AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 2006-B-G
Class A-1 5.3484% Asset Backed
Notes
Class A-2 5.37% Asset Backed Notes
Class A-3 5.21% Asset Backed Notes
Class A-4 5.21% Asset Backed Notes
DEUTSCHE BANK
SECURITIES INC.
As Representative of the Underwriters
60 Wall Street, 19 th Floor
New York, New York 10005
AmeriCredit
Financial Services, Inc., a corporation organized and existing
under the laws of Delaware (the “ Sponsor ”),
and AFS SenSub Corp., a Nevada corporation (the “
Seller ”) (the Sponsor and the Seller, collectively,
the “ Companies ”), agree with you as
follows:
Section 1.
Issuance and Sale of Notes . The Sponsor has authorized the
issuance and sale of $166,000,000 Class A-1 5.3484% Asset
Backed Notes, $342,000,000 Class A-2 5.37% Asset Backed Notes,
$352,000,000 Class A-3 5.21% Asset Backed Notes and
$340,000,000 Class A-4 5.21% Asset Backed Notes (collectively,
the “ Notes ”). The Notes are to be issued by
AmeriCredit Automobile Receivables Trust 2006-B-G (the “
Trust ”) pursuant to an Indenture, to be dated as of
September 18, 2006 (the “ Indenture ”),
between the Trust and Wells Fargo Bank, National Association
(“ Wells Fargo ”), a national banking
association, as indenture trustee and as trust collateral agent
(the “ Trustee ”). In addition to the Notes, the
Trust will also issue an Asset Backed Certificate representing the
beneficial ownership interests in the Trust (the “
Certificate ”) (the Notes and the Certificate,
collectively, the “ Securities ”) pursuant to a
Trust Agreement, dated as of September 6, 2006, as amended and
restated as of September 18, 2006, between the Seller and
Wilmington Trust Company, as owner trustee (the “ Owner
Trustee ”). The assets of the Trust will initially
include a pool of retail installment sale contracts secured by new
or used automobiles, light duty trucks and vans (the “
Receivables ”) and certain monies due thereunder on or
after September 18, 2006 (the “ Cutoff Date
”).
The
Notes will have the benefit of a note insurance policy (the “
Note Insurance Policy ”), issued by Financial Guaranty
Insurance Company, a New York stock insurance company (the “
Note Insurer ”).
In
connection with the issuance of the Note Insurance Policy
(i) the Companies, the Trust, Wells Fargo, as trustee, trust
collateral agent and backup servicer, the Sponsor, as Custodian and
the Note Insurer will execute and deliver an Insurance Agreement
dated as of September 18, 2006 (the “ Insurance
Agreement ”), (ii) the Representative (as defined
below) and the Note Insurer will execute and deliver an
Indemnification Agreement dated as of September 14, 2006 (the
“ Indemnification Agreement ”) and
(iii) the Trust, the Trustee and the Note Insurer will execute
and deliver a Spread Account Agreement dated as of
September 18, 2006 (the “ Spread Account
Agreement ”).
As
used herein, the term “ Sponsor Agreements ”
means the Sale and Servicing Agreement dated as of
September 18, 2006 among the Trust, the Sponsor, as servicer,
the Seller and Wells Fargo, as trust collateral agent and backup
servicer (the “ Sale and Servicing Agreement ”),
the Purchase Agreement between the Sponsor and the Seller dated as
of September 18, 2006 (the “ Purchase Agreement
”), the Insurance
Agreement and
this Agreement; the term “ Seller Agreements ”
means the Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, the Insurance Agreement and this
Agreement.
The
Notes are being purchased by the Underwriters named in
Schedule 1 hereto, and the Underwriters are purchasing,
severally, only the Notes set forth opposite their names in
Schedule 1, except that the amounts purchased by the Underwriters
may change in accordance with Section 10 of this Agreement.
Deutsche Bank Securities Inc. is acting as representative of the
Underwriters and, in such capacity, is hereinafter referred to as
the “ Representative .” The Certificate will be
retained by the Seller.
Defined
terms used herein shall have their respective meanings as set forth
in the Sale and Servicing Agreement.
Section 2.
