Exhibit 1.3
$691,731,000
ANRC AUTO OWNER TRUST 2000-A
$167,692,000 6.72462% ASSET-BACKED NOTES, CLASS A-1
$227,084,000 7.00% ASSET-BACKED NOTES, CLASS A-2
$196,340,000 7.06% ASSET-BACKED NOTES, CLASS A-3
$100,615,000 7.15% ASSET-BACKED NOTES, CLASS A-4
AUTONATION RECEIVABLES CORPORATION
UNDERWRITING AGREEMENT
August 3, 2000
First Union Securities, Inc.
as Representative of the several Underwriters
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. AutoNation Receivables Corporation, a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause ANRC Auto Owner Trust 2000-A (the "Trust") to issue and
sell $167,692,000 aggregate principal amount of 6.72462% Asset-Backed Notes,
Class A-1 (the "Class A-1 Notes"), $227,084,000 aggregate principal amount of
7.00% Asset-Backed Notes, Class A-2 (the "Class A-2 Notes"), $196,340,000
aggregate principal amount of 7.06% Asset-Backed Notes, Class A-3 (the "Class
A-3 Notes") and $100,615,000 aggregate principal amount of 7.15% Asset-Backed
Notes, Class A-4 (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The Notes will be
issued pursuant to an Indenture, to be dated as of August 10, 2000 (the
"Indenture"), between the Trust and The Chase Manhattan Bank, a New York banking
corporation as indenture trustee (in such capacity, the "Indenture Trustee").
The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sales contracts (the "Contracts"), all of which
are secured by new and/or used automobiles and/or light-duty trucks, all monies
due on the Contracts or received thereunder after the Cut-Off Date, such
Contracts to be sold to the Trust by the Company and to be serviced for the
Trust by AutoNation Financial Services Corp. ("AutoNation Financial Services"
NY2:\973167\01\K%WF01!.DOC\18810.0005
or, in its capacity as servicer, the "Servicer"). Capitalized terms used but not
defined herein have the meanings ascribed thereto in the Sale and Servicing
Agreement, to be dated as of August 10, 2000 (the "Sale and Servicing
Agreement"), by and among the Trust, the Company, AutoNation Financial Services,
as Servicer and Custodian and the Indenture Trustee or, if not defined therein,
in the Indenture, the Amended and Restated Owner Trust Agreement, to be dated as
of August 10, 2000 (the "Owner Trust Agreement"), between the Company and the
Bank of New York (Delaware), as owner trustee (the "Owner Trustee") or the
Receivables Purchase Agreement, to be dated as of August 10, 2000 (the
"Receivables Purchase Agreement"), between AutoNation Financial Services, as
seller and the Company, as purchaser, as the case may be. As used herein, "Basic
Documents" shall have the meaning specified in the Sale and Servicing Agreement.
The Company hereby agrees with the several Underwriters named in Schedule A
hereto (collectively, the "Underwriters") as follows:
2. Representations and Warranties of the Company and AutoNation
Financial Services Corp. The Company and AutoNation Financial Services, each
with respect to itself only, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-81615) relating to
the Notes, including a form of prospectus, has been filed with the Securities
and Exchange Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933, as amended (the "Securities Act"),
and is not proposed to be amended or (ii) is proposed to be amended by amendment
or post-effective amendment. If the Company does not propose to amend the
registration statement, and if any post-effective amendment to the registration
statement has been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent post-effective amendment has been declared
effective by the Commission or has become effective upon filing pursuant to Rule
462(c) under the Securities Act ("Rule 462(c)"). For purposes of this Agreement,
"Effective Time" means (i) if the Company has advised First Union Securities,
Inc., as representative of the several Underwriters (in such capacity, the
"Representative"), that it does not propose to amend the registration statement,
the date and time as of which the registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (ii) if the Company has
advised the Representative that it proposes to file an amendment or
post-effective amendment to the registration statement, the date and time as of
which the registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" means the date of the Effective Time. The registration
statement, as amended at the Effective Time, including all information (if any),
deemed to be a part of the registration statement as of the Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Securities Act, is
hereinafter referred to as the "Registration Statement". Any preliminary
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prospectus and preliminary prospectus supplement included in the Registration
Statement which, as of the Effective Date, omits the information (if any) deemed
to be a part of the initial Registration Statement as of such time pursuant to
Rule 430A(b) is hereinafter referred to collectively as the "Preliminary
Prospectus". The form of prospectus and prospectus supplement relating to the
Notes, as first filed with the Commission pursuant to and in accordance with
Rule 424(b) under the Securities Act ("Rule 424(b)") or, if no such filing is
required, as included in the Registration Statement, is hereinafter referred to
collectively as the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act.
(b) (i) On the Effective Date, the Registration Statement conformed
in all respects to the applicable requirements of the Securities Act and the
rules and regulations of the Commission (collectively, the "Rules and
Regulations") and the Registration Statement did not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) on the date of this Agreement, the Registration Statement conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all respects to the requirements
of the Securities Act and the Rules and Regulations, and 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; provided, however, the
preceding sentence does not apply to statements in, or
omissions from, the Registration Statement or the Prospectus based upon (i)
written information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b), (ii) the
information furnished to the Company by the Insurer set forth under the heading
"Description of The Insurer" in, or incorporated by reference in, the Prospectus
and (iii) the information furnished to the Company by the Insurer set forth
under the heading "Description of The Insurance Policy" in the Prospectus.
