Exhibit 1.1
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.
GS AUTO LOAN TRUST 2003-1
PUBLICLY OFFERED ASSET BACKED NOTES
_________
Underwriting Agreement
April 17, 2003
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Asset Backed Securities Corp., a Delaware corporation
(the "Company") proposes to cause GS Auto Loan Trust 2003-1, a Delaware
statutory trust (the "Trust" or the "Issuer"), to issue and sell to you (the
"Underwriter"), subject to the terms and conditions stated herein, an aggregate
of $522,369,000 principal amount of the Notes of the Issuer specified on
Schedule I hereto (the "Publicly Offered Notes"). The Trust will also issue
Class D Notes (together with the Publicly Offered Notes, the "Notes") and
Certificates (together with the Notes, the "Securities"). The Notes will be
issued pursuant to an Indenture, dated as of April 1, 2003, between the Trust
and JPMorgan Chase Bank, as indenture trustee (the "Indenture Trustee") and will
represent obligations of the Trust. The Certificates will be issued pursuant to
an Amended and Restated Trust Agreement, dated as of April 1, 2003 (the "Trust
Agreement") between Xxxxxxx Xxxxx Asset Backed Securities Corp. and Wilmington
Trust Company, as Owner Trustee. The assets of the Trust consist primarily of a
pool of retail motor vehicle loan and installment sale contracts, in each case
secured by new or used automobiles or light trucks.
Xxxxxxx Sachs Mortgage Company ("GSMC") purchased certain retail motor
vehicle loan and installment sale contracts (the "Receivables") from The
Huntington National Bank ("Huntington") pursuant to a Purchase and Servicing
Agreement, dated as of February 28, 2003 (the "Purchase Agreement") between
GSMC, as purchaser, and Huntington, as seller.
The Company will acquire the Receivables pursuant to an Assignment,
Assumption and Recognition Agreement, dated as of April 1, 2003 between GSMC and
the Company and accepted and agreed to by Huntington (the "Assignment
Agreement"). Pursuant to the Assignment Agreement, GSMC will assign certain of
its rights with respect to certain representations and warranties under the
Purchase Agreements to the Company. Pursuant to a Sale and
Servicing Agreement, dated as of April 1, 2003, among the Company, GSMC, the
Trust, Huntington and the Indenture Trustee (the "Sale and Servicing
Agreement"), the Company will assign its rights in the Receivables and certain
other property to the Trust. The Receivables will be serviced by Huntington
pursuant to the terms of the Sale and Servicing Agreement.
Huntington, the Company and Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs")
(will enter into an indemnification agreement, dated as of April 17, 2003 (the
"Indemnification Agreement"), whereby Huntington will agree to indemnify the
Company and Xxxxxxx Xxxxx for all information provided to the Company and/or
Xxxxxxx Sachs by Huntington for use in connection with the issuance of the
Securities.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-101904)
, including a form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Publicly Offered Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), have been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended by Amendment No. 1 thereto filed on March 13, 2003, has
become effective. Such registration statement, as amended at the Effective Time
(as defined herein), including the exhibits thereto and any material
incorporated by reference therein, are hereinafter referred to as the
"Registration Statement," and the prospectus (including the base prospectus and
any prospectus supplement) relating to the Publicly Offered Notes, as last
filed, or mailed for filing, with the Commission pursuant to Rule 424(b) ("Rule
424(b)") under the Act is hereinafter referred to as the "Prospectus." For
purposes of offering the Class D Notes and the Certificates, an offering
supplement (the "Offering Supplement") will be prepared with respect to the
Class D Notes and the Certificates which shall include and incorporate the
Prospectus as a part thereof. For purposes of this Agreement, "Effective Time"
means the date and time as of which such Registration Statement, or the most
recent post-effective amendment thereto, is declared effective by the
Commission, and "Effective Date" means the date of the Effective Time;
(b) On the Effective Date, the Registration Statement did
conform in all material respects to the requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), where applicable, and the
rules and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Company by the Underwriter expressly for use in the
Registration Statement;
(c) On the date of this Agreement, the Registration
Statement conforms, and at the time of the last filing of the Prospectus
pursuant to Rule 424(b), the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations"),
and, except as aforesaid, neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations thereunder;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the rules and
regulations thereunder;
(e) Since the date as of which information is given in the
Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has all requisite power and authority (corporate and other) to own
its properties and to conduct its business as described in the Prospectus;
(g) The Trust has been duly organized and is validly existing
as a Delaware statutory trust in good standing under the laws of the State of
Delaware and has all requisite power and authority (trust and other) to own its
