$125,000,000
AMERICREDIT CORP.
9 1/4% SENIOR NOTES DUE 2004
PURCHASE AGREEMENT
January 30, 1997
SMITH BARNEY INC.
MONTGOMERY SECURITIES
PIPER JAFFRAY INC.
WHEAT FIRST BUTCHER SINGER
C/O SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
AmeriCredit Corp., a Texas corporation (the "Company"), proposes,
upon the terms and conditions set forth herein, to issue and sell to you, as
the initial purchasers (the "Initial Purchasers"), $125,000,000 in aggregate
principal amount of its 9 1/4% Series A Senior Notes due 2004 (the "Series A
Notes"). The Company's obligations under the Series A Notes, including the
due and punctual payment of principal and interest on the Series A Notes,
will be unconditionally guaranteed (the "Series A Subsidiary Guarantees") by
each of AmeriCredit Financial Services, Inc., a Delaware corporation,
AmeriCredit Operating Co., Inc., a Delaware corporation, ACF Investment
Corp., a Delaware corporation, AmeriCredit Premium Finance, Inc., a Delaware
corporation, and Americredit Corporation of California (formerly known as
Rancho Vista Mortgage Corporation), a California corporation (collectively
the "Guarantors"). As used herein, the term "Series A Notes" shall include
the Series A Subsidiary Guarantees thereof by the Guarantors, unless the
context otherwise requires. The Guarantors and AmeriCredit Receivables
Finance Corp., a Delaware corporation, AmeriCredit Receivables Finance Corp.
1995-A, a Delaware corporation, and AFS Funding Corp., a Nevada corporation,
are collectively referred to herein as the "Subsidiaries." The Series A
Notes will (i) have the terms and provisions which are summarized in the
Offering Memorandum (as defined herein), (ii) be in the forms specified by
the Initial Purchasers pursuant to Section 3 hereof, and (iii) be issued
pursuant to the provisions of an Indenture, to be dated as of February 4,
1997 (the "Indenture"), between the Company, the Guarantors and Bank One,
Columbus, NA, as Trustee (the "Trustee").
The Company and the Guarantors wish to confirm as follows their
agreement with you the Initial Purchasers in connection with the purchase and
resale of the Series A Notes.
1. PRELIMINARY OFFERING MEMORANDUM AND OFFERING MEMORANDUM. The
Series A Notes will be offered and sold to the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "Act"), in
reliance on an exemption pursuant to Section 4(2) under the Act. The Company
and the Guarantors have prepared a preliminary offering memorandum, dated
January 20, 1997 (the "Preliminary Offering Memorandum"), and an offering
memorandum, dated January 30, 1997 (the "Offering Memorandum"), setting forth
information regarding the Company, the Guarantors, the Series A Notes and the
Series B Notes (as defined herein). Any references herein to the Preliminary
Offering Memorandum and the Offering Memorandum shall be deemed to include all
amendments and supplements thereto. The Company and the Guarantors hereby
confirm that they have authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Series A Notes by the Initial Purchasers.
The Company and the Guarantors understand that the Initial Purchasers
propose to make offers (the "Exempt Resales") of the Series A Notes purchased by
the Initial Purchasers hereunder only on the terms set forth in the Offering
Memorandum, and Section 2 hereof, as soon as the Initial Purchasers deem
advisable after this Agreement has been executed and delivered, solely to (i)
persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers" as defined in Rule 144A under the Act ("QIBs") and (ii) a
limited number of other institutional "accredited investors," as defined in Rule
501(a) (1), (2), (3) and (7) under the Act, that make the representations and
agreements to the Company specified in Annex A to the Offering Memorandum (each,
an "Accredited Institution") (such persons specified in clauses (i) and (ii)
being referred to herein as the "Eligible Purchasers").
It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Act, the Series A Notes (and all securities issued in
exchange therefor, in substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S.