(c) Each of the Company and AutoNation Financial Services has been
duly incorporated and is an existing corporation in good standing under the laws
of the State of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and each
of the Company and AutoNation Financial Services is duly qualified to do
business as a foreign corporation in good standing in the State of Florida and
in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification and in which the failure to
so qualify, taken in the aggregate, would have a material adverse effect on it.
(d) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or made
by the Company, AutoNation Financial Services or the Trust for the consummation
of the transactions contemplated by this Agreement and the Basic Documents in
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connection with the issuance of the Notes and the Residual Interest Certificate
and the sale by the Company of the Notes, except such as have been obtained or
will be obtained by the Closing Date and made under the Securities Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), such as may be
required under state securities laws and the filing of any financing statements
required to perfect the Company's, the Trust's and the Indenture Trustee's
interest in the Contracts, which financing statements will be submitted for
filing in the appropriate offices on or prior to the Closing Date (as such term
is defined in Section 3).
(e) Neither the Company nor AutoNation Financial Services is in
violation of its Certificate of Incorporation or By-laws or is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by which it
or its properties are bound which could have a material adverse effect on the
ability of either the Company or AutoNation Financial Services to perform its
obligations contemplated herein or in the other Basic Documents. The execution,
delivery and performance of this Agreement and the other Basic Documents by the
Company and AutoNation Financial Services, and the issuance of the Notes and the
Residual Interest Certificate and the sale by the Company of the Notes and the
compliance by the Company and AutoNation Financial Services with the terms and
provisions hereof and thereof will not, subject to obtaining any consents or
approvals as may be required under the securities or "blue sky" laws of various
jurisdictions, result in a conflict with, or breach or violation of, any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or AutoNation Financial Services
or any of their respective properties, or any agreement or instrument to which
the Company or AutoNation Financial Services is a party or by which the Company
or AutoNation Financial Services is bound or to which any of the properties of
the Company or AutoNation Financial Services is subject, or the Certificate of
Incorporation or By-laws of the Company and AutoNation Financial Services,
except for conflicts, violations, breaches and defaults which individually or in
the aggregate, would not be materially adverse to the Company or AutoNation
Financial Services or materially adverse to the Company's or AutoNation
Financial Services' ability to perform its obligations under this Agreement or
the Basic Documents, and the Company has full power and authority to authorize
the issuance of the Notes and the Residual Interest Certificate and to sell the
Notes as contemplated by this Agreement, the Indenture and the Owner Trust
Agreement, and each of the Company and AutoNation Financial Services has full
power and authority to enter into this Agreement and the other Basic Documents
and to consummate the transactions contemplated hereby and thereby.
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(f) On the Closing Date, the Company will have directed the Owner
Trustee, on behalf of the Trust, to authenticate and execute the Residual
Interest Certificate and, when delivered pursuant to the Owner Trust Agreement,
the Residual Interest Certificate will have been duly issued and delivered and
will constitute a valid and legally binding obligation of the Trust, entitled to
the benefits provided in the Owner Trust Agreement and enforceable in accordance
with its terms subject to enforcement of remedies to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and laws affecting
creditors' rights and remedies generally, and the general principals of equity,
including principals of commercial reasonableness and good faith and fair
dealing, regardless of whether the aforementioned is sought in a proceeding in
law or in equity.
(g) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or AutoNation
Financial Services or any of their respective properties that, if determined
adversely to the Company or AutoNation Financial Services, would be reasonably
likely to individually or in the aggregate have a material adverse effect on the
condition (financial or other), business or results of operations of the Company
or AutoNation Financial Services, respectively, or would materially and
adversely affect the ability of the Company or AutoNation Financial Services to
perform its obligations under this Agreement or the other Basic Documents to
which it is a party, or which are otherwise material in the context of the
issuance and sale of the Notes or the issuance of the Residual Interest
Certificate; and no such actions, suits or proceedings are to the Company's or
AutoNation Financial Services' knowledge, contemplated.
(h) As of the Closing Date, the representations and warranties of the
Company and AutoNation Financial Services contained herein and in the other
Basic Documents will be true and correct.
(i) This Agreement and each other Basic Document to which it is a
party has been duly authorized, executed and delivered by each of the Company
and AutoNation Financial Services.
(j) As of the Closing Date, the Company has directed the Owner
Trustee, on behalf of the Trust, to execute and issue the Notes and to sell the
Notes.
(k) The Company's assignment and delivery of the Contracts to the
Trust as of the Closing Date will vest in the Trust all of the Company's right,
title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(l) The Trust's assignment of the Contracts to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the benefit of
the Noteholders, a first priority perfected security interest therein, subject
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to no prior lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(m) The computer disk of the Contracts created as of June 30, 2000,
and made available to the Representative by the Servicer was complete and
accurate as of the date thereof and includes an identifying description of the
Contracts that are listed on Exhibit A to the Sale and Servicing Agreement.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the other Basic
Documents and the Notes and any other agreements contemplated herein or therein
shall have been paid or will be paid by the Company at or prior to the Closing
Date to the extent then due.