properties and to conduct its business as described in the Prospectus;
(h) At the Time of Delivery (as defined in Section 4 hereof),
the Assignment, the Sale and Servicing Agreement and the Indenture will have
been duly authorized, executed and delivered (and the Indenture will have been
qualified under the Trust Indenture Act) and will constitute a valid and legally
binding obligation of the Company and the Trust, as applicable, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity;
(i) When the Publicly Offered Notes are issued, executed,
authenticated and when delivered pursuant to this Agreement and the Indenture,
the Publicly Offered Notes will have been duly authorized, executed,
authenticated, issued and delivered and will be entitled to the benefits of the
Indenture; and the Publicly Offered Notes and the Indenture will conform to the
descriptions thereof in the Prospectus;
(j) This Agreement has been duly authorized and validly
executed and delivered by the Company;
(k) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, the Sale and
Servicing Agreement and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Sale and Servicing Agreement or the
Indenture, except the registration under the Act of the Publicly Offered Notes,
such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Publicly Offered Notes by the Underwriter;
(l) The Company is not in violation of its Certificate of
Incorporation or By-laws or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(m) The statements set forth in the Prospectus under the
caption "The Notes", insofar as they purport to constitute a summary of the
terms of the Notes, under the caption "Material United States Federal Income Tax
Considerations", and under the caption "Underwriting", insofar as they purport
to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(n) The Company will, at the Time of Delivery, own the
Receivables, free and clear of any lien, mortgage, pledge, charge, security
interest or other encumbrance, and, at the Time of Delivery, the Company will
have full power and authority to sell and deliver the Receivables to the Trust
under the Sale and Servicing Agreement and at the Time of Delivery will have
duly authorized such assignment and delivery to the Trust by all necessary
action;
(o) The Trust's pledge of the Trust Estate to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee a first
priority perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other encumbrance;
(p) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or the Trust is a party or of which any property of the Company or
the Trust is the subject which, if determined adversely to the Company or the
Trust, would individually or in the aggregate have a material adverse effect
on the condition (financial or otherwise), earnings affairs, business,
properties or prospects of the Company or the Trust; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(q) Each of the Company and the Trust is not and, after giving
effect to the offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery ad performance of this Agreement, the
Sale and Servicing Agreement and the Indenture and the Securities will have been
paid at or prior to the Time of Delivery; and
(s) Ernst & Young LLP who has been engaged to apply
agreed-upon procedures to be performed in accordance with the standards
established by the American Institute of Certified Public Accountants, and
substantially in the form heretofore agreed and otherwise in form and in
substance satisfactory to its counsel is an independent public accountant as
required by the Act and the rules and regulations of the Commission thereunder.
2. Purchase and Payment. Subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at a purchase price determined in accordance with
Schedule I hereto, the principal amount of Publicly Offered Notes set forth in
Schedule I hereto.
3. Sale by the Underwriters. Upon the authorization by you of the
release of the Securities, the Underwriter proposes to offer the Publicly
Offered Notes for sale to the public upon the terms and conditions set forth in
the Prospectus.
4. Delivery and Closing. (a) Delivery of, and payment of the
purchase price for, the Publicly Offered Notes shall be made at the office of
Skadden, Arps, Slate Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York
10036 ("Skadden"), or at such other place as shall be agreed upon by you and
the Company, at 10:00 A.M. on April 24, 2003, or such other time as shall be
agreed upon by you and the Company (such time and date being referred to as
the "Time of Delivery"). The Company will deliver such Publicly Offered Notes
to the Underwriter, against payment by or on behalf of the Underwriter of the
purchase price therefor by wire transfer to the Company of Federal (same day)
funds, by causing DTC to credit such Publicly Offered Notes to the account of
the Underwriter at DTC. The Company will cause the Publicly Offered Notes to
be made available for examination by you in New York, New York at least
twenty-four hours prior to the Time of Delivery at an office designated by the
Underwriter (the "Designated Office"). The Publicly Offered Notes to be so
delivered will initially be represented by one or more definitive global Notes
in book-entry form registered in the name of Cede & Co., the nominee of DTC.
The interests of beneficial owners of the Securities will be represented by
book entries on the records of DTC and participating members thereof.