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULES 904
UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE
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JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
It is also understood and acknowledged that holders (including
subsequent transferees) of the Series A Notes will have the registration rights
set forth in the registration rights agreement (the "Registration Rights
Agreement"), to be dated the Closing Date, in substantially the form of Exhibit
A hereto, for so long as such Series A Notes constitute "Transfer Restricted
Securities" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission under the circumstances set forth therein,
(i) a registration statement under the Act relating to the Company's 9 1/4%
Series B Notes due 2004 (the "Series B Notes") and the guarantees thereof (the
"Series B Subsidiary Guarantees") by the Guarantors to be offered in exchange
for the Series A Notes (the "Registered Exchange Offer") and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Act
relating to the resale by certain holders of the Series A Notes, and to use its
best efforts to cause such registration statements to be declared effective. As
used herein, the term "Series B Notes" shall include the Series B Subsidiary
Guarantees thereof by the Guarantors, unless the context otherwise requires and
the Series A Notes and the Series B Notes, are hereinafter referred to
collectively as the "Notes." This Agreement, the Indenture, the Notes, the
Series A Subsidiary Guarantees, the Series B Subsidiary Guarantees and the
Registration Rights Agreement are hereinafter referred to collectively as the
"Operative Documents."
2. AGREEMENTS TO SELL, PURCHASE AND RESELL. (a) The Company and the
Guarantors hereby agree, on the basis of the representations, warranties and
agreements of the Initial Purchasers contained herein and subject to all the
terms and conditions set forth herein, to issue and sell to the Initial
Purchasers and, upon the basis of the representations, warranties and agreements
of the Company and the Guarantors herein contained and subject to all the terms
and conditions set forth herein, each Initial Purchaser agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 96.995% of the
principal amount thereof, the principal amount of Series A Notes set forth
opposite the name of such Initial Purchaser in Schedule I hereto. The Company
and the Guarantors shall not be obligated to deliver any of the securities to be
delivered hereunder except upon payment for all of the securities to be
purchased as provided herein.
(b) Each of the Initial Purchasers hereby represents and warrants to
the Company and the Guarantors that it will offer the Series A Notes for sale
upon the terms and conditions set forth in this Agreement and in the Offering
Memorandum. Each of the Initial Purchasers hereby represents and warrants to,
and agrees with, the Company and the Guarantors that such Initial Purchaser (i)
is either a QIB or an Accredited Institution, in either case with such knowledge
and experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Series A Notes; (ii) is
purchasing the Series A Notes pursuant to a private sale exempt from
registration under the Act; (iii) in connection with the Exempt Resales, will
solicit offers to buy the Notes only from, and will offer to sell the Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iv) will not offer or sell the
Notes, nor has it offered or sold the Notes by, or otherwise engaged in, any
form of general solicitation or general advertising (within the meaning of
Regulation D; including, but not limited to, advertisements, articles, notices
or other communications published in any newspaper, magazine, or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of the Series A Notes. The Initial Purchasers have
advised the Company that they will offer the Series A Notes to Eligible
Purchasers at a price initially equal to 99.745% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance of the Series
A Notes. Such price
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may be changed by the Initial Purchasers at any time thereafter without
notice.
Each of the Initial Purchasers understands that the Company and the
Guarantors and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 7(d) and 7(g) hereof, counsel to the Company and
counsel to the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations, warranties and agreements and the Initial Purchasers
hereby consents to such reliance.
3. DELIVERY OF THE SERIES A NOTES AND PAYMENT THEREFOR. Delivery to
the Initial Purchasers of and payment for the Series A Notes shall be made at
the office of Jenkens & Gilchrist, P.C., 1445 Ross Avenue, Dallas, TX, at 9:00
A.M., New York City time, on February 4, 1997 (the "Closing Date"). The place
of closing for the Series A Notes and the Closing Date may be varied by
agreement between the Initial Purchasers and the Company.
The Series A Notes will be delivered to the Initial Purchasers
against payment of the purchase price therefor in immediately available
funds. The Series A Notes will be evidenced by a single global security in
definitive form (the "Global Note") and/or by additional definitive
securities, and will be registered, in the case of the Global Note, in the
name of Cede & Co. as nominee of The Depository Trust Company ("DTC"), and in
the other cases, in such names and in such denominations as the Initial
Purchasers shall request prior to 9:30 A. M., New York City time, on the
second business day preceding the Closing Date. The Series A Notes to be
delivered to the Initial Purchasers shall be made available to the Initial
Purchasers in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
4. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. The Company and
the Guarantors jointly and severally agree with each Initial Purchaser as
follows:
(a) The Company and the Guarantors will furnish to the Initial
Purchasers, without charge, as of the date of the Offering Memorandum, such
number of copies of the Offering Memorandum as may then be amended or
supplemented as they may reasonably request.
