the Company of Federal (same day) funds, by causing DTC to credit such Publicly
Offered Notes to the account of the Underwriters at DTC. The Company will cause the Publicly
Offered Notes to be made available for examination by you in Chicago, Illinois at least twenty-four
hours prior to the Time of Delivery at an office designated by Xxxxxxx, Sachs & Co. (the
“Designated Office”). The Publicly Offered Notes to be so delivered will initially be represented
by one or more definitive global Notes in book-entry form registered in the name of Cede & Co., the
nominee of DTC. The interests of beneficial owners of the Securities will be represented by book
entries on the records of DTC and participating members thereof.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross-receipt for the Publicly Offered Notes and
any additional documents requested by Xxxxxxx, Xxxxx & Co. pursuant to Section 7(s) hereof, will be
delivered at the offices of MBR&M (the “Closing Location”), and the Publicly Offered Notes will be
delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 2:00 p.m., Chicago time, on the Chicago Business Day next preceding the Time of
Delivery, or such other time as shall be agreed by you and the Company, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4, “Chicago Business Day” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in Chicago are generally authorized or obligated by law or executive order to close.
5. Covenants of the Company. The Company agrees with each Underwriter as follows:
(a) The Company will, if required, file the Prospectus pursuant to Rule 424(b) under the Act
with the Commission pursuant to and in accordance with Rule 424(b) not later than the time
specified therein. The Company will advise the Underwriters promptly of any such filing pursuant
to Rule 424(b);
(b) The Company will not to make any amendment or any supplement to the Registration Statement
or the Prospectus, as amended or supplemented prior to the Time of Delivery, without furnishing the
Underwriters with a copy of the proposed form thereof and providing the Underwriters with a
reasonable opportunity to review the same; and during such same period to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the Prospectus as amended or
supplemented or any amended Prospectus has been filed or mailed for filing, of the issuance of any
stop order by the Commission, of the suspension of the qualification of any of the Publicly Offered
Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus, as amended or supplemented or for additional information;
and, in the event of the issuance of any such stop order or of any order preventing or suspending
the use of any prospectus relating
to the Publicly Offered Notes or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(c) The Company will promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Publicly Offered Notes for offering and sale under the securities
laws of such states as the Underwriters may request and to continue such qualifications in effect
so long as necessary under such laws for the distribution of the Publicly Offered Notes,
provided that in connection therewith, neither the GSALT Trust nor the Company shall be
required to qualify to do business or to file a general consent to service of process in any
jurisdiction; and provided further, that the expense of maintaining any such
qualification more than one year from the Time of Delivery with respect to such Publicly Offered
Notes shall be at the expense of the Underwriters;
(d) The Company will furnish the Underwriters with copies of the Registration Statement and
copies of the Prospectus, as amended or supplemented, in such quantities as the Underwriters may
from time to time reasonably request, and, if the delivery of a prospectus is required by law at
any time prior to the expiration of six months after the time of issue of the Prospectus in
connection with the offering or sale of the Publicly Offered Notes and if at such time, either (i)
any event 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 light of the circumstances under which they were made,
not misleading, or (ii) 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 Act, the Exchange Act or the Trust
Indenture Act, to notify the Underwriters and upon its request to 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 will correct such statement or omission or effect such compliance; and in case either
Underwriter is required by law to deliver a prospectus in connection with sales of any of the
Publicly Offered Notes at any time six months or more after the time of issue of the Prospectus,
upon such Underwriter’s request, but at such Underwriter’s own expense, to prepare and deliver to
such Underwriter as many written and electronic copies as such Underwriter may request of an
amended or supplemented Prospectus complying with the Act;
(e) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery for the Publicly Offered Notes and such earlier time as an Underwriter may
notify the Company not to offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, except as provided hereunder any securities of the Company
that are substantially similar to the Publicly Offered Notes;
(f) [Reserved];
(g) So long as any of the Publicly Offered Notes are outstanding, to furnish you copies of all
reports or other communications (financial or other) furnished to Holders of Notes, and to deliver
to you during such same period, (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission; (ii) copies of
each amendment to any of the Indenture, the Sale and Servicing Agreement and the Receivables
Purchase Agreements; and (iii) such additional information concerning the business and financial
condition of the Company or the GSALT Trust as you may from time to time reasonably request;
(h) During a period of five years from the effective date of the Registration Statement, to
furnish to you (i) copies of any documents furnished to or filed with the Commission pursuant to
the Exchange Act; and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request;
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds”; and
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required
under the Act.