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Publicly Offered Notes and any additional documents
requested by the Underwriter pursuant to Section 7(q) hereof, will be delivered
at the offices of Skadden (the "Closing Location"), and the Publicly Offered
Notes will be delivered at the Designated Office, all at the Time of Delivery. A
meeting will be held at the Closing Location at 2:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. Covenants of the Company. The Company agrees with the Underwriter as
follows:
(a) The Company will, if required, file the Prospectus
pursuant to Rule 424(b) under the Act with the Commission pursuant to and in
accordance with Rule 424(b) not later than the time specified therein. The
Company will advise the Underwriter promptly of any such filing pursuant to Rule
424(b);
(b) The Company will not to make any amendment or any
supplement to the Registration Statement or the Prospectus, as amended or
supplemented prior to the Time of Delivery, without furnishing the Underwriter
with a copy of the proposed form thereof and providing the Underwriter with a
reasonable opportunity to review the same; and during such same period to advise
the Underwriter, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of any of the
Publicly Offered Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus, as amended or supplemented or for additional
information; and, in the event of the issuance of any such stop order or of any
order preventing or suspending the use of any prospectus relating to the
Publicly Offered Notes or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(c) The Company will promptly from time to time to take such
action as the Underwriter may reasonably request to qualify the Publicly
Offered Notes for offering and sale under the securities laws of such states
as the Underwriter may request and to continue such qualifications in effect
so long as necessary under such laws for the distribution of the Publicly
Offered Notes, provided that in connection therewith, neither the Trust nor
the Company shall be required to qualify to do business or to file a general
consent to service of process in any jurisdiction; and provided further, that
the expense of maintaining any such qualification more than one year from the
Time of Delivery with respect to such Publicly Offered Notes shall be at the
expense of the Underwriter;
(d) The Company will furnish the Underwriter with copies of
the Registration Statement and copies of the Prospectus, as amended or
supplemented, in such quantities as the Underwriter may from time to time
reasonably request, and, if the delivery of a prospectus is required by law at
any time prior to the expiration of six months after the time of issue of the
Prospectus in connection with the offering or sale of the Publicly Offered Notes
and if at such time, either (i) any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Underwriter and upon its request to prepare and
furnish without charge to the Underwriter and to any dealer in securities as
many copies as the Underwriter may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case the Underwriter is
required by law to deliver a prospectus in connection with sales of any of the
Publicly Offered Notes at any time six months or more after the time of issue of
the Prospectus, upon the Underwriter's request, but at the Underwriter's own
expense, to prepare and deliver to the Underwriter as many written and
electronic copies as the Underwriter may request of an amended or supplemented
Prospectus complying with the Act;
(e) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery for the Publicly
Offered Notes and such earlier time as the Underwriter may notify the Company
not to offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, except as provided hereunder any
securities of the Company that are substantially similar to the Publicly Offered
Notes;
(f) To make generally available to Holders of the Publicly
Offered Notes as soon as practicable, but in any event no later than eighteen
months after the Time of Delivery, an earnings statement (or statements) of the
Company complying with Rule 158 under the Act and covering a period of at least
twelve consecutive months beginning after the Time of Delivery;
(g) So long as any of the Publicly Offered Notes are
outstanding, to furnish you copies of all reports or other communications
(financial or other) furnished to Holders of Notes, and to deliver to you
during such same period, (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission;
(ii) copies of each amendment to any of the Indenture, the Sale and Servicing
Agreements and the Assignment; and (iii) such additional information
concerning the business and financial condition of the Company or the Trust as
you may from time to time reasonably request;
(h) During a period of five years from the effective date of
the Registration Statement, to furnish to you (i) copies of any documents
furnished to or filed with the Commission pursuant to the Exchange Act; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request;
(i) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required under the Act.