Representations and Warranties . A. The Sponsor represents,
warrants and agrees with the Underwriters, that as of the Execution
Time, as of the Applicable Time and as of the Closing
Date:
(i) The
Seller and AFS Funding Trust, a Delaware statutory trust,
(together, the “ Co-Registrants ”) have filed
with the Securities and Exchange Commission (the “
Commission ”) a registration statement (Registration
No. 333-130439) on Form S-3, including a related base
prospectus and forms of prospectus supplements, for the
registration under the Securities Act of 1933, as amended (the
“ Act ”), of the offering and sale of the Notes.
The Co-Registrants may have filed one or more amendments thereto,
each of which has previously been furnished to you. The Sponsor has
filed each Preliminary Prospectus (as hereinafter defined) with the
Commission. Promptly after execution and delivery of this
Agreement, the Sponsor will prepare and file with the Commission a
final base prospectus and a final prospectus supplement relating to
the Notes in accordance with the provisions of Rule 430B and
Rule 424(b). Any information included in such base prospectus
and prospectus supplement that was omitted from such registration
statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to
Rule 430B is referred to as “ Rule 430B
Information ”. Such registration statement, at any given
time, including the amendments thereto to such time, the exhibits
and any schedules thereto at such time, the documents incorporated
therein by reference pursuant to the Act at such time and documents
otherwise deemed to be a part thereof or included therein by the
rules and regulations (the “ Rules and Regulations
”) of the Commission under the Act, is herein called the
“ Registration Statement ”; provided that
references to the Effective Date (as hereinafter defined) or other
matters relating to the Registration Statement shall be deemed to
be references to the Effective Date or such other matters relating
to the registration statement included in the Registration
Statement. The Registration Statement at the time it originally
became effective is herein called the “ Original
Registration Statement .”
“
Base Prospectus ” means the base prospectus included
in the Registration Statement, as amended at the time of the filing
of the Prospectus. “ Preliminary Prospectus ”
means, with respect to each preliminary prospectus supplement used
in connection with the offering of the Notes that omitted certain
Rule 430B Information, the base prospectus and such
preliminary prospectus supplement along with the information
referred to therein under the caption “AmeriCredit’s
Static Pool Information” regardless of whether such
information is part of such Preliminary Prospectus, the
Registration Statement or the Base Prospectus. “
Prospectus ” means the Prospectus Supplement together
with the Base Prospectus, as amended at the time of the filing of
the Prospectus, including the documents incorporated by reference
therein pursuant to the Act at the time of execution of this
Agreement. “ Prospectus Supplement ” means the
prospectus supplement to the Base Prospectus that is first filed
after the Execution Time pursuant to Rule 424(b), along with the
information referred to therein under the caption
“AmeriCredit’s Static Pool Information”
regardless of whether such information is part of the Prospectus,
the Registration Statement or the Base Prospectus.
(ii) The
Sponsor has included in the Registration Statement, as amended at
the Effective Date, all information required by the Act and the
Rules and Regulations to be included in the Prospectus with respect
to the Notes and the offering thereof and as of the Effective Date
the Registration Statement complied in all material respects with
the Rules and Regulations. As filed, each Preliminary Prospectus
includes all
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information
with respect to the Notes and the offering thereof required by the
Act and the Rules and Regulations with respect to a preliminary
prospectus and complies in all material respects with the Rules and
Regulations. As filed, the Prospectus shall include all information
with respect to the Notes and the offering thereof required by the
Act and the Rules and Regulations, shall comply in all material
respects with the Rules and Regulations and, except to the extent
that the Underwriters shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Underwriters prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the most recent Preliminary Prospectus) as the Sponsor has advised
the Underwriters, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in
Rule 415(a)(1)(x).
For
purposes of this Agreement, “ Applicable Time ”
shall have the meaning referred to in Section 2.A(vi) hereof.
“ Effective Time ” means, with respect to the
Registration Statement, the date and time as of which the
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared by the Commission, or, if later, the
earlier of the date of filing of a prospectus required under
Rule 424 deemed to be part of the Registration Statement or
the date and time of the first sale of Notes and “
Effective Date ” means the date of the Effective Time.
“ Execution Time ” shall mean the date and time
that this Agreement is executed and delivered by the parties
hereto. “ Rule 405 ,” Rule 415
,” “ Rule 424 ,” “
Rule 430B, ” “ Rule 433 ”
and “ Regulation S-K ” refer to such rules
or regulations under the Act. Any reference herein to the
Registration Statement, the Base Prospectus, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), on or before the Effective Date of the Registration
Statement or the date of first use of a Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the
terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Base Prospectus, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, such Preliminary Prospectus or the Prospectus,
as the case may be, deemed to be incorporated therein by reference
or otherwise deemed by the Rules and Regulations to be a part
thereof or included therein. For purposes of this Agreement, all
references to the Registration Statement, a Preliminary Prospectus,
the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to refer to the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“ EDGAR ”).