(o) The consummation of the transactions contemplated by this
Agreement and the other Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any of the property or assets of the Company or
AutoNation Financial Services pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Company or AutoNation Financial Services
is a debtor or guarantor, except for conflicts, violations, breaches and
defaults which individually or in the aggregate, would not be materially adverse
to the Company or AutoNation Financial Services or materially adverse to the
Company's or AutoNation Financial Services' ability to perform its obligations
under this Agreement or the Basic Documents.
(p) The Company is not and, after giving effect to the issuance of
the Residual Interest Certificate and the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus, will not be
required to be registered as an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, 99.875001% of the principal amount thereof; (ii) the Class A-2 Notes,
99.792096% of the principal amount thereof; (iii) the Class A-3 Notes,
99.762825% of the principal amount thereof; and (iv) the Class A-4 Notes,
99.737990% of the principal amount thereof, in the respective principal amounts
of each Class of the Notes set forth opposite the names of the Underwriters in
Schedule A hereto.
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The Company will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
Weil, Gotshal & Xxxxxx LLP, New York, New York, at 10:00 a.m., New York time, on
August 10, 2000, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
Weil, Gotshal & Xxxxxx LLP at least 24 hours prior to the Closing Date.
The Company will deliver the Residual Interest Certificate to the
above office of Weil, Gotshal & Xxxxxx LLP on the Closing Date. The Residual
Interest Certificate so to be delivered will be in definitive form, in
authorized denominations and registered in the name of the Company and will be
made available for checking at the above office of Weil, Gotshal & Xxxxxx LLP at
least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than August 10, 2000, unless
otherwise agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (1), (2), (3), (4) or (5) of Rule 424(b)
not later than the second business day following the execution and delivery of
this Agreement. The Company will advise the Representative promptly of any such
filing pursuant to Rule 424(b).
(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
related Prospectus, and will not effect such amendment or supplementation
without the Representative's reasonable consent; and the Company will also
advise the Representative promptly of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by the
7
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Securities Act, the Company will promptly notify the
Representative of such event and will promptly prepare and file with the
Commission (subject to the Representative's prior review pursuant to Section
5(b)), at its own expense, an amendment or supplement which will correct such
statement or omission, or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Underwriters delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will cause the Trust to make generally available
to the Noteholders an earnings statement of the Trust covering a period of at
least 12 months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Securities Act. For the purpose of the
preceding sentence, "Availability Date" means the 90th day after the end of the
Trust's fourth fiscal quarter following the fiscal quarter that includes such
Effective Date.
(e) The Company will furnish to the Representative copies of the
Registration Statement (including all exhibits), each Preliminary Prospectus,
and, so long as delivery of a prospectus relating to the Notes is required to be
delivered under the Securities Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the Representative
reasonably requests. The Prospectus shall be so furnished on or prior to 3:00
p.m., New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time. All other such documents
shall be so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative may reasonably
designate and will continue such qualifications in effect so long as required
for the distribution of the Notes; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation to do
business, to file a general consent to service of process in any such
jurisdiction or subject itself to taxation in any jurisdiction to which it is
not subject.
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(g) For a period from the date of this Agreement until the retirement
of the Notes (i) the Company will furnish to the Representative and, upon
request, to each of the other Underwriters, copies of each certificate and the
annual statements of compliance delivered to the Indenture Trustee pursuant to
Section 3.09 of the Indenture and Sections 3.08 and 3.09 of the Sale and
Servicing Agreement and the annual independent certified public accountant's
servicing reports furnished to the Indenture Trustee pursuant to Section 3.10 of
the Sale and Servicing Agreement, by first-class mail as soon as practicable
after such statements and reports are furnished to the Indenture Trustee, and
(ii) such other forms of periodic certificates or reports as may be delivered to
the Indenture Trustee, the Owner Trustee or the Noteholders under the Indenture,
the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to
the Representative by first-class mail as soon as practicable, (i) all documents
distributed, or caused to be distributed, by the Company to the Noteholders,
(ii) all documents filed or caused to be filed by the Company with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (iii) such other information in the possession of the Company
concerning the Trust as the Representative from time to time may reasonably
request.
(i) Subject to the provisions of Section 9 hereof, the Company will
pay all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters (if and to the extent incurred by
them) for any filing fees and other expenses (including fees and disbursements
of counsel) incurred by them in connection with qualification of the Notes for
sale in jurisdictions that the Representative may designate pursuant to Section
5(f) hereof and determination of their eligibility for investment under the laws
of such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Notes, for any travel expenses of the
officers and employees of the Underwriters and any other expenses of the
Underwriters in connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing the
Preliminary Prospectuses and the Prospectuses (including any amendments and
supplements thereto).
(j) To the extent, if any, that the rating provided with respect to
the Notes by Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's,
a division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's", together
with Xxxxx'x, the "Rating Agencies"), is conditioned upon the furnishing of
documents or the taking of any other action by the Company, the Company shall
furnish such documents and take any such other action.