6. Payment of Expenses. The Company covenants and agrees with the
Underwriter that the Company will pay or cause to be paid the following: (i) the
Commission's filing fees with respect to the Publicly Offered Notes; (ii) the
fees, disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriter and dealers; (iii) the cost of printing or
producing this Agreement, the Indenture, the Blue Sky Survey, the
Indemnification Agreement, term sheets, closing documents (including any
compilations thereof) and any other document produced in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Publicly Offered Notes for offering and
sale under state securities laws as provided in Section 5(c) hereof, including
the fees and disbursements of counsel for the Underwriter in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses
of the Indenture Trustee and of any agent of the Indenture Trustee and the fees
and disbursements of counsel for the Indenture Trustee in connection with the
Indenture and the Securities; and (vi) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on resale of any of
the Publicly Offered Notes by it, and any advertising expenses connected with
any offers it may make.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriter hereunder shall be subject, in its discretion,
to the condition that all representations and warranties and other statements
of the Company herein are, at and as of the Time of Delivery, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus and any supplements thereto shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the Underwriter's
reasonable satisfaction;
(b) The Indenture, the Sale and Servicing Agreement, the
Assignment, the Indemnification Agreement and all of the other agreements
identified in such agreements, shall have been duly entered into by all of the
respective parties;
(c) Skadden, special counsel for the Company, shall have
furnished to you their written opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriter;
(d) Skadden, special counsel for the Underwriter, shall have
furnished to you their written opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriter;
(e) In-house counsel to Huntington, shall have furnished to
you their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriter;
(f) Xxxxxx Xxxxxx Xxxxxx & Xxxxxx shall have furnished to you
their reliance letters in connection with the written opinions, dated March 14,
2003, delivered in connection with the Purchase Agreement;
(g) Xxxxxx Xxxxxx Xxxxxx & Xxxxxx shall have furnished to you
their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Underwriter, with respect to general
corporate matters relating to the Servicer and the Indemnification Agreement;
(h) Xxxxxx Xxxxxx Xxxxxx & Xxxxxx shall have furnished to you
their written opinion, subject to customary qualifications, assumptions,
limitations and exceptions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Underwriter, with respect to UCC related matters
in the states of Ohio and Florida;
(i) Xxxxx Xxxxxxxx LLP shall have furnished to you their
written opinion, subject to customary qualifications, assumptions, limitations
and exceptions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Underwriter, with respect to UCC related matters in the
state of Indiana;
(j) Xxxxxxxx Xxxxxx shall have furnished to you their written
opinion, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Underwriter, with respect to UCC related matters in the
state of Michigan;
(k) Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee,
shall have furnished to you their written opinion or opinions, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Underwriter, with respect to general corporate matters relating to the Owner
Trustee;
(l) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the
Trust, shall have furnished to you their written opinion or opinions, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Underwriter, with respect to certain matters relating to the Trust and the
establishment thereof;
(m) Xxxxxx Xxxx & Xxxxxx LLP, counsel to the Indenture
Trustee, shall have furnished to you their written opinion or opinions, subject
to customary qualifications, assumptions, limitations and exceptions, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Underwriter, with respect to general corporate matters relating to the Indenture
Trustee.
(n) The independent accountants of the Company or other
accountants acceptable to the Underwriter shall have furnished to the
Underwriter a letter or letters, dated on the date hereof, and a letter or
letters, dated the Time of Delivery, respectively, containing statements and
information of the type customarily included in accountants' "comfort letters"
and "agreed upon procedures letters" with respect to certain financial
information contained in the Prospectus, in each case as to such matters as you
may reasonably request and in form and substance satisfactory to the
Underwriter;
(o) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the Time of Delivery any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended prior
to the Time of Delivery, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the Time of
Delivery there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the Time of Delivery, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriter so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of
the Publicly Offered Notes on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented;
(p) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(q) On or after the date hereof, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iii) or (iv) in the judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus or Offering Supplement;
(r) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsection (a) of this
Section and as to such other matters as you may reasonably request;
(s) The Underwriter shall have received evidence satisfactory
to it that the Publicly Offered Notes are rated in the rating category or
categories specified on Schedule I hereto by the rating agency or agencies
specified on Schedule I hereto;
(t) All opinions, certificates and other documents incident
to, and all proceedings in connection with the transactions contemplated by,
this Agreement, the Assignment, the Sale and Servicing Agreements, and the
Indenture shall be satisfactory in form and substance to the Underwriter and its
special counsel;
(u) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission; and (v) The Underwriter and its
special counsel shall have received copies of all documents and other
information as they may reasonably request, in form and substance
satisfactory, to the Underwriter and its special counsel, with respect to such
transactions and the taking of all proceedings in connection therewith.
8. Indemnification. (a) The Company will indemnify and hold harmless
the Underwriter against any losses, claims, damages or liabilities, joint or
several, to which the Underwriter may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
term sheet, the Registration Statement or the Prospectus or the same information
or any other information provided by the Company expressly for use in any other
prospectus relating to the Securities as of the date thereof, or any amendment
or supplement thereto as of the date thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any such
document in reliance upon and in conformity with written information furnished
to the Company by the Underwriter expressly for use in the Registration
Statement or Prospectus.