(b) The Company and the Guarantors will not make any amendment or
supplement to the Preliminary Offering Memorandum or to the Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which they shall reasonably object after being so advised.
(c) Prior to the execution and delivery of this Agreement, the
Company and the Guarantors shall have delivered or will deliver to the Initial
Purchasers, without charge, in such quantities as the Initial Purchasers shall
have requested or may hereafter reasonably request, copies of the Preliminary
Offering Memorandum. The Company and each of the Guarantors consent to the use,
in accordance with the securities or Blue Sky laws of the jurisdictions in which
the Series A Notes are offered by the Initial Purchasers and by dealers, prior
to the date of the Offering Memorandum, of each Preliminary Offering Memorandum
so furnished by the Company and the Guarantors. The Company and each of the
Guarantors consent to the use of the Offering Memorandum in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Series A Notes are
offered by the Initial Purchasers and by all dealers to whom Series A Notes may
be sold, in connection with the offering and sale of the Series A Notes.
(d) If, at any time prior to completion of the distribution of the
Series A Notes by the Initial Purchasers to Eligible Purchasers, any event shall
occur that in the judgment of the Company, any of the Guarantors or in the
opinion of counsel for the Initial Purchasers should be set forth in the
Offering
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Memorandum 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 to supplement or amend the Offering Memorandum in order to comply
with any law, the Company and the Guarantors will forthwith prepare an
appropriate supplement or amendment thereto or such document, and will
expeditiously furnish to the Initial Purchasers and dealers a reasonable
number of copies thereof.
(e) The Company and each of the Guarantors will cooperate with the
Initial Purchasers and with their counsel in connection with the qualification
of the Series A Notes for offering and sale by the Initial Purchasers and by
dealers under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such
qualification; PROVIDED, that in no event shall the Company or any of the
Guarantors be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to service
of process in suits, other than those arising out of the offering or sale of the
Series A Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company and the
Guarantors will furnish to the Initial Purchasers (i) as soon as available, a
copy of each report of the Company mailed to stockholders generally or filed
with any stock exchange or regulatory body and (ii) from time to time such other
information concerning the Company and/or the Guarantors as the Initial
Purchasers may reasonably request.
(g) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof (otherwise than by
notice given by the Initial Purchasers terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Initial
Purchasers because of any failure or refusal on the part of the Company or any
of the Guarantors to comply with the terms or fulfill any of the conditions of
this Agreement, the Company and the Guarantors agree to reimburse the Initial
Purchasers for all out-of-pocket expenses (including reasonable fees and
expenses of its counsel) reasonably incurred by it in connection herewith, but
without any further obligation on the part of the Company or any of the
Guarantors for loss of profits or otherwise.
(h) The Company and the Guarantors will apply the net proceeds from
the sale of the Series A Notes to be sold by it hereunder substantially in
accordance with the description set forth in the Offering Memorandum under the
caption "Use of Proceeds."
(i) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, the Company and the Guarantors have
not taken, nor will any of them take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Notes to facilitate the sale
or resale of the Notes. Except as permitted by the Act, the Company and the
Guarantors will not distribute any offering material in connection with the
Exempt Resales.
(j) The Company and the Guarantors will use their best efforts to
permit the Notes to be designated Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the Notes are
outstanding and are "restricted securities" within the meaning of the Rule
144(a)(3) under the Act or, if earlier, until three
5
years after the Closing Date, and during any period in which the Company is
not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company and the Guarantors will furnish to
holders of the Notes and prospective purchasers of Notes designated by such
holders, upon request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Act to permit compliance with Rule 144A in connection with resale of the
Notes.
(l) The Company and the Guarantors have complied and will comply with
all provisions of Florida Statutes Section 517.075 relating to issuers doing
business with Cuba.
(m) The Company and the Guarantors agree not to sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Act) that would be integrated with the sale of the Series A Notes
in a manner that would require the registration under the Act of the sale to the
Initial Purchasers or the Eligible Purchasers of the Series A Notes.