(k) On or before the Closing Date, the Company and AutoNation
Financial Services shall annotate and indicate unambiguously in the computer
records of the Company and AutoNation Financial Services relating to the
Contracts to show the Trust's absolute ownership of the Contracts, and from and
9
after the Closing Date neither the Company nor AutoNation Financial Services
shall take any action inconsistent with the Trust's ownership of such Contracts,
other than as permitted by the Basic Documents.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and AutoNation Financial Services herein, to the
accuracy of the statements of officers of the Company and AutoNation Financial
Services made pursuant to the provisions hereof, to the performance by the
Company and AutoNation Financial Services of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
of delivery thereof (which shall be on or prior to the Closing Date), of Xxxxxx
Xxxxxxxx, LLP, in form and substance satisfactory to the Representative and
counsel for the Underwriters, confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable Rules
and Regulations and stating in effect that (i) they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from the general
accounting records of the Trust, AutoNation Financial Services and the Company)
set forth in the Registration Statement and the Prospectus (and any supplements
thereto), agrees with the accounting records of the Trust, AutoNation Financial
Services and the Company, excluding any questions of legal interpretation, and
(ii) they have performed certain specified procedures with respect to the
Contracts.
For purposes of this subsection (a), "Prospectus" shall mean the
prospectus included in the Registration Statement. All financial statements and
schedules included in material incorporated by reference into the Prospectus
shall be deemed included in the Registration Statement for purposes of this
subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a). Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representative after due
inquiry, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in or affecting particularly the business, properties or
financial condition of the Company, AutoNation Financial Services or the Insurer
which, in the judgment of a majority in interest of the Underwriters (including
the Representative), materially impairs the investment quality of each Class of
the Notes or makes it impractical or inadvisable to proceed with completion of
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the public offering or the sale of and payment for each Class of the Notes; (ii)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any banking moratorium declared by Federal, Delaware or New York
authorities; or (iv) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters (including the Representative),
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes.
(d) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, special counsel to the Company and AutoNation Financial
Services, dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its properties and conduct its business, in
each case as described in the Prospectus; the Company is duly qualified to do
business and is in good standing 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 and in good standing is not
reasonably likely to have a material adverse effect on the performance of its
obligations under the Basic Documents;
(ii) AutoNation Financial Services has been duly incorporated and is
validly existing and in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business, in each case as described in the Prospectus; AutoNation Financial
Services is duly qualified to do business and is in good standing 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 and in good standing is not reasonably likely to have a material
adverse effect on the performance of its obligations under the Basic Documents;
(iii) each of the direction by the Company to the Indenture Trustee
to authenticate the Notes and the direction by the Company to the Owner Trustee
to execute the Notes has been duly authorized by the Company and, when the Notes
have been duly executed and delivered by the Owner Trustee and, when
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters pursuant to this
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Agreement, will be duly and validly issued and outstanding and will be entitled
to the benefits of the Indenture;
(iv) this Agreement and each other Basic Document to which the
Company or AutoNation Financial Services is a party (A) has been duly authorized
by all necessary corporate action by the Company or AutoNation Financial
Services, as applicable, (B) has been duly and validly executed and delivered by
the Company or AutoNation Financial Services, as applicable, and (C) constitutes
the legal, valid and binding agreement of the Company or AutoNation Financial
Services, as applicable, enforceable against the Company or AutoNation Financial
Services, as applicable, in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights and remedies generally from time
to time in effect, arid subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing, regardless of whether such enforceability is considered in a proceeding
in equity or at law, and except that rights to indemnification or contribution
thereunder may be limited by federal or state securities laws or public policy
relating thereto;
(v) no Governmental Approval by any Governmental Authority is
required for the execution, delivery and performance by the Company of the Basic
Documents to which it is a party, for the execution, delivery and performance by
AutoNation Financial Services of the Basic Documents to which it is a party or
for the consummation of the transactions contemplated by the Basic Documents by
either the Company or AutoNation Financial Services, except in each case (i)
such Governmental Approvals as have been obtained and made under the Securities
Act, (ii) such Governmental Approvals as may be required by state securities or
"blue sky" laws of any jurisdiction in connection with the offer and sale of the
Notes, as to which such counsel expresses no opinion, and (iii) such
Governmental Approvals specified in such opinion as have already been obtained;
where (i) the term "Applicable Laws" means the laws, rules and regulations of
the State of New York or the United States; (ii) the term "Governmental
Authority" means any legislative, judicial, administrative or regulatory body of
the State of New York or the United States; and (iii) the term "Governmental
Approval" means any consent, approval, waiver, license, authorization or other
action by or filing with any Governmental Authority pursuant to Applicable Laws,
which are specified in such opinion;
(vi) the execution, delivery and performance of this Agreement and
the other Basic Documents to which it is a party by the Company and the
execution, delivery and performance of this Agreement and the Basic Documents to
which it is a party by AutoNation Financial Services will not conflict with or
violate, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of
12
AutoNation Financial Services or the Company pursuant to (i) the terms of the
Certificate of Incorporation or the By-Laws of either AutoNation Financial
Services or the Company or (ii) to the best of such counsel's knowledge and
information, any statute, rule, regulation or order of any Governmental
Authority or any material agreement or instrument known to such counsel to which
AutoNation Financial Services or the Company is a party or by which AutoNation
Financial Services or the Company or any of their respective properties is
bound, which, in either case would have a material adverse effect on either
AutoNation Financial Services or the Company;
(vii) no fact has come to the attention of such counsel which would
lead such counsel to believe that the Registration Statement or any amendment
thereto, as of its effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto, as of
its issue date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the Registration
Statement and the Prospectus complies in all material respects with the
requirements of the Securities Act and the rules and regulations promulgated
thereunder; and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or the
Prospectus which are not described as required or of any contracts or documents
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which are
not described and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial, numerical,
statistical and quantitative information contained in the Registration Statement
or the Prospectus;
(viii) to the best knowledge of such counsel, there is no litigation,
proceeding or governmental investigation to which the Company or AutoNation
Financial Services is a party or overtly threatened before any court,
administrative agency or other tribunal having jurisdiction over AutoNation
Financial Services or the Company, (i) that are required to be disclosed in the
Registration Statement or Prospectus, (ii) asserting the invalidity of this
Agreement, any other Basic Document or the Notes (iii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or the other Basic Documents or (iv) which would
reasonably be expected to materially and adversely affect the performance by the
13
Company or AutoNation Financial Services of its obligations under, or the
validity or enforceability of, this Agreement, any other Basic Document or the
Notes; and
(ix) assuming that the Contracts are in substantially one of the
forms attached to such opinion, the Contracts are "chattel paper" as defined in
the UCC as in effect in the State of New York.
