Exhibit 1.1
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 200
-
Class A-1
% Asset Backed Notes
Class A-2
% Asset Backed Notes
Class A-3
% Asset Backed Notes
[Class A-4
% Asset Backed Notes
Class B
%Asset Backed Notes
Class C
% Asset Backed Notes
Class D
%Asset Backed Notes]
UNDERWRITING
AGREEMENT
[UNDERWRITER]
As Representative of the
Underwriters
[Address]
, 200
Ladies and Gentlemen:
AmeriCredit Financial Services,
Inc., a corporation organized and existing under the laws of
Delaware (the “ Sponsor ”), and [AFS SenSub
Corp., a corporation organized and existing under the laws of
Nevada]/[AFS Funding Trust, a Delaware statutory trust] (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 $
Class A-1
% Asset Backed Notes, $
Class A-2
% Asset Backed Notes, $
Class A-3
% Asset Backed Notes and $
[Class A-4
% Asset Backed Notes][Class B
% Asset Backed Notes, $
Class C
% Asset Backed Notes and $
Class D
% Asset Backed Notes (collectively, the “ Notes
”). The Notes are to be issued by AmeriCredit Automobile
Receivables Trust 200 -
(the “ Trust ”) pursuant to an Indenture, to be
dated as of
, 200_ (the “ Indenture ”), between the Trust
and [Trustee] (“[ Trustee ]”), a
banking
, as indenture trustee (the “ Trustee ”) and as
Trust Collateral Agent. In addition to the Notes, the Trust will
also issue an [$
Class E Notes (the “Class E Notes”) issued pursuant to
the Indenture and an] Asset Backed Certificate representing the
beneficial ownership interests in the Trust (the “
Certificate ”) (the Notes and the Certificate,
collectively, the “ Securities ”) pursuant to a
Trust Agreement, dated as of
, 200 , as amended and restated as of
, 200 , between the Seller and [Owner Trustee],
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
, 200 (the “ Cutoff Date
”).
[The Notes will have the benefit of
a note insurance policy (the “ Note Insurance Policy
”), issued by [Note Insurer], a
insurance
(the “ Note Insurer ”).]
[In connection with the issuance of
the Note Insurance Policy (i) the Companies, the Trust and the
Note Insurer will execute and deliver an Insurance and Indemnity
Agreement dated as of
, 200 (the “ Insurance Agreement
”), (ii) the Seller, the Representative (as defined
below) and the Note Insurer will execute and deliver an
Indemnification Agreement dated as of
, 200 (the “ Indemnification
Agreement ”) and (iii) the Trust, the Trustee and
the Note Insurer will execute and deliver a Spread Account
Agreement dated as of
, 200 (the “ Spread Account
Agreement ”).]
As used herein, the term “
Sponsor Agreements ” means the Sale and Servicing
Agreement dated as of
, 200 among the Trust, the Sponsor, as
servicer, the Seller and [Trustee], as trust collateral agent and
backup servicer (the “ Sale and Servicing Agreement
”), the Purchase Agreement between the Sponsor and the Seller
dated as of
, 200 (the “ Purchase Agreement
”), [the Insurance Agreement, the Indemnification Agreement]
and this Agreement; the term “ Seller Agreements
” means the Sale and Servicing Agreement, the Purchase
Agreement, the Trust Agreement, [the Insurance Agreement, the
Indemnification 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. [Underwriter] is acting as representative of the
Underwriters and in such capacity, is hereinafter referred to as
the “ Representative .”
[It is anticipated that the Class E
Notes will be privately placed, primarily with either institutional
investors or accredited investors and that the Certificate will be
retained by the Seller or an affiliate of the Seller.] The
Certificate will be retained by the Seller.
Defined terms used herein shall have
their respective meanings as set forth in the Sale and Servicing
Agreement.