(n) The Company and the Guarantors agree to comply with all the terms
and conditions of the Registration Rights Agreement and all agreements set forth
in the representation letters of the Company and the Guarantors to DTC relating
to the approval of the Notes by DTC for "book entry" transfer.
(o) The Company and the Guarantors agree to cause the Exchange Offer,
if available, to be made in the appropriate form, as contemplated by the
Registration Rights Agreement, to permit registration of the Series B Notes to
be offered in exchange for the Series A Notes, and to comply with all applicable
federal and state securities laws in connection with the Registered Exchange
Offer.
(p) The Company and the Guarantors agree that prior to any
registration of the Notes pursuant to the Registration Rights Agreement, or at
such earlier time as may be required, the Indenture shall be qualified under the
Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental
indentures will be entered into in connection therewith.
(q) The Company and the Guarantors will not voluntarily claim, and
will resist actively all attempts to claim, the benefit of any usury laws
against holders of the Notes.
(r) The Company and the Guarantors will do and perform all things
required or necessary to be done and performed under this Agreement by them
prior to the Closing Date, and to satisfy all conditions precedent to the
Initial Purchasers' obligations hereunder to purchase the Series A Notes.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EACH OF THE
GUARANTORS. The Company and each of the Guarantors, represent and warrant to
each of the Initial Purchasers that:
(a) The Preliminary Offering Memorandum and Offering Memorandum with
respect to the Series A Notes have been prepared by the Company and the
Guarantors for use by the Initial Purchasers in connection with the Exempt
Resales. No order or decree preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act has been issued and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company or any of the
Guarantors, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum
as of their
6
respective dates and the Offering Memorandum as of the Closing Date, did not
or will not at any time contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, except that this representation
and warranty does not apply to statements in or omissions from the
Preliminary Offering Memorandum and Offering Memorandum made in reliance upon
and in conformity with information relating to the Initial Purchasers
furnished to the Company in writing by or on behalf of the Initial Purchasers
expressly for use therein.
(c) The market-related and customer-related data and estimates
included under the captions "Offering Memorandum Summary-The Company" and
"Business-Market and Competition" in the Preliminary Offering Memorandum and the
Offering Memorandum are based on or derived from sources which the Company
believes to be reliable and accurate.
(d) The Indenture has been duly and validly authorized by the Company
and the Guarantors, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will constitute the valid
and binding agreement of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with its terms, subject to the
qualification that the enforceability of the Company's and the Guarantors'
obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles; no
qualification of the Indenture under the 1939 Act is required in connection with
the offer and sale of the Series A Notes contemplated hereby or in connection
with the Exempt Resales.
(e) The Series A Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Indenture and, assuming due authentication of the Series A Notes by the
Trustee, upon delivery to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, subject to the qualification that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general equitable principles.
(f) The Series B Notes have been duly and validly authorized by the
Company and if and when duly issued and authenticated in accordance with the
terms of the Indenture and delivered in accordance with the Exchange Offer
provided for in the Registration Rights Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject to the
qualification that the enforceability of the Company's obligations thereunder
may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(g) The Series A Subsidiary Guarantees have been duly and validly
authorized by the Guarantors and when duly executed and delivered by the
Guarantors in accordance with the terms of the Indenture and upon the due
execution, authentication and delivery of the Series A Notes in accordance with
the Indenture and the issuance of the Series A Notes in the sale to the Initial
Purchasers contemplated by this Agreement, will constitute valid and binding
obligations of the Guarantors, enforceable against the Guarantors in accordance
with their terms, subject to the qualification that the enforceability of the
Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general
7
equitable principles.
(h) The Series B Subsidiary Guarantees have been duly and validly
authorized by the Guarantors and if and when duly executed and delivered by the
Guarantors in accordance with the terms of the Indenture and upon the due
execution and authentication of the Series B Notes in accordance with the
Indenture and the issuance and delivery of the Series B Notes in the Exchange
Offer contemplated by the Registration Rights Agreement, will constitute valid
and binding obligations of the Guarantors, enforceable against the Guarantors in
accordance with their terms, subject to the qualification that the
enforceability of the Guarantors' obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
(i) The Company, AmeriCredit Financial Services, Inc., AmeriCredit
Operating Co., Inc., AmeriCredit Premium Finance, Inc. and ACF Investment Corp.