(e) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, special counsel to the Company and AutoNation Financial
Services, dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the provisions of the Receivables Purchase Agreement are
effective to create a valid security interest under and as defined in Section
1-201(37) of the UCC as in effect in the State of New York in favor of the
Company in AutoNation Financial Services' rights in the Contracts and the
proceeds thereof (subject to Section 9-306 of the UCC as in effect in the State
of New York) as security for the obligations of AutoNation Financial Services
thereunder;
(ii) the provisions of the Sale and Servicing Agreement are effective
to create a valid security interest under and as defined in Section 1-201(37) of
the UCC as in effect in the State of New York in favor of the Trust in the
Company's rights in the Contracts and the proceeds thereof (subject to Section
9-306 of the UCC as in effect in the State of New York) as security for the
obligations of the Company thereunder;
(iii) the provisions of the Indenture are effective to create, in
favor of the Indenture Trustee, a valid security interest under and as defined
in Section 1-201(37) of the UCC as in effect in the State of New York in the
Trust's rights in the Contracts and the proceeds thereof (subject to Section
9-306 of the UCC) as security for the obligations of the Trust thereunder;
(iv) the Owner Trust Agreement is not required to be qualified under
the Trust Indenture Act;
(v) the Indenture has been duly qualified under the Trust Indenture
Act;
(vi) the Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included in the
Registration Statement, and, such counsel is not aware of any stop order
suspending the effectiveness of the Registration Statement or any part thereof
14
has been issued. To the best knowledge of such counsel, no proceedings for that
purpose have been instituted or overtly threatened by the Commission under the
Securities Act, and the Registration Statement and the Prospectus, and each
amendment thereof or supplement thereto, if any, as of their respective
effective or issue dates, complies as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(vii) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, the Indenture constitutes the legal,
valid and binding agreement of the Trust, enforceable against the Trust in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditor's rights and remedies generally from time to time in effect,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity or at
law), and except that rights to indemnification or contribution thereunder may
be limited by federal or state securities laws or public policy relating
thereto; and
(viii) neither the Trust nor the Company is, and, after giving effect
to the issuance and sale of the Notes and the Residual Interest Certificate and
the application of the proceeds thereof, as described in the Prospectus, neither
the Trust nor the Company will be, an "investment company" as defined in the
Investment Company Act or a company "controlled by" an "investment company"
within the meaning of the Investment Company Act.
(f) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, special tax counsel for the Company, dated the Closing
Date and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that for Federal income tax purposes (i) the
Notes will be characterized as indebtedness, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable as a
corporation and (iii) the statements set forth in the Prospectus under the
headings "Summary-ERISA Considerations", "ERISA Considerations", "Summary-Tax
Status" and "Material Federal Income Tax Consequences" to the extent such
statements constitute matters of law or legal conclusions with respect thereto,
are correct in all material respects.
(g) The Representative shall have received from Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as the
15
Representative may require, and the Company shall have furnished to such counsel
such documents as it may request for the purpose of enabling it to pass upon
such matters.