Section 2. Representations and
Warranties . A. The Sponsor represents, warrants and agrees
with the Underwriters, that:
(i) A Registration Statement on Form
S-3 (No. [333-130439]/[333-130439-01]) has (a) been prepared
by the Sponsor on such Form in conformity with the requirements of
the Securities Act of 1933, as amended (the “ Securities
Act ”) and the rules and regulations (the “
Rules and Regulations ”) of the United States
Securities and Exchange Commission (the “ Commission
”) thereunder, (b) been filed with the Commission and
(c) been declared effective by the Commission, and no stop
order suspending the effectiveness of the Registration Statement
has been issued, and no proceeding for that purpose has been
initiated or threatened, by the Commission. Copies of such
Registration Statement have been delivered by the Sponsor to the
Underwriters. There are no contracts or documents of the Sponsor
which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by
reference therein on or prior to the Effective Date of the
Registration Statement. The conditions for use of Form S-3, as set
forth in the General Instructions thereto, have been
satisfied.
As used herein, the term “
Effective Date ” means the date on and time at which
the Registration Statement became effective, or the date on and the
time at which the most recent post-effective amendment to such
Registration Statement, if any, was declared effective by the
Commission. The term “ Registration Statement ”
means (i) the registration statement referred to in the
preceding paragraph, including the exhibits thereto, (ii) all
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 and (iii) any post-effective
amendment filed and declared effective prior to the date of
issuance of the Notes. The term “ Base Prospectus
” means the prospectus included in the Registration
Statement. [The term “ Preliminary Prospectus
Supplement ” means the preliminary prospectus supplement
dated April 1, 2005, specifically related to the Notes and
filed with the Commission pursuant to Rule 424(b)(3) of the Rules
and Regulations on or about
, 20 .] The term “
Prospectus Supplement ” means the prospectus
supplement dated the date hereof, specifically relating to the
Notes, as filed with the Commission pursuant to Rule 424 of the
Rules and Regulations (the “ Prospectus Supplement
”). The term “ Company Offering Materials
” means, collectively, the Registration Statement, the Base
Prospectus and the Prospectus Supplement [and the Preliminary
Prospectus Supplement], each as it may be amended and supplemented
from time to time within the period ending ninety (90) days
after the date of this Underwriting Agreement, except for [(x) the
information set forth under the captions “The Insurer”
and “The Policy” and (y)] the Underwriter Information.
The term “ Underwriter Information ” means
(i) on the cover page of the Prospectus Supplement, the
information in the table under the
2
headings entitled “Price to Public”,
“Underwriting Discounts” and “Proceeds to
Seller” and (ii) in the body of the Prospectus
Supplement and within the Underwriting section, (a) the
paragraph immediately following the Class A-4 Notes
Underwriter commitment table, (b) the paragraph immediately
following the paragraph containing three bulleted sub-paragraphs,
(c) the fourth paragraph following the paragraph containing
the three bulleted sub-paragraphs and (d) the final paragraph
of the section. The term “ Prospectus ” means,
together, the Base Prospectus and the Prospectus
Supplement.
To the extent that the Underwriters
either (i) have provided to the Sponsor Collateral term sheets
(as hereinafter defined) that such Underwriter has provided to a
prospective investor, the Sponsor has filed such Collateral term
sheets as an exhibit to a report on Form 8-K within two business
days of its receipt thereof, or (ii) have provided to the
Sponsor Structural term sheets or Computational Materials (each as
defined below) that such Underwriter has provided to a prospective
investor, the Sponsor will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural term
sheet and Computational Materials, as soon as reasonably
practicable after the date of this Agreement, but in any event, not
later than the date on which the Prospectus is made available to
the Underwriter in final form.
(ii) The Registration Statement and
the Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case may
be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Company Offering Materials
do not and will not, as of the Effective Date or filing date
thereof and of any amendment thereto, as appropriate, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) The documents incorporated by
reference in the Company Offering Materials, when they were filed
with the Commission conformed in all material respects to the
requirements of the Securities Act or the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), as
applicable, and the Rules and Regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and
incorporated by reference in the Company Offering Materials, when
such documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act and the
Rules and Regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iv) Since the respective dates as
of which information is given in the Company Offering Materials, or
the Company Offering Materials as amended and supplemented,
(x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial
condition, stockholders’ equity, results of operations,
regulatory situation or business prospects of the Sponsor and
(y) the Sponsor has not entered into any transaction or
agreement (whether or not in the ordinary course of business)
material to the Sponsor that, in either case, would reasonably be
expected to materially adversely affect the interests of the
holders of the Notes, otherwise than as set forth or contemplated
in the Company Offering Materials, as so amended or
supplemented.