(b) The Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any term sheet, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any such document in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection and
only to the extent that it has been materially prejudiced by such failure. In
case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. In any such action, an indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such action
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them,
or (iii) the indemnifying party fails to retain counsel reasonably
satisfactory to the indemnified party as provided in the preceding sentence.
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party. Each indemnified party shall reasonably cooperate with the
indemnifying party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Publicly Offered Notes to
which such loss, claim, damage or liability (or actions in respect thereof
relates). If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriter on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Publicly Offered
Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriter, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriter or any controlling person of the Underwriter or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Publicly Offered Notes.
10. If for any reason the Publicly Offered Notes are not
delivered by or on behalf of the Indenture Trustee as provided herein, other
than by the Underwriter's failure to comply with its obligations hereunder,
the Company will reimburse the Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriter in making preparations for the purchase, sale and delivery of the
Publicly Offered Notes, but the Company shall be under no further liability to
the Underwriter with respect to such Notes except as provided in Section 6 and
Section 8 hereof.
11. The Underwriter may prepare and provide to prospective investors
"Computational Materials," "ABS Term Sheets" and "Collateral Term Sheets"
(collectively, the "8-K Information") in connection with its offering of the
Publicly Offered Notes, as described in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and certain
affiliates, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), and the requirements of
the No-Action Letter of February 17, 1995 issued by the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Xxxxxx/PSA
Letter, the "No-Action Letters"); subject to the following conditions: (i) the
Underwriter shall comply with the requirements of the No-Action Letters; (ii)
for purposes hereof, "Computational Materials" shall have the meaning given such
term in the No-Action Letters, but with respect to the Underwriter shall include
only those Computational Materials that have been prepared by the Underwriter
for prospective investors and for purposes hereof and "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but with respect to the Underwriter shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared by the Underwriter for
prospective investors; (iii) the Underwriter shall provide to the Company any
8-K Information which is provided to investors no later than the second Business
Day preceding the date such 8-K Information is required to be filed pursuant to
the applicable No-Action Letters and the Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed; and (iv) in the event that the Company or the Underwriter
discovers an error in the 8-K Information, the party that prepared such material
shall prepare corrected 8-K Information and deliver it to the Company for
filing.
The Company will cause to be filed with the Commission one or more
current reports on Form 8-K with respect to the 8-K Information.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriter shall be delivered or sent by mail, telex
or facsimile transmission to the Underwriter at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Registration Department; if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter and the Company and, to the extent provided in
Sections 8 and 9 hereof, the officers and directors of the Company and the
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Publicly Offered Notes
from the Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four (4) counterparts hereof, whereupon this letter and your
acceptance hereof shall represent a binding agreement between the Company and
the Underwriter.
Very truly yours,
XXXXXXX SACHS ASSET BACKED SECURITIES CORP.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Partner
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------------
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
Principal Amount of
Class of Notes Notes to be Purchased Purchase Price Rating1
-------------- --------------------- --------------- -------
Class A-1 Notes $118,614,000 $118,614,000.00 Aaa/AAA
Class A-2 Notes $138,336,000 $138,335,640.33 Aaa/AAA
Class A-3 Notes $124,956,000 $124,954,438.05 Aaa/AAA
Class A-4 Notes $114,082,000 $114,081,680.57 Aaa/AAA
Class B Notes $ 17,148,000 $17,147,936.55 A2/A
Class C Notes $ 9,233,000 $9,232,909.52 Baa2/BBB
Initial Public Underwriting Purchase Price to the
Class of Notes Offering Price Discount and Commission2 Depositor
-------------- -------------- ------------------------ ---------------------
Per Class A-1 Note..... 100.00000% 0.085% 99.91500%
Per Class A-2 Note..... 99.99974% 0.125% 99.87474%
Per Class A-3 Note..... 99.99875% 0.175% 99.82375%
Per Class A-4 Note..... 99.99972% 0.250% 99.74972%
Per Class B Note....... 99.99963% 0.350% 99.64963%
Per Class C Note....... 99.99902% 0.350% 99.64902%
Total.................. $522,366,605.02 $869,953.40 $521,496,651.62
--------
1 Xxxxx'x/S&P
2 Retained by the Underwriter