(h) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President, any Vice President or
a principal financial or accounting officer of each of the Company and
AutoNation Financial Services in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the representations
and warranties of the Company or AutoNation Financial Services, as applicable,
in this Agreement are true and correct in all material respects; the Company or
AutoNation Financial Services, as applicable, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date in all material respects; the representations
and warranties of the Company or AutoNation Financial Services, as applicable,
in the Basic Documents are true and correct as of the dates specified in such
agreements in all material respects; the Company or AutoNation Financial
Services, as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such Basic Documents
at or prior to the Closing Date; no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and, subsequent to
the date of the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or otherwise), business, properties or results of
operations of the Company or AutoNation Financial Services or their respective
businesses except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(i) The Representative shall have received an opinion of Xxxxxxx,
Xxxxxxxx & Xxxx, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) the Indenture Trustee has been legally incorporated and, based
upon a certificate of good standing issued by the state in which incorporated,
is validly existing as a banking corporation in good standing under the laws of
the State of New York, and has the requisite entity power and authority to
execute and deliver the Basic Documents to which the Indenture Trustee is a
party and to perform its obligations thereunder;
(ii) with respect to the Indenture Trustee, the performance of its
obligations under the Basic Documents to which the Indenture Trustee is a party
and the consummation of the transactions contemplated thereby do not require any
consent, approval, authorization or order of, filing with or notice to any
court, agency or other governmental body, except such as may be required under
16
the securities laws of any state or such as have been obtained, effected or
given;
(iii) with respect to the Indenture Trustee, the performance of its
obligations under the Basic Documents to which the Indenture Trustee is a party
and the consummation of the transactions contemplated thereby will not result
in: (a) any breach or violation of its certificate of incorporation or bylaws or
(b) any breach or violation of any statute or regulation or, to the knowledge of
such counsel, any order of any court, agency or other governmental body;
(iv) to the knowledge of such counsel, with respect to the Indenture
Trustee, there is no legal action, suit, proceeding or investigation before any
court, agency or other governmental body pending or threatened against it which,
either in one instance or in the aggregate, draws into question the validity of
any of the Basic Documents to which the Indenture Trustee is a party, seeks to
prevent the consummation of any of the transactions contemplated by any of the
Basic Documents to which the Indenture Trustee is a party or would impair
materially its ability to perform its obligations under any of the Basic
Documents to which the Indenture Trustee is a party;
(v) each of the Basic Documents to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the Indenture Trustee
and, assuming the necessary authorization, execution and delivery thereof by the
other parties thereto, is a valid and legally binding agreement under the laws
of the State of New York, enforceable thereunder against the Indenture Trustee
in accordance with its terms; and
(vi) the Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(j) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of Delaware;
(ii) the Owner Trustee has the power and authority to execute,
deliver and perform its obligations under, the Owner Trust Agreement and, on
behalf of the Trust, under the Basic Documents to which the Trust is a party,
the Owner Trustee has duly authorized, executed and delivered such Basic
Documents and such Basic Documents (other than the Owner Trust Agreement)
17
constitute the legal, valid and binding obligation of the Owner Trustee in
accordance with their terms, except that certain of such obligations may be
enforceable solely against the Trust Estate, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights and remedies generally from time to time in
effect, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing,
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except that rights to indemnification or contribution
thereunder may be limited by Federal and state securities laws or public policy
relating thereto;
(iii) the Owner Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee;
(iv) the execution and delivery by the Owner Trustee of the Owner
Trust Agreement and, on behalf of the Trust, of the other Basic Documents to
which it is a party and the performance by the Owner Trustee of its obligations
thereunder do not conflict with, result in a breach or violation of, or
constitute a default under the Certificate of Incorporation or By-laws of the
Owner Trustee; and
(v) the execution, delivery and performance by the Owner Trustee of
the Owner Trust Agreement and, on behalf of the Trust, of the other Basic
Documents to which it is a party do not require any consent, approval or
authorization of, or any registration or filing with, any Delaware or United
States Federal governmental authority having jurisdiction over the banking or
trust powers of the Owner Trustee, other than those consents, approvals or
authorizations as have been obtained and the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware, which have been duly
filed.
(k) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing and in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C.ss.3801 et seq. (the "Delaware Act");
(ii) the Trust has the power and authority under the Delaware Act and
the Owner Trust Agreement, and the Owner Trust Agreement authorizes the Owner
Trustee, to execute, deliver and perform its obligations under each Basic
Document to which it is a party and the Notes;
18
(iii) assuming that the security interest created by the Indenture in
the Contracts has been duly created and has attached, upon the filing of a
financing statement with the Secretary of State of the State of Delaware the
Indenture Trustee will have a perfected security interest in the Trust's rights
in such Contracts and the proceeds thereof that constitute either accounts,
chattel paper or general intangibles, and such security interest will be prior
to any other security interest granted by the Trust that is perfected solely by
the filing of financing statements under the UCC as in effect in the State of
Delaware (the "Delaware UCC"), excluding purchase money security interests under
ss.9-312(4) of the Delaware UCC and temporarily perfected security interests in
proceeds under ss.9-306(3) of the Delaware UCC;
(iv) assuming that the Contracts are in substantially one of the
forms attached to such opinion, the Contracts are "chattel paper" as defined in
the UCC as in effect in the State of Delaware;
(v) no re-filing or other action is necessary under the Delaware UCC
in order to maintain the perfection of such security interest except for the
filing of continuation statements at five year intervals;
(vi) under 12 Del. C.ss.3805(b), no creditor of any holder of a
certificate (including any creditor of the Company in its capacity as holder of
the Residual Interest Certificate) shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to, the property
of the Trust except in accordance with the terms of the Owner Trust Agreement;
(vii) assuming that such is the case for Federal tax purposes, for
Delaware state franchise and income tax purposes (A) the Notes will be
characterized as debt and (B) the Trust will not be classified as an association
(or publicly traded partnership) taxable as a corporation; and
(viii) the Owner Trust Agreement constitutes the legal, valid and
binding obligation of each of the Owner Trustee and the Company, enforceable
against each of them in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights generally from time to time in
effect, and subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law), except that such counsel need not express an opinion with
19
respect to indemnification or contribution provisions which may be deemed to be
in violation of the public policy underlying any law or regulation.
(l) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, (i) with respect to the characterization of the transfer of the
Contracts by AutoNation Financial Services to the Company and (ii) to the effect
that should AutoNation Financial Services become the debtor in a case under
Title 11 of the United States Code (the "Bankruptcy Code") and the Company would
not otherwise properly be a debtor in a case under the Bankruptcy Code, and if
the matter were properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full consideration
of all relevant factors, should not order, over the objection of the
Noteholders, the substantive consolidation of the assets and liabilities of the
Company with those of AutoNation Financial Services.