(v) The Sponsor is not aware of
(x) any request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional
information, (y) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose
or (z) any notification with respect to the suspension of the
qualification of the Notes for the sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose.
(vi) The Sponsor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, is
duly qualified to do business and is in good
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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.
(vii) There are no actions,
proceedings or investigations pending before or threatened by any
court, administrative agency or other tribunal to which the Sponsor
is a party or of which any of its properties is the subject
(i) which if determined adversely to it is likely to have a
material adverse effect individually, or in the aggregate, on the
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.
(viii) Each Sponsor Agreement has
been, or, when executed and delivered will have been, duly
authorized, validly executed and delivered by the Sponsor and each
Sponsor Agreement constitutes, a valid and binding agreement of the
Sponsor, enforceable against the Sponsor in accordance with its
respective terms, except to the extent that the enforceability
hereof may be subject (x) to insolvency, reorganization,
moratorium, receivership, conservatorship, or other similar laws,
regulations or procedures of general applicability now or hereafter
in effect relating to or affecting creditors’ rights
generally, (y) to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law),
and (z) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable
securities laws.
(ix) The issuance and delivery of
the Securities, and the execution, delivery and performance of each
Sponsor Agreement and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with
or result in a breach of or violate any term or provision of or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, or other agreement or instrument to which the
Sponsor is a party, by which the Sponsor may be bound or to which
any of the property or assets of the Sponsor or any of its
subsidiaries may be subject, nor will such actions result in any
violation of the provisions of the articles of incorporation or
by-laws of the Sponsor or any law, statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Sponsor or any of its respective properties
or assets.
(x) [Accountant] is an independent
public accountant with respect to the Sponsor as required by the
Securities Act and the Rules and Regulations.
(xi) No consent, approval,
authorization, order, registration or qualification of or with any
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.
(xii) The Sponsor possesses all
material licenses, certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now conducted by it and as
described in the Company Offering Materials (or is exempt
therefrom) and the Sponsor has not received notice of any
proceedings relating to the revocation or modification of such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision,
4
ruling or finding, is likely to materially and
adversely affect the conduct of its business, operations, financial
condition or income.
(xiii) The Sponsor will not conduct
its operations while any of the Securities are outstanding in a
manner that would require the Sponsor or the Trust to be registered
as an “investment company” under the Investment Company
Act of 1940, as amended (the “ 1940 Act ”), as
in effect on the date hereof.
(xiv) Any taxes, fees and other
governmental charges in connection with the execution, delivery and
issuance of any Sponsor Agreement, 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.
(xv) At the Closing Date, each of
the representations and warranties of the Sponsor set forth in any
Sponsor Agreement will be true and correct in all material
respects.
(xvi) Any certificate signed by an
officer of the Sponsor and delivered to the Representative or the
Representative’s counsel in connection with an offering of
the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to
each person to whom the representations and warranties in this
Section 2A are made.
B. The Seller represents, warrants
and agrees with the Underwriters, that:
(i) The Company Offering Materials
do not and will not, as of the applicable filing date therefor and
any amendment or supplement thereto, contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading.
(ii) The documents incorporated by
reference in the Company Offering Materials, when they were filed
with the Commission conformed in all material respects to the
requirements of the Securities Act or the Exchange Act and the
Rules and Regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the
Company Offering Materials, when such documents are filed with the
Commission will conform in all material respects to the
requirements of the Exchange Act and the Rules and Regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iii) Since the respective dates as
of which information is given in the Company Offering Materials,
(x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial
condition, stockholders’ equity, results of operations,
regulatory situation or business prospects of the Seller and
(y) the Seller has not entered into any transaction or
agreement (whether or not in the ordinary course of business)
material to the Seller that, in either case, would reasonably be
expected to materially adversely affect the interests of the
holders of the Securities, otherwise than as set forth or
contemplated in the Company Offering Materials, as so amended or
supplemented.
(iv) The Seller is not aware of
(x) any request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional
information, (y) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose
or (z) any notification with respect to the suspension of the
qualification of the Notes for the sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose.