6. Payment of Expenses. The Company covenants and agrees with the Underwriters that
the Company will pay or cause to be paid the following: (i) the Commission’s filing fees with
respect to the Publicly Offered Notes; (ii) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the issue of the Securities and all other expenses in
connection with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (iii) the cost of printing or producing this Agreement, the
Indenture, the Blue Sky Survey, the Indemnity Agreement, term sheets, closing documents (including
any compilations thereof) and any other document produced in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Publicly Offered Notes for offering and sale under state securities laws as
provided in Section 5(c) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of the Indenture Trustee and
of any agent of the Indenture Trustee and the fees and disbursements of counsel for the Indenture
Trustee in connection with the Indenture and the Securities; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
It is understood, however, that, except as provided in this Section, and Sections 8 and 11
hereof, each Underwriter will pay all of its own costs and expenses, including the fees of its
counsel, transfer taxes on resale of any of the Publicly Offered Notes by it, and any advertising
expenses connected with any offers it may make.
7. Conditions of the Obligations of the Underwriters. The obligations of the
Underwriters hereunder shall be subject, in its discretion, to the condition that all
representations and warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus and any supplements thereto shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have been complied with to
each Underwriter’s reasonable satisfaction;
(b) The Indenture, the Sale and Servicing Agreement, the Receivables Purchase Agreements, the
Indemnity Agreement and all of the other agreements identified in such agreements, shall have been
duly entered into by all of the respective parties;
(c) MBR&M, special counsel for the Company, shall have furnished to you their written
opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the Underwriters;
(d) MBR&M, special counsel for the Underwriters, shall have furnished to you their written
opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the Underwriters;
(e) In-house counsel to the Company, Trust I, Trust II, Trust III and Xxxxxxx Xxxxx Mortgage
Company, shall have furnished to you their written opinion or opinions, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters;
(f) In-house counsel to Huntington, shall have furnished to you their reliance letter in
connection with the written opinion, dated June 13, 2005, delivered in connection with the
Huntington Purchase Agreement;
(g) In-house counsel to Huntington, shall have furnished to you their written opinion or
opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the Underwriters;
(h) Xxxxxxxx Xxxx shall have furnished to you their written opinion, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters, with respect to security interest related
matters in the state of Ohio;
(i) Holland & Knight shall have furnished to you their written opinion, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters, with respect to security interest related
matters in the state of Florida;
(j) Xxxxx Xxxx LLP shall have furnished to you their written opinion, subject to customary
qualifications, assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriters, with respect to security interest related
matters in the state of Arizona;
(k) Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee, shall have furnished to you their
written opinion or opinions, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably satisfactory to the
Underwriters, with respect to general corporate matters relating to the Owner Trustee;
(l) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the GSALT Trust, shall have
furnished to you their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters, with respect to certain matters relating to the GSALT
Trust and the establishment thereof;
(m) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the GSALT Trust and Owner Trustee,
shall have furnished to you their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriters, with respect to certain perfection matters relating to
Trust I, Trust II, Trust III, the Company and the GSALT Trust;
(n) Xxxxxx & Xxxxxxx LLP, counsel to the Indenture Trustee, shall have furnished to you their
written opinion or opinions, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably satisfactory to the
Underwriters, with respect to general corporate matters relating to the Indenture Trustee;
(o) Xxxxxxx Xxxxxxx LLP, counsel to Huntington, shall have furnished to you their reliance
letter in connection with the written opinion, dated June 7, 2005, delivered in connection with the
Huntington Purchase Agreement;
(p) Xxxxxx & Xxxxxxx LLP, counsel to SST, shall have furnished to you their written opinion or
opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the Underwriters;
(q) Xxxxxx, Xxxxx & West LLP, counsel to OSB, shall have furnished to you their reliance
letter in connection with the written opinion, dated June 28, 2005, delivered in connection with
the OSB Purchase Agreement;
(r) The independent accountants of the Company or other accountants acceptable to the
Underwriters shall have furnished to the Underwriters a letter or letters, dated on the date
hereof, and a letter or letters, dated the Time of Delivery, respectively, containing statements
and information of the type customarily included in accountants’ “comfort letters” and “agreed upon
procedures letters” with respect to certain financial information contained in
| 10 | Underwriting Agreement |
the Prospectus, in each case as to such matters as you may reasonably request and in form and
substance satisfactory to the Underwriters;