(m) The Representative shall have received evidence satisfactory to
it and its counsel that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of State
of the state of (i) Florida reflecting the transfer of the interest of
AutoNation Financial Services in the Contracts and the proceeds thereof to the
Company and the transfer of the interest of the Company in the Contracts and the
proceeds thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Contracts and the proceeds thereof to the
Indenture Trustee.
(n) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and the counsel for the
Underwriters to the effect that (i) the provisions of the Indenture are
effective to create a valid security interest in favor of the Indenture Trustee,
to secure payment of the Notes, in all "securities entitlements" (as defined in
Section 8-102(a)(17) of the UCC as in effect in the State of New York) with
respect to "financial assets" (as defined in Section 8-102(a)(9) of the UCC as
in effect in the State of New York) now or hereafter credited to the Spread
Account (such securities entitlements, the "Securities Entitlements") and (ii)
no security interest of any other creditor of the Trust will be prior to the
security interest of the Indenture Trustee in such Securities Entitlements.
(o) Each Class of Notes shall have been rated in the highest rating
category by both Xxxxx'x and Standard & Poor's.
(p) The Representative shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx, LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
20
subsection will be a date not more than five days prior to such Closing Date for
purposes of this subsection.
(q) On or prior to the Closing Date, the Residual Interest
Certificate shall have been issued to the Company.
(r) The Representative shall either (i) be an addressee, together
with the other Underwriters, of each opinion rendered by Xxxx, Xxxxxxx & Xxxxxx
LLP and each other counsel for the Company to the Insurer or either Standard &
Poor's or Xxxxx'x in connection with the rating of any Class of the Notes or
(ii) have received from Weil, Gotshal & Xxxxxx LLP and each other counsel for
the Company, a letter dated the Closing Date to the effect that the Underwriters
may rely upon each opinion rendered by such counsel to the Insurer or either
Standard & Poor's or Xxxxx'x in connection with the rating of any Class of the
Notes, as if each such opinion were addressed to the Underwriters.
(s) The Representative shall have received an opinion of Xxxxx Xxxxx,
P.A., special Florida counsel to the Company and AutoNation Financial Services,
dated the Closing Date, to the effect that:
(i) assuming that the Contracts are in substantially one of the forms
attached to such opinion, the Contracts are "chattel paper" as defined in the
UCC as in effect in the State of Florida;
(ii) the financing statement on Form UCC-1 naming AutoNation
Financial Services as debtor is in appropriate form for filing in the relevant
filing office under the UCC as in effect in the State of Florida. Upon the
filing of such financing Statement in the relevant filing office, the security
interest in favor of the Company in the Contracts and proceeds thereof will be
perfected, and no other security interest of any other creditor of AutoNation
Financial Services will be equal or prior to such security interest;
(iii) the financing statement on Form UCC-l naming the Company as
debtor is in appropriate form for filing in the relevant filing office under the
UCC as in effect in the State of Florida. Upon the filing of such financing
statement in the relevant filing office, the security interest in favor of the
Owner Trustee in the Contracts and proceeds thereof will be perfected, and no
other security interest of any other creditor of the Company will be equal or
prior to such security interest; and
(iv) assuming that such is the case for Federal tax purposes, for
Florida state franchise and Florida state income tax purposes (A) the Notes will
21
be characterized as debt and (B) the Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation.
(t) The Representative shall have received an opinion of Xxxxx Xxxx
LLP, counsel to the Insurer, dated the Closing Date, to the effect that:
(i) the Insurer is a stock insurance corporation, duly incorporated
and validly existing under the laws of the State of New York. The Insurer is
validly licensed and authorized to issue the Insurance Policy and perform its
obligations under the Insurance Policy in accordance with the terms thereof,
under the laws of the State of New York;
(ii) the execution and delivery by the Insurer of the Insurance
Policy are within the corporate power of the Insurer, and each has been
authorized by all necessary corporate action on the part of the Insurer; the
Insurance Policy has been duly executed and is the legal, valid and binding
obligation of the Insurer enforceable in accordance with its terms, except that
the enforcement of the Insurance Policy may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and other
similar laws affecting creditors' rights generally and by general principles of
equity (regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law);
(iii) the Insurer is authorized to deliver the Insurance Agreement
and the Indemnification Agreement and, assuming due execution by the other
parties thereto, the Insurance Agreement and the Indemnification Agreement have
been duly executed and are the valid and binding obligations of the Insurer
enforceable in accordance with their terms, except that the enforcement of the
Insurance Agreement and the Indemnification Agreement may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law) and, in the case of the
Indemnification Agreement, also subject to principles of public policy limiting
the right to enforce the indemnification provisions contained therein insofar as
such provisions relate to indemnification for liabilities arising under the
securities laws;
(iv) no consent, approval, authorization or order of any state or
Federal court or governmental agency or body is required on the part of the
Insurer, the lack of which would adversely affect the validity or enforceability
of either the Insurance Policy, the Insurance Agreement or the Indemnification
Agreement; to the extent failure to comply with applicable legal requirements
would adversely affect validity or enforceability of the Insurance Policy, the
Insurance Policy form has been filed with, and approved by, all governmental
authorities having jurisdiction over the Insurer in connection with such
Insurance Policy;
22
(v) to the extent the Insurance Policy constitutes a security within
the meaning of Section 2(1) of the Securities Act, it is a security that is
exempt from the registration requirements of the Securities Act; and
(vi) the information set forth under the headings "Description of the
Insurance Policy" in the Prospectus and "Form of Note Guaranty Insurance Policy"
in Exhibit A to the Prospectus insofar as such information constitutes a
description of the Insurance Policy, accurately summarizes such Insurance
Policy.