5
(v) The Seller has been duly
organized and is validly existing as a [corporation]/[statutory
trust] in good standing under the laws of its jurisdiction of
[incorporation]/[formation] 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.
(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]/[trust agreement] 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) [Accountant] is an independent
public accountant with respect to the Seller as required by the
Securities Act and the Rules and Regulations.
(x) No consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body of the United States is
required for the issuance and sale of the Notes, or the
consummation by the Seller of the transactions contemplated by each
Seller Agreement except the registration under the Securities Act
of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may have been obtained or
effected or as may be required under securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the
Underwriters.
(xi) The Seller possesses all
material licenses, certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now conducted by it and as
described in the Company Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any
proceedings relating to the revocation or modification of such
license,
6
certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or
income.
(xii) The Seller will have the power
and authority to sell the Receivables to the Trust. Following the
conveyance of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Trust will own the Receivables free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively, “
Liens ”) other than Liens created by the Sale and
Servicing Agreement.
(xiii) As of the Cutoff Date each of
the Receivables will meet the eligibility criteria described in the
Prospectus.
(xiv) Neither the Seller nor the
Trust created by the Trust Agreement will conduct their operations
while any of the Securities are outstanding in a manner that would
require the Seller or the Trust to be registered as an
“investment company” under the 1940 Act, as in effect
on the date hereof.
(xv) Each of the Securities, the
Sale and Servicing Agreement, the Purchase Agreement, the Trust
Agreement, [the Indemnification Agreement and the Note Insurance
Policy] conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xvi) Any taxes, fees and other
governmental charges in connection with the execution, delivery and
issuance of any Seller Agreement, [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.
(xviii) The direction by the Seller
to the Owner Trustee to execute, authenticate, issue and deliver
the Certificate will be duly authorized by the Seller and, assuming
the Owner Trustee has been duly authorized to do so, when executed,
authenticated, issued and delivered by the Owner Trustee in
accordance with the Trust Agreement, the Certificate will be
validly issued and outstanding and will be entitled to the benefits
of the Trust Agreement.
Any certificate signed by an officer
of the Seller and delivered to the Representative or the
Representative’s counsel in connection with an offering of
the Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to
each person to whom the representations and warranties in this
Section 2B are made.
Section 3. Purchase and Sale
. The Underwriters’ commitment to purchase the Notes pursuant
to this Agreement shall be deemed to have been made on the basis of
the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein
set forth. The Sponsor agrees to instruct the Trust to issue the
Notes to the Underwriters, and the Underwriters agree to purchase
on the date of issuance thereof. The purchase prices for the Notes
shall be as set forth on Schedule 1 hereto.
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
, 200 (the “ Closing Date
”), or at such other time or date as shall be agreed upon in
writing by the Representative and the Companies. Payment shall be
made by wire transfer of same day funds payable to the account
designated by
7
the Sponsor. Each of the Notes so to be
delivered shall be represented by one or more global certificates
registered in the name of Cede & Co., as nominee for The
Depository Trust Company.
The Companies agree to have the
Notes available for inspection, checking and packaging by the
Representative in New York, New York, not later than 12:00 P.M. New
York City time on the business day prior to the Closing
Date.
Section 5. Offering by
Underwriters . It is understood that the Underwriters propose
to offer the Notes for sale to the public as set forth in the
Prospectus.
Section 6. Covenants of the
Companies . Each of the Companies covenants with the
Underwriters as follows:
A. To cause to be prepared a
Prospectus in a form approved by the Underwriters, to file such
Prospectus pursuant to Rule 424(b) under the Securities Act within
the time period prescribed by Rule 424(b) and to provide the
Underwriters with evidence satisfactory to the Underwriters of such
timely filing; to cause to be made no further amendment or any
supplement to the Registration Statement or to the Prospectus prior
to the 91 st day following the Closing Date
except as permitted herein; to give notice to the Underwriters of
the filing of any amendment to the Registration Statement which is
filed or becomes effective prior to the 91 st day following the Closing Date or
any supplement to the Prospectus or any amended Prospectus which is
filed prior to the 91 st day following the Closing Date and
to furnish the Underwriters with copies thereof; to file promptly
all reports and any global proxy or information statements required
to be filed by the Sponsor with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and, until the 91st day
following the Closing Date; to promptly advise the Underwriters of
its receipt of notice of the issuance by the Commission of any stop
order or of: (i) any order preventing or suspending the use of
the Prospectus; (ii) the suspension of the qualification of
the Notes for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose;
(iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or
for additional information. In the event of the issuance of any
stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Sponsor
promptly shall use its best efforts to obtain the withdrawal of
such order by the Commission.