(s) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Prospectus as
amended prior to the Time of Delivery any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the Time of Delivery, and (ii) since the respective dates as of
which information is given in the Prospectus as amended prior to the Time of Delivery there shall
not have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended prior to the Time of Delivery, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Underwriters so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the Publicly Offered
Notes on the terms and in the manner contemplated in the Prospectus as first amended or
supplemented;
(t) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded
the Company’s debt securities or preferred stock by any “nationally recognized statistical rating
organization,” as that term is defined by the Securities and Exchange Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its rating of any of the
Company’s debt securities or preferred stock;
(u) On or after the date hereof, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a national
emergency or war or (iv) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iii) or (iv) in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in
the manner contemplated in the Prospectus or Offering Supplement;
(v) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsection (a) of this Section and as to such
other matters as you may reasonably request;
| 11 | Underwriting Agreement |
(w) Each Underwriter shall have received evidence satisfactory to it that the Publicly Offered
Notes are rated in the rating category or categories specified on Schedule I hereto by the rating
agency or agencies specified on Schedule I hereto;
(x) All opinions, certificates and other documents incident to, and all proceedings in
connection with the transactions contemplated by this Agreement, the Receivables Purchase
Agreements, the Sale and Servicing Agreements and the Indenture shall be satisfactory in form and
substance to each Underwriter and its special counsel;
(y) The Registration Statement has become effective under the Act and no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and
(z) Each Underwriter and its special counsel shall have received copies of all documents and
other information as they may reasonably request, in form and substance satisfactory, to such
Underwriter and its special counsel, with respect to such transactions and the taking of all
proceedings in connection therewith.
8. Indemnification. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or several, to which each
Underwriter may become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in any term
sheet, the Registration Statement or the Prospectus or the same information or any other
information provided by the Company expressly for use in any other prospectus relating to the
Securities as of the date thereof, or any amendment or supplement thereto as of the date thereof,
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 action or claim as such expenses are
incurred; provided, however, that the Company shall not 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 or omission or alleged omission made in any such
document in reliance upon and in conformity with written information furnished to the Company by
such Underwriter expressly for use in the Registration Statement or Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in any term sheet, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, 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, 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 any such document in reliance
upon and in conformity with written information furnished to the Company by such Underwriter
expressly for use therein; and will
| 12 | Underwriting Agreement |
reimburse the Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection and only to the extent that it has been materially
prejudiced by such failure. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall 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, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. In any such
action, an indemnified party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such action (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them, or
(iii) the indemnifying party fails to retain counsel reasonably satisfactory to the indemnified
party as provided in the preceding sentence. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. Each indemnified party
shall reasonably cooperate with the indemnifying party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) 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 Publicly Offered Notes to which
such loss, claim, damage or liability (or actions in respect thereof relates). If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law
| 13 | Underwriting Agreement |
or if the indemnified party failed to give the notice required under subsection (c) above
then each indemnifying party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative benefits 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 (or
actions in respect thereof), 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 on the one hand or
the Underwriters on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in 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 such action or claim. Notwithstanding the provisions of this subsection (d), the
Underwriters shall not be required to contribute any amount in excess of the amount by which the
total price at which the Publicly Offered Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the Underwriters have 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability
which the Company 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 Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability which the Underwriters
may otherwise have and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company within the meaning of
the Act.