(u) Each of the Basic Documents (originals or copies thereof, as
appropriate) shall have been duly executed and delivered to the Representative
by the parties thereto.
The Company will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests.
The Representative may, in its sole discretion, waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company and AutoNation Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any Preliminary Prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided that neither the Company nor AutoNation Financial Services
will 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 in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company or AutoNation Financial Services by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below, the information furnished
to the Company by the Insurer set forth under the heading "The Insurer" in, or
23
incorporated by reference in, the Prospectus and the information furnished to
the Company by the Insurer set forth under the heading "The Insurance Policy" in
the Prospectus; provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any Preliminary
Prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes, to the extent that
the untrue statement or omission or alleged untrue statement or omission was
eliminated or remedied in the Prospectus, which Prospectus was required to be
delivered by such Underwriter under the Securities Act to such person and was
not so delivered if the Company or AutoNation Financial Services had previously
furnished copies thereof to such Underwriter; and provided, further, that any
payments by the Company pursuant to this Section 7(a) shall be payable solely
from amounts received pursuant to clause (xii) of Section 4.03(a) of the Sale
and Servicing Agreement.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and AutoNation Financial Services against any losses,
claims, damages or liabilities to which the Company or AutoNation Financial
Services may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any Preliminary Prospectus, or arise out
of or are based upon the omission or the 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 reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or AutoNation Financial Services in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: (i) the statements in the second to last paragraph of the cover
page of the Prospectus concerning the terms of the offering by the Underwriters;
(ii) the concession and reallowance figures appearing in the second paragraph
under the heading "Underwriting" in the Prospectus; (iii) the statements in the
first sentence of the fourth paragraph under the heading "Underwriting" in the
Prospectus; and (iv) the statements in the fifth paragraph (concerning
stabilizing and other activities) under the heading "Underwriting" in the
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
24
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may 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 and after acceptance by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party if indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of 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 action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
25
to the public were offered to the public exceeds the amount of any damages which
such 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company or AutoNation Financial Services
under this Section shall be in addition to any liability which the Company or
AutoNation Financial Services 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 Securities Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company or AutoNation Financial
Services, to each officer of the Company and AutoNation Financial Services who
has signed the Registration Statement and to each person, if any, who controls
the Company or AutoNation Financial Services within the meaning of the
Securities Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date and
the aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
26
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or AutoNation Financial Services or their respective
officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter
or the Company or AutoNation Financial Services or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Notes by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, AutoNation Financial Services and the Underwriters
pursuant to Section 7 shall remain in effect. If the purchase of the Notes by
the Underwriters is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AutoNation Financial Services, jointly and severally, will reimburse the
Underwriters for all out-of pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at First Union Securities, Inc., One
First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000,
Attention: Xxxxxxx Xxxxxxxx (facsimile: (000) 000-0000) or, if sent to the
Company, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at 000 Xxxxx Xxxx 0xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Attention: Xxxx Xxxxxxx (facsimile: (000) 000-0000), and if to
AutoNation Financial Services, will be mailed, delivered or sent by facsimile
transmission and confirmed to it at 000 Xxxxx Xxxx 0xx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxxx Xxxxxxx (facsimile: (000) 000-0000); provided
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Company or by a trust for which the Company was the
depositor which securities were rated by any nationally recognized statistical
rating organization, together with all amounts due and owing to the Insurer
under the Basic Documents or any other transaction documents relating to any
such securities, it will not institute against, or join or intentionally
cooperate with any other person in instituting against, the Company or the Trust
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy or
similar law.
27
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) Each of the Company and AutoNation Financial Services hereby
submits to the nonexclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
28
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AutoNation Financial Services one of the counterparts hereof, whereupon it
will become a binding agreement among the Company, AutoNation Financial Services
and the several Underwriters in accordance with its terms.
Very truly yours,
AUTONATION RECEIVABLES
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: President
AUTONATION FINANCIAL
SERVICES CORP.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
FIRST UNION SECURITIES, INC., acting on behalf of itself and as the
Representative of the several Underwriters
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE A
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
Underwriter Amount of Amount of Amount of Amount of
-----------
Class A-l Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
First Union Securities, Inc. $73,784,480 $ 99,916,960 $ 86,389,600 $44,270,600
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
Bank of America Securities LLC $38,569,160 $52,229,320 $45,158,200 $23,141,450
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
Chase Securities Inc. $38,569,160 $52,229,320 $45,158,200 $23,141,450
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
Credit Suisse First Boston $16,769,200 $22,708,400 $19,634,000 $10,061,500
Corporation
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
Total: $167,692,000 $227,084,000 $196,340,000 $100,615,000
------------------------------------ ---------------------- --------------------- ---------------------- ---------------------