(iii) The
Sponsor meets the requirements for use of Form S-3 under the Act.
The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x). At the time of
filing the Original Registration Statement, at the earliest time
thereafter that the Sponsor or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes
and at the date hereof, the Sponsor was not and is not an
“ineligible issuer”, as defined in Rule 405 of the
Rules and Regulations.
(iv) The
Original Registration Statement became effective on April 28,
2006, and any post-effective amendment thereto also has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Sponsor, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. Prior to the
issuance of the Notes, the Indenture will have been duly qualified
under the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”).
(v) Neither
the Sponsor nor any of its affiliates has distributed or otherwise
used or will distribute or otherwise use any free writing
prospectus (as defined in Rule 405) relating to the Notes;
provided that the Sponsor and its affiliates shall be permitted to
issue press releases regarding the Notes after the Applicable
Time.
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(vi) At
the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date
with respect to the Underwriters pursuant to Rule 430B(f)(2) and at
the Closing Time, the Registration Statement complied and will
comply in all material respects with the applicable requirements of
the Act, the Exchange Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder and
did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; no
Preliminary Prospectus, at the Applicable Time or the Closing Time,
included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; and neither the Prospectus nor any amendment or
supplement thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time,
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Sponsor makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Sponsor by the Underwriters as Underwriter Information.
The
term “ Underwriter Information ” means
(A) with respect to the Prospectus Supplement, (i) on the
cover page of the Prospectus Supplement, the information in the
table under the headings entitled “Price to Public”,
“Underwriting Discounts” and “Proceeds to
Seller” and (ii) in the body of the Prospectus Supplement and
within the section entitled “Underwriting”,
(a) the paragraph immediately following the table listing the
Underwriters’ respective commitments and (b) the third
paragraph following the second paragraph containing three bulleted
sub-paragraphs and (B) with respect to each Preliminary Prospectus,
in the body of the related Preliminary Prospectus and within the
section entitled “Underwriting”, the third paragraph
following the second paragraph containing the three bulleted
sub-paragraphs. The term “ Excluded Sections ”
means (A) the Underwriter Information and (B) the
sections of each Preliminary Prospectus and the Prospectus
Supplement within the sections entitled “The Insurer”
and “The Policy.”
To
the extent that the Underwriters have provided to the Sponsor any
Other Offering Document (as defined below), the Sponsor has filed
such Other Offering Document as required by, and within the time
frames prescribed by, the Rules and Regulations; provided ,
that the Sponsor shall not be required to have filed any Other
Offering Document that consists solely of information (A)
contemplated by Rule 134 of the Rules and Regulations and
included or to be included in a Preliminary Prospectus or the
Prospectus Supplement or (B) contemplated by Rule 172(a) of
the Rules and Regulations or (C) that is not otherwise
required to be filed pursuant to the Rules and
Regulations.
Each
Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As
used in this subsection and elsewhere in this Agreement, “
Applicable Time ” means 2:15 p.m., New York City time,
on September 14, 2006 or such other time as agreed by the
Sponsor.
(vii) The
documents incorporated by reference in the Registration Statement,
each Preliminary Prospectus and the Prospectus, when they were
filed with the Commission, conformed in all material respects to
the requirements of the Securities Act or the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
as applicable, and the Rules and Regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and
incorporated by reference in the Registration Statement, each
Preliminary Prospectus or 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 of
the Commission thereunder and will not contain an untrue
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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.
(viii) Since
the respective dates as of which information is given in the
Registration Statement, the most recent Preliminary Prospectus and
Prospectus, or the Registration Statement, such Preliminary
Prospectus or Prospectus as amended or supplemented, (x) there
has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition,
stockholders’ equity, results of operations, regulatory
situation or business prospects of the Sponsor and (y) the
Sponsor has not entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Sponsor
that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Notes,
otherwise than as set forth or contemplated in the Registration
Statement, such Preliminary Prospectus or Prospectus, as so amended
or supplemented.