9. The respective indemnities, agreements, representations, warranties and other statements of
the Company and the Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of the Underwriters
or any controlling person of the Underwriters or the Company or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for the Publicly
Offered Notes.
| 14 | Underwriting Agreement |
10. If for any reason the Publicly Offered Notes are not delivered by or on behalf of the
Indenture Trustee as provided herein, other than by an Underwriter’s failure to comply with its
obligations hereunder, the Company will reimburse such Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by such Underwriter in making
preparations for the purchase, sale and delivery of the Publicly Offered Notes, but the Company
shall be under no further liability to such Underwriter with respect to such Notes except as
provided in Section 6 and Section 8 hereof.
11. The Underwriters may prepare and provide to prospective investors “Computational
Materials,” “ABS Term Sheets” and “Collateral Term Sheets” (collectively, the “8-K Information”) in
connection with its offering of the Publicly Offered Notes, as described in the No-Action Letter of
May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and certain
affiliates, as made applicable to other issuers and underwriters by the Commission in response to
the request of the Public Securities Association dated May 24, 1994 (collectively, the “Xxxxxx/PSA
Letter”), and the requirements of the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the “PSA Letter” and, together with the Xxxxxx/PSA
Letter, the “No-Action Letters”); subject to the following conditions: (i) the Underwriters shall
comply with the requirements of the No-Action Letters; (ii) for purposes hereof, “Computational
Materials” shall have the meaning given such term in the No-Action Letters, but with respect to the
Underwriters shall include only those Computational Materials that have been prepared by the
Underwriters for prospective investors and for purposes hereof and “ABS Term Sheets” and
“Collateral Term Sheets” shall have the meanings given such terms in the PSA Letter but with
respect to the Underwriters shall include only those ABS Term Sheets or Collateral Term Sheets that
have been prepared by the Underwriter for prospective investors; (iii) the Underwriters shall
provide to the Company any 8-K Information which is provided to investors no later than the second
Business Day preceding the date such 8-K Information is required to be filed pursuant to the
applicable No-Action Letters and the Underwriters may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be filed; and (iv) in the
event that the Company or an Underwriter discovers an error in the 8-K Information, the party that
prepared such material shall prepare corrected 8-K Information and deliver it to the Company for
filing.
The Company will cause to be filed with the Commission one or more current reports on Form 8-K
with respect to the 8-K Information.
12. All statements, requests, notices and agreements hereunder shall be in writing, and if to
Xxxxxxx, Sachs & Co. shall be delivered or sent by mail, telex or facsimile transmission to the
Underwriter at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to
the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of
the Company set forth in the Registration Statement, Attention: Secretary. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters
and the Company and, to the extent provided in Sections 8 and 9 hereof, the officers and directors
of the Company and the Underwriters, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under
| 15 | Underwriting Agreement |
or by virtue of this Agreement. No purchaser of any of the Publicly Offered Notes from either
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
17. The Company acknowledges that in connection with the offering of the Publicly Offered
Notes: (a) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other Person, (b) the Underwriters owe the Company only those duties
and obligations set forth in this Agreement and (c) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Publicly Offered Notes.
18. This Agreement, together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the offering of the
Publicly Offered Notes, represents the entire agreement between the Company and the Underwriters
with respect to the preparation of the Prospectus, and the conduct of the offering, and the
purchase and sale of the Publicly Offered Notes.
