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, [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 [Indenture Trustee] (“ [Indenture
Trustee] ”), a [entity type], as indenture trustee (the
“ Trustee ”) and as Trust Collateral Agent. In
addition to the Notes, the Trust will also issue [a $_________
Class E Notes (the “ Class E Notes ”) issued
pursuant to the Indenture and] an Asset Backed Certificate
representing the beneficial ownership interests in the Trust (the
“ Certificate ”) (the Notes[, the Class E 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
”).
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 [Indenture 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 ”) and this Agreement; the term
“ Seller Agreements ” means the Sale and
Servicing Agreement, the Purchase Agreement, the Trust Agreement
and this Agreement.
[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 ”).]
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.]
Defined terms used herein shall have
their respective meanings as set forth in the Sale and Servicing
Agreement.
Section 2. A. Representations and
Warranties . 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 Sponsor has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement (Registration
No. [333-130439]/[333-130439-01]) on Form S-3, including
a related base prospectus and a form of prospectus supplement, for
the registration under the Securities Act of 1933, as amended (the
“ Act ”), of the offering and sale of the Notes.
The Sponsor may have filed one or more amendments thereto, each of
which amendments has previously been furnished to you. The Sponsor
has filed the 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 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 the base
prospectus, the preliminary prospectus supplement and the
supplement to the preliminary prospectus supplement used in
connection with the offering of the Notes that omitted certain Rule
430B Information along with the information referred to under the
caption “AmeriCredit’s Static Pool Information”
regardless of whether such information is part of the 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 such
filing, 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 under the caption “AmeriCredit’s Static
Pool Information” therein 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, the Preliminary Prospectus includes all
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 Underwriter shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you 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 Preliminary Prospectus) as the Sponsor has advised you, prior
to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by
Regulation S-K Item 512(a), 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
effective by the Commission, or 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, the 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 the 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, the 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, the 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, the 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. If the
Registration Statement contains the undertaking specified by
Regulation S-K Item 512(a), 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.
(vi) At the respective times the
Original Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to the
Underwriter 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; the Preliminary Prospectus,
at the Applicable Time, did not include an untrue statement of a
material fact or omit 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, the Preliminary Prospectus
or the Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Sponsor
by the Underwriter 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 the Preliminary Prospectus Supplement, in
the body of the Preliminary Prospectus Supplement and within the
section entitled “Underwriting”, the third paragraph
following the second paragraph containing the three bulleted
sub-paragraphs.
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 the Preliminary
Prospectus Supplement 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.
The Preliminary Prospectus and the
Prospectus delivered to the Underwriter 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 [time] a.m., New York City time, on _______, 200_ or such
other time as agreed by the Sponsor.
(vii) The documents incorporated by
reference in the Registration Statement, Preliminary Prospectus and
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, 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 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,
Preliminary Prospectus and Prospectus, or the Registration
Statement, Preliminary Prospectus or Prospectus 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 Registration Statement, 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 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
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) [Accountant] 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, 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.
(xx) 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 Underwriter pursuant to Rule 430B(f)(2) and at
the Closing Time, (b) the 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, 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,
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,
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, 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, the 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
[incorporated]/[formed] 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]/[statutory trust] 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, 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, 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 or by-laws]/[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 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
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
Sale and Servicing Agreement, the Purchase Agreement and the Trust
Agreement conforms in all material respects to the descriptions
thereof contained in the Preliminary Prospectus and 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 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 Underwriter 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, the 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 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 Preliminary Prospectus or to the Prospectus, unless
the Sponsor has furnished you a copy for your review prior to such
proposed filing or use, as the case may be, and will not file or
use any such document to which you shall reasonably
object.
C. Has furnished or will deliver to
the Underwriter and counsel for the Underwriter, 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 Underwriter,
without charge, a conformed copy of the Original Registration
Statement and of each amendment thereto (without exhibits) for the
Underwriter. The copies of the Original Registration Statement and
each amendment thereto furnished to the Underwriter 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. Will deliver to the Underwriter,
without charge, as many copies of the Preliminary Prospectus and
the Prospectus as the Underwriter 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
Underwriter, 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 Underwriter may
reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriter 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. Will 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 Underwriter 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 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 Underwriter,
without charge, such number of copies of such amendment or
supplement as the Underwriter may reasonably request. Any such
filing shall not operate as a waiver or limitation of any right of
the Underwriter hereunder.
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, co