(ix) The
Sponsor is not aware of (x) any request by the Commission for
any further amendment of the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus or for any
additional information, (y) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose or (z) any notification with respect to the
suspension of the qualification of the Notes for the sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(x) The
Sponsor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the general
affairs, business, management, financial condition,
stockholders’ equity, results of operations, regulatory
situation or business prospects of the Sponsor and has all power
and authority necessary to own or hold its properties, to conduct
the business in which it is engaged and to enter into and perform
its obligations under each Sponsor Agreement and to cause the
Securities to be issued.
(xi) There
are no actions, proceedings or investigations pending before or
threatened by any court, administrative agency or other tribunal to
which the Sponsor is a party or of which any of its properties is
the subject (i) which if determined adversely to it is likely
to have a material adverse effect individually, or in the
aggregate, on the general affairs, business, management, financial
condition, stockholders’ equity, results of operations,
regulatory situation or business prospects of the Sponsor,
(ii) asserting the invalidity of any Sponsor Agreement, in
whole or in part, or the Securities, (iii) seeking to prevent
the issuance of the Securities or the consummation by the Companies
of any of the transactions contemplated by any Sponsor Agreement,
in whole or in part, or (iv) which if determined adversely is
likely to materially and adversely affect the performance by the
Sponsor of its obligations under, or the validity or enforceability
of, any Sponsor Agreement, in whole or in part, or the
Securities.
(xii) Each
Sponsor Agreement has been, or, when executed and delivered will
have been, duly authorized, validly executed and delivered by the
Sponsor and each Sponsor Agreement constitutes, a valid and binding
agreement of the Sponsor, enforceable against the Sponsor in
accordance with its respective terms, except to the extent that the
enforceability hereof may be subject (x) to insolvency,
reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability
now or hereafter in effect relating to or affecting
creditors’ rights generally, (y) to general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to
rights of indemnity under this Agreement, to limitations of public
policy under applicable securities laws.
(xiii) The
issuance and delivery of the Securities, and the execution,
delivery and performance of each Sponsor Agreement and the
consummation of the transactions contemplated hereby and thereby,
do not and will not conflict with or result in a breach of or
violate any term or provision of or
5
constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Sponsor is
a party, by which the Sponsor may be bound or to which any of the
property or assets of the Sponsor or any of its subsidiaries may be
subject, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the
Sponsor or any law, statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Sponsor or any of its respective properties or assets.
(xiv) PricewaterhouseCoopers
LLP is an independent public accountant with respect to the Sponsor
as required by the Securities Act and the Rules and
Regulations.
(xv) No
consent, approval, authorization, order, registration or
qualification of or with any federal or state court or governmental
agency or body of the United States is required for the issuance
and sale of the Notes, or the consummation by the Sponsor of the
other transactions contemplated by this Agreement, except the
registration under the Securities Act of the Securities and such
consents, approvals, authorizations, registrations or
qualifications as may have been obtained or effected or as may be
required under securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the
Underwriters.
(xvi) The
Sponsor possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Registration Statement, the
most recent Preliminary Prospectus and Prospectus (or is exempt
therefrom) and the Sponsor has not received notice of any
proceedings relating to the revocation or modification of such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, is likely to materially and adversely affect the conduct
of its business, operations, financial condition or
income.
(xvii) The
Sponsor will not conduct its operations while any of the Securities
are outstanding in a manner that would require the Sponsor or the
Trust to be registered as an “investment company” under
the Investment Company Act of 1940, as amended (the “ 1940
Act ”), as in effect on the date hereof.
(xviii) Any
taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of any Sponsor Agreement, the Note
Insurance Policy and the Securities that are required to be paid by
the Sponsor at or prior to the Closing Date have been paid or will
be paid at or prior to the Closing Date.
(xix) At
the Closing Date, each of the representations and warranties of the
Sponsor set forth in any Sponsor Agreement will be true and correct
in all material respects.
(xxi) At
the Closing Time, no Event of Default or Servicer Termination Event
has occurred and is continuing.
(xxii) Any
certificate signed by an officer of the Sponsor and delivered to
the Representative or the Representative’s counsel in
connection with an offering of the Notes shall be deemed, and shall
state that it is, a representation and warranty as to the matters
covered thereby to each person to whom the representations and
warranties in this Section 2A are made.
B.
The Seller represents, warrants and agrees with the Underwriters,
that as of the Execution Time, as of the Applicable Time and as of
the Closing Date:
(i) None
of (a) the Registration Statement, at the time the Original
Registration Statement became effective, at the respective times
that each amendment thereto became effective, at each deemed
effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) and at the Closing Time,
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(b) the
most recent Preliminary Prospectus, at the Applicable Time, and
(c) the Prospectus or any amendment or supplement thereto, at
the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, contains or will contain, as
applicable, any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein not misleading.