[SIGNATURES FOLLOW]
| 16 | Underwriting Agreement |
If the foregoing is in accordance with your understanding, please sign and return to us four
(4) counterparts hereof, whereupon this letter and your acceptance hereof shall represent a binding
agreement between the Company and the Underwriters.
| Very truly yours, | ||||
| XXXXXXX XXXXX ASSET BACKED | ||||
| SECURITIES CORP. | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: Xxxxxx Xxxxxxx Title: Vice President |
||||
Accepted as of the date hereof:
/s/ Xxxxxxx, Sachs & Co. |
||
(Xxxxxxx, Xxxxx & Co.) |
||
For itself and as Representative |
||
of the Underwriters |
| S-1 | Underwriting Agreement |
SCHEDULE I
| Principal Amount of | |||||||||||
| Class of Notes | Notes to be Purchased | Purchase Price | Rating1 | ||||||||
Class A-1 Notes |
$ | 306,000,000 | $ | 306,000,000 | P-1/F1+ | ||||||
Xxxxxxx, Sachs & Co. |
$ | 306,000,000 | $ | 306,000,000 | |||||||
Huntington Capital Corp. |
$ | 0 | $ | 0 | |||||||
Class A-2 Notes |
$ | 372,061,000 | $ | 372,047,271 | Aaa/AAA | ||||||
Xxxxxxx, Xxxxx & Co. |
$ | 367,061,000 | $ | 367,047,455 | |||||||
Huntington Capital Corp. |
$ | 5,000,000 | $ | 4,999,816 | |||||||
Class A-3 Notes |
$ | 396,354,000 | $ | 396,302,831 | Aaa/AAA | ||||||
Xxxxxxx, Sachs & Co. |
$ | 391,354,000 | $ | 391,303,476 | |||||||
Huntington Capital Corp. |
$ | 5,000,000 | $ | 4,999,355 | |||||||
Class A-4 Notes |
$ | 110,594,000 | $ | 110,575,265 | Aaa/AAA | ||||||
Xxxxxxx, Xxxxx & Co. |
$ | 105,594,000 | $ | 105,576,112 | |||||||
Huntington Capital Corp. |
$ | 5,000,000 | $ | 4,999,153 | |||||||
Class B Notes |
$ | 42,793,000 | $ | 42,790,240 | A2/A | ||||||
Xxxxxxx, Sachs & Co. |
$ | 42,793,000 | $ | 42,790,240 | |||||||
Huntington Capital Corp. |
$ | 0 | $ | 0 | |||||||
Class C Notes |
$ | 42,792,000 | $ | 42,789,035 | Baa3/BBB | ||||||
Xxxxxxx, Xxxxx & Co. |
$ | 42,792,000 | $ | 42,789,035 | |||||||
Huntington Capital Corp. |
$ | 0 | $ | 0 | |||||||
| 1 | Xxxxx’x/Fitch |
Underwriting Agreement
| Underwriting | ||||||||||||
| Initial Public | Discount and | Purchase Price to | ||||||||||
| Class of Notes | Offering Price | Commission2 | the Depositor | |||||||||
Per Class A-1 Note |
100.00000 | % | 0.100 | % | 99.90000 | % | ||||||
Per Class A-2 Note |
99.99631 | % | 0.150 | % | 99.84631 | % | ||||||
Per Class A-3 Note |
99.98709 | % | 0.200 | % | 99.78709 | % | ||||||
Per Class A-4 Note |
99.98306 | % | 0.250 | % | 99.73306 | % | ||||||
Per Class B Note |
99.99355 | % | 0.300 | % | 99.69355 | % | ||||||
Per Class C Note |
99.99307 | % | 0.500 | % | 99.49307 | % | ||||||
Total |
$ | 1,270,504,641.39 | $ | 2,275,623.50 | $ | 1,268,229,017.89 | ||||||
| 2 | Retained by the Underwriters |
Underwriting Agreement