B. To furnish promptly to the
Underwriters and to counsel for the Underwriters a signed copy of
the Registration Statement as originally filed with the Commission,
and of each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith.
C. To deliver promptly to the
Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case including exhibits);
(ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference
in the Prospectus (including exhibits thereto). If the delivery of
a prospectus is required at any time in connection with the
offering or sale of the Notes and if at such time any events shall
have occurred as a result of which the Prospectus, as then amended
or supplemented, would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Sponsor shall notify the Underwriters and, upon
the Underwriters’ request based upon the advice of counsel,
shall file such document and prepare and furnish without charge to
the Underwriters and to any dealer in securities as many copies as
the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects
such statement or omission or effects such compliance.
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D. To cause to be filed promptly
with the Commission, subject to Section 6E, any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Seller or the
Underwriters, be required by the Securities Act or requested by the
Commission. Neither the Underwriters’ consent to nor their
delivery of any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 7
hereof.
E. To cause to be furnished to the
Underwriters and counsel for the Underwriters, prior to filing with
the Commission, and to obtain the consent of the Underwriters,
which consent will not unreasonably be withheld, for the filing of
the following documents relating to the Notes: (i) any
amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the
Prospectus, or (ii) the Prospectus filed pursuant to Rule 424
of the Rules and Regulations.
F. 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, upon the Underwriters’ request,
shall deliver to the Underwriters 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;
(ii) the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 4.11
of the Sale and Servicing Agreement with respect to the Servicer,
but only insofar as such statement has been requested and delivered
pursuant to Section 4.11 of the Sale and Servicing Agreement;
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.
9
Section 7. Conditions of the
Obligations of the Underwriters . The obligations of the
Underwriters to purchase the Notes pursuant to this Agreement are
subject to (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of the Companies
herein contained, (ii) the accuracy of the statements of
officers of the Companies made pursuant hereto, (iii) the
performance by the Companies of all of their respective obligations
hereunder, and the performance by the Companies of all of their
respective obligations under the Sponsor Agreements and the Seller
Agreements and (iv) the following conditions as of the Closing
Date:
A. No stop order suspending the
effectiveness of the Registration Statement shall have been issued,
and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for
inclusion of additional information in the Registration Statement
or the Prospectus shall have been complied with.
B. The Underwriters shall have
received the Sale and Servicing Agreement, the Purchase Agreement,
the Indenture, the Trust Agreement, [the Indemnification Agreement]
and the Notes in form and substance satisfactory to the
Underwriters and duly executed by the signatories required pursuant
to the respective terms thereof.
C. The Underwriters shall have
received from Dewey Ballantine LLP, counsel for the Companies, a
favorable opinion, dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters
to the effect that:
(i) The issuance and sale of the
Notes have been duly authorized and, when executed, authenticated,
countersigned and delivered by the Trustee in accordance with the
Indenture and delivered and paid for pursuant to this Agreement,
will be validly issued and outstanding and will be entitled to the
benefits of the Trust Agreement and the Indenture,
respectively.
(ii) No authorization, approval,
consent or order of, or filing with, any court or governmental
agency or authority is necessary under the federal law of the
United States or the laws of the State of New York in connection
with the execution, delivery and performance by the Sponsor of the
Sponsor Agreements and by the Seller of the Seller Agreements,
except such as may be required under the Act or the Rules and
Regulations and Blue Sky or other state securities laws, filings
with respect to the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement and such other
approvals or consents as have been obtained.
(iii) Each Sponsor Agreement and
each Seller Agreement constitutes the legal, valid and binding
obligation of the Sponsor or the Seller, as appropriate,
enforceable against each of the Sponsor or the Seller, as
appropriate, in accordance with their respective terms, except that
as to enforceability such enforceme