(ii) The
documents incorporated by reference in the Registration Statement,
each Preliminary Prospectus and the Prospectus Supplement, when
they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Exchange
Act and the Rules and Regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
any further documents so filed and incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus or
the Prospectus Supplement, when such documents are filed with the
Commission will conform in all material respects to the
requirements of the Exchange Act and the Rules and Regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iii) Since
the respective dates as of which information is given in the
Registration Statement, the most recent Preliminary Prospectus and
the Prospectus Supplement, (x) there has not been any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business,
management, financial condition, stockholders’ equity,
results of operations, regulatory situation or business prospects
of the Seller and (y) the Seller has not entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Seller that, in either case, would
reasonably be expected to materially adversely affect the interests
of the holders of the Securities, otherwise than as set forth or
contemplated in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus Supplement, as so amended
or supplemented.
(iv) The
Seller is not aware of (x) any request by the Commission for
any further amendment of the Registration Statement, any
Preliminary Prospectus or the Prospectus or for any additional
information, (y) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose
or (z) any notification with respect to the suspension of the
qualification of the Notes for the sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose.
(v) The
Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the general
affairs, business, management, financial condition,
stockholders’ equity, results of operations, regulatory
situation or business prospects of the Seller and has all power and
authority necessary to own or hold its properties, to conduct the
business in which it is engaged and to enter into and perform its
obligations under each Seller Agreement.
(vi) There
are no actions, proceedings or investigations pending before or
threatened by any court, administrative agency or other tribunal to
which the Seller is a party or of which any of its properties is
the subject (i) which if determined adversely to it is likely
to have a material adverse effect individually, or in the
aggregate, on the general affairs, business, management, financial
condition, stockholders’ equity, results of operations,
regulatory situation or business prospects of the Seller,
(ii) asserting the invalidity of any Seller Agreement in whole
or in part, (iii) seeking to prevent the issuance of the
Securities or the consummation by the Seller of any of the
transactions contemplated by any Seller Agreement in whole or in
part, or (iv) which if determined adversely is likely to
materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, any
Seller Agreement in whole or in part, or the Securities.
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(vii) Each
Seller Agreement has been, or, when executed and delivered will
have been, duly authorized, validly executed and delivered by the
Seller and each Seller Agreement constitutes, a valid and binding
agreement of the Seller, enforceable against the Seller in
accordance with their respective terms, except to the extent that
the enforceability thereof may be subject (x) to insolvency,
reorganization, moratorium, receivership, conservatorship, or other
similar laws, regulations or procedures of general applicability
now or hereafter in effect relating to or affecting
creditors’ rights generally, (y) to general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to
rights of indemnity under this Agreement, to limitations of public
policy under applicable securities laws.
(viii) The
execution, delivery and performance of each Seller Agreement by the
Seller and the consummation of the transactions contemplated hereby
and thereby, do not and will not conflict with or result in a
breach of or violate any term or provision of or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Seller is
a party, by which the Seller may be bound or to which any of the
property or assets of the Seller or any of its subsidiaries may be
subject, nor will such actions result in any violation of the
provisions of the articles of incorporation of the Seller (or any
amendments thereto) or any law, statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Seller or any of its respective properties or
assets.
(ix) PricewaterhouseCoopers
LLP is an independent public accountant with respect to the Seller
as required by the Securities Act and the Rules and
Regulations.
(x) No
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
of the United States is required for the issuance and sale of the
Notes, or the consummation by the Seller of the transactions
contemplated by each Seller Agreement except the registration under
the Securities Act of the Securities and such consents, approvals,
authorizations, registrations or qualifications as may have been
obtained or effected or as may be required under securities or Blue
Sky laws in connection with the purchase and distribution of the
Notes by the Underwriters.
(xi) The
Seller possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the most recent Preliminary
Prospectus and Prospectus (or each is exempt therefrom) and the
Seller has not received notice of any proceedings relating to the
revocation or modification of such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, is likely to materially
and adversely affect the conduct of its business, operations,
financial condition or income.
(xii) The
Seller will have the power and authority to sell the Receivables to
the Trust. Following the conveyance of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement, the Trust will own
the Receivables free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, “ Liens ”) other than Liens
created by the Sale and Servicing Agreement.