(collectively the "Borrowers"), have entered into an agreement (the "Credit
Agreement Amendment"), dated as of January 22, 1997, with Wells Fargo Bank
(Texas), National Association and certain other banks named therein. The Credit
Agreement Amendment became effective on January 22, 1997 and amended Section
9.05 of the credit agreement (the "Credit Agreement"), dated as of October 7,
1996, by and among the Borrowers and Wells Fargo Bank (Texas), National
Association and certain other banks named therein, to clarify that the Credit
Agreement does not prohibit, limit or otherwise restrict the payment of
dividends or other payments on or with respect to the capital stock of any of
the Subsidiaries to any other of the Subsidiaries or the Company.
(j) (A) The Credit Agreement constitutes the valid and binding
obligation of the Borrowers, enforceable against the Borrowers in accordance
with its terms, subject to the qualification that the enforceability of the
Borrowers' obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general equitable principles;
(B) the Borrowers will have at least $100 million of borrowings available to
them under the Credit Agreement (giving effect to the borrowing base
requirements of the Credit Agreement) after the Closing of the sale of the
Series A Notes hereunder, the receipt by the Company of the proceeds therefore
and the application of such proceeds as described under the caption "Use of
Proceeds" in the Offering Memorandum; and (C) all representation and warranties
made by the Borrowers in Article VII of the Credit Agreement are true and
correct in all material respects as of the date hereof.
(k) The Company and the Guarantors have obtained, in writing, all
consents and waivers required under the terms of the Credit Agreement and
existing Credit Enhancement Agreements (as defined in the Indenture) necessary
to ensure that the execution and delivery of, and the performance of all of the
transactions contemplated by, the Operative Documents will not conflict with or
constitute a breach of, or a default under, the Credit Agreement or any Credit
Enhancement Agreement.
(l) All the shares of capital stock of the Company outstanding prior
to the issuance of the Series A Notes have been duly authorized and validly
issued and are fully paid and nonassessable; the authorized capital stock of the
Company conforms to the description thereof under the caption "Capitalization"
in the Offering Memorandum.
(m) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of Texas with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
8
so to register or qualify or to be in good standing does not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").
(n) Neither the Company nor any of the Subsidiaries owns capital
stock of any corporation or entity (excluding interests in Company-sponsored
securitizations) other than the Subsidiaries and a 10% interest in PNL Asset
Management Company. Each of the Subsidiaries is a corporation duly incorporated
and validly existing and in good standing under the laws of its jurisdiction of
its incorporation, with all requisite corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or be in good
standing does not have a Material Adverse Effect. All the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are wholly owned by the Company
directly, or indirectly through one of the other Subsidiaries, free and clear of
any lien, adverse claim, security interest, equity or other encumbrance, except
as specifically described in the Offering Memorandum under the Caption
"Description Of Other Debt."
(o) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or any of the Guarantors, threatened, against the
Company or any of the Subsidiaries or to which the Company or any of the
Subsidiaries or to which any of their respective properties, is subject, that
are not disclosed in the Offering Memorandum and which, if adversely decided,
are reasonably likely to cause a Material Adverse Effect or to materially affect
the issuance of the Notes or the consummation of the other transactions
contemplated by the Operative Documents. The Offering Memorandum contains
accurate summaries of all material agreements, contracts, indentures, leases or
other instruments required to be described or summarized therein. Neither the
Company nor any of the Subsidiaries is involved in any strike, job action or
labor dispute with any group of employees, and, to the Company's knowledge, no
such action or dispute is threatened.
(p) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries except where any such
violation or violations in the aggregate would not have a Material Adverse
Effect or (ii) in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, except as may be
disclosed in the Offering Memorandum.