(xiii) As
of the Cutoff Date each of the Receivables will meet the
eligibility criteria described in the most recent Preliminary
Prospectus and the Prospectus.
(xiv) Neither
the Seller nor the Trust created by the Trust Agreement will
conduct their operations while any of the Securities are
outstanding in a manner that would require the Seller or the Trust
to be registered as an “investment company” under the
1940 Act, as in effect on the date hereof.
(xv) Each
of the Securities, the Indenture, the Sale and Servicing Agreement,
the Purchase Agreement, the Trust Agreement, the Insurance
Agreement and the Note Insurance Policy conforms in all material
respects to the descriptions thereof contained in the most recent
Preliminary Prospectus and the Prospectus.
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(xvi) Any
taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of any Seller Agreement, the Note
Insurance Policy and the Securities that are required to be paid by
the Seller at or prior to the Closing Date have been paid or will
be paid at or prior to the Closing Date.
(xvii) At
the Closing Date, each of the representations and warranties of the
Seller set forth in any Seller Agreement will be true and correct
in all material respects.
(xix) The
direction by the Seller to the Owner Trustee to execute,
authenticate, issue and deliver the Certificate will be duly
authorized by the Seller and, assuming the Owner Trustee has been
duly authorized to do so, when executed, authenticated, issued and
delivered by the Owner Trustee in accordance with the Trust
Agreement, the Certificate will be validly issued and outstanding
and will be entitled to the benefits of the Trust
Agreement.
Any
certificate signed by an officer of the Seller and delivered to the
Representative or the Representative’s counsel in connection
with an offering of the Notes shall be deemed, and shall state that
it is, a representation and warranty as to the matters covered
thereby to each person to whom the representations and warranties
in this Section 2B are made.
Section 3.
Purchase and Sale . The Underwriters’ commitment to
purchase the Notes pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties
of the Companies herein contained and shall be subject to the terms
and conditions herein set forth. The Sponsor agrees to instruct the
Trust to issue the Notes to the Underwriters, and the Underwriters
agree to purchase on the date of issuance thereof. The purchase
prices for the Notes shall be as set forth on Schedule 1
hereto.
Section 4.
Delivery and Payment . Payment of the purchase price for,
and delivery of, any Notes to be purchased by the Underwriters
shall be made at the office of Dewey Ballantine LLP, 1301 Avenue of
the Americas, New York, New York, or at such other place as shall
be agreed upon by the Representative and the Companies, at
10:00 a.m. New York City time on September 26, 2006 (the
“ Closing Time ”), or at such other time or date
as shall be agreed upon in writing by the Representative and the
Companies. Payment shall be made by wire transfer of same day funds
payable to the account designated by the Sponsor. Each of the Notes
so to be delivered shall be represented by one or more global
certificates registered in the name of Cede & Co., as nominee
for The Depository Trust Company.
The
Companies agree to have the Notes available for inspection,
checking and packaging by the Representative in New York, New York,
not later than 12:00 P.M. New York City time on the business
day prior to the Closing Date.
Section 5.
Offering by Underwriters . It is understood that the
Underwriters propose to offer the Notes for sale to the public as
set forth in the Prospectus.
Section 6.
Covenants of the Companies . Each of the Companies covenants
with the Underwriters as follows:
A.
Subject to Section 6.B, it will comply with the requirements
of Rules 424(b) and 430B and will notify the Representative
immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the
Commission relating to the Registration Statement, any Preliminary
Prospectus or the Prospectus, (iii) any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, (iv) the issuance
by
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the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus, or of the suspension of the qualification
of the Notes for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes and (v) the happening of any event during the period
referred to in Section 6.D which, in the judgment of the
Sponsor, makes the Registration Statement or the Prospectus contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading. The Companies will make
every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain as soon as possible the
lifting thereof.
B.
Prior to the termination of the offering of the Notes, the Sponsor
will not file any amendment to the Registration Statement or any
amendment, supplement or revision to either the most recent
Preliminary Prospectus or to the Prospectus, unless the Sponsor has
furnished the Underwriters a copy for their review prior to such
proposed filing or use, as the case may be, and will not file or
use any such document to which the Underwriters shall reasonably
object.
C.
It has furnished or will deliver to the Underwriters and counsel
for the Underwriters, without charge, a signed copy of the Original
Registration Statement and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein or otherwise deemed to be a part thereof) and a signed copy
of all consents and certificates of experts, and will also deliver
to the Underwriters, without charge, a conformed copy of the
Original Registration Statement and of each amendment thereto
(without exhibits) for the Underwriters. The copies of the Original
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
D.
To deliver to the Underwriters, without charge, as many copies of
each Preliminary Prospectus and the Prospectus as the Underwriters
may reasonably request, and the Sponsor hereby consents to the use
of such copies for purposes permitted by the Act. The Companies
will furnish to the Underwriters, without charge, during the period
when a prospectus is required to be delivered under the Act or the
Exchange Act, such number of copies of the Prospectus as the
Underwriters may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
E.
To comply with the Act and the Rules and Regulations, the Exchange
Act and the rules and regulations thereunder and the Trust
Indenture Act and the rules and regulations thereunder so as to
permit the completion of the distribution of the Notes as
contemplated in this Agreement, the Sale and Servicing Agreement,
the Purchase Agreement, the Indenture, the Trust Agreement, the
Registration Statement and the Prospectus. If at any time when a
prospectus is required by the Act to be delivered in connection
with sales of the Notes, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of
counsel to the Companies, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the Act or
the Rules and Regulations, the Sponsor will promptly prepare and
file with the Commission, subject to the review and approval
provisions afforded to the Underwriters described in
Section 6.B, such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus
comply with such requirements, the Sponsor will use its best
efforts to have such amendment or new registration statement
declared effective as soon as practicable and the Seller will
furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably
request. Any such filing shall not operate as a waiver or
limitation of any right of the Underwriters hereunder.
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F.
The Seller will use its best efforts, in cooperating with the
Sponsor and the Underwriters, to qualify the Notes for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may
designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Notes. The Seller will cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been so qualified.
G.
The Seller will not, without the prior written consent of the
Representative, contract to sell any automobile receivables-backed
certificates, automobile receivables-backed notes or other similar
securities either directly or indirectly (as through the Sponsor)
for a period of five (5) business days after the later of the
termination of the syndicate or the Closing Date.
H.
So long as the Notes shall be outstanding, the Seller shall, upon
the request of any Underwriter, deliver to such Underwriter as soon
as such statements are furnished to the Trustee: (i) the
annual statement as to compliance of the Servicer delivered to the
Trustee pursuant to Section 4.10(a) of the Sale and Servicing
Agreement and the annual assessments of compliance with servicing
criteria; (ii) the annual accountants attestations in respect
of the annual assessments of compliance and any other statement of
a firm of independent public accountants furnished to the Trustee
pursuant to Section 4.11 of the Sale and Servicing Agreement
with respect to the Servicer; and (iii) the monthly reports
furnished to the Noteholders pursuant to Section 5.10 of the
Sale and Servicing Agreement.
I.
So long as any of the Notes are outstanding, the Seller will
furnish to the Underwriters (i) as soon as practicable after
the end of the fiscal year of the Trust, all documents required to
be distributed to Noteholders and other filings with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder with respect to any securities issued by the Sponsor or
the Seller that are (A) non-structured equity or debt offering
of the Sponsor or the Seller or (B) the Notes and (ii) from
time to time, any other information concerning the Sponsor or the
Seller filed with any government or regulatory authority which is
otherwise publicly available, as the Underwriters shall reasonably
request in writing.
J.
To apply the net proceeds from the sale of the Notes in the manner
set forth in the Prospectus.
K.
If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the
knowledge of the Seller, there shall have been any material change,
or any development involving a prospective material change in or
affecting the general affairs, management, financial position,
shareholders’ equity or results of operations of the Sponsor
or the Seller, the Seller will give prompt written notice thereof
to the Underwriters.
L.
To the extent, if any, that the ratings provided with respect to
the Notes by the rating agency or agencies that initially rate the
Notes are conditional upon the furnishing of documents or the
taking of any other actions by the Sponsor or the Seller, the
Seller shall use its best efforts to furnish or cause to be
furnished such documents and take any such other
actions.
Section 7.
Conditions of the Obligations of the Underwriters . The
obligations of the Underwriters to purchase the Notes pursuant to
this Agreement are subject to (i) the accuracy on and as of
the Closing Date of the representations and warranties on the part
of the Companies herein contained, (ii) the accuracy of the
statements of officers of the Companies made pursuant hereto,
(iii) the performance by the Companies of all of
their
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