(q) None of the issuance, offer or sale of the Series A Notes, the
execution, delivery or performance by the Company and the Guarantors of this
Agreement or the other Operative Documents, compliance by the Company and the
Guarantors with the provisions hereof or thereof nor consummation by the Company
and the Guarantors of the transactions contemplated hereby or thereby (i)
requires any consent, approval, authorization or other order of, or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required in
connection with the registration under the Act of the Series B Notes in
accordance with the Registration Rights Agreement, qualification of the
Indenture under the 1939 Act and compliance with the securities or Blue Sky laws
of various jurisdictions), or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational
9
documents, of the Company or any of the Subsidiaries or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under any material agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any of the Subsidiaries or any of
their respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject.
(r) The accountants, Coopers & Lybrand L.L.P., who have certified the
financial statements included as part of the Offering Memorandum, are
independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings.
(s) The financial statements, together with related notes forming
part of the Offering Memorandum, present fairly in all material respects the
consolidated financial position, results of operations and changes in
stockholders' equity and cash flows of the Company and the Subsidiaries on the
basis stated in the Offering Memorandum at the respective dates or for the
respective periods to which they apply; such statements and related notes have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein, and meet the requirements of Regulation S-X under the Act for
registration statements on Form S-1; and the other financial and statistical
information and data set forth in the Offering Memorandum is accurately
presented and, to the extent such information and data is derived from the
financial books and records of the Company, is prepared on a basis consistent
with such financial statements and the books and records of the Company.
(t) The Company and the Guarantors have all requisite power and
authority to execute, deliver and perform their obligations under this Agreement
and the Registration Rights Agreement; the execution and delivery of, and the
performance by the Company and the Guarantors of their obligations under this
Agreement and the Registration Rights Agreement have been duly and validly
authorized by the Company and the Guarantors; this Agreement has been duly
executed and delivered by the Company and the Guarantors and constitutes the
valid and binding agreements of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with their terms, except as
the enforcement hereof and thereof may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution hereunder and thereunder may be limited by
Federal or state securities laws or principles of public policy; and the
Registration Rights Agreement, when duly executed and delivered by the Company
and the Guarantors, will constitute the valid and binding agreements of the
Company and the Guarantors, enforceable against the Company and the Guarantors
in accordance with their terms, except as the enforcement hereof and thereof may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to the applicability of
general principles of equity, and except as rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state securities laws or
principles of public policy.
(u) Except as disclosed in, or specifically contemplated by, the
Offering Memorandum, subsequent to the date as of which such information is
given in the Offering Memorandum, neither the Company nor any of the
Subsidiaries has incurred any liability or obligation (including, without
limitation, any liability or obligation in connection with the securitization of
Receivables or Credit Enhancement Agreements (as such terms are defined in the
Indenture)), direct or contingent, or entered into any transaction, in each case
not in the ordinary course of business, that is material to the Company and the
Subsidiaries
10
taken as a whole, and there has not been any material change in the capital
stock, or material increase in the short-term or long-term debt, of the
Company or any of the Subsidiaries or any material adverse change, or any
development involving or which would reasonably be expected to involve a
prospective material adverse change, in the condition (financial or other),
business, properties, net worth or results of operations of the Company, the
Subsidiaries taken as a whole.
(v) Each of the Company and the Subsidiaries has good and
indefeasible title to all property (real and personal) described in the Offering
Memorandum as being owned by it, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the Offering
Memorandum and all the material property described in the Offering Memorandum as
being held under lease by each of the Company and the Subsidiaries is held by it
under valid, subsisting and enforceable leases, with only such exceptions as in
the aggregate are not materially burdensome and do not interfere with the
conduct of the business of the Company and the Subsidiaries taken as a whole.
(w) Except as permitted by the Act, the Company and the Guarantors
have not distributed and, prior to the later to occur of the Closing Date and
completion of the distribution of the Series A Notes, will not distribute any
offering material in connection with the offering and sale of the Series A Notes
other than the Preliminary Offering Memorandum and Offering Memorandum.
(x) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("Permits") as are
necessary under applicable law to own their respective properties and to
conduct their respective businesses in the manner described in the Offering
Memorandum, except to the extent that the failure to have such Permits would
not have a Material Adverse Effect; the Company and each of the Subsidiaries
have fulfilled and performed in all material respects, all their respective
material obligations with respect to the Permits, and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such Permit, subject in each case to such qualification
as may be set forth in the Offering Memorandum and except to the extent that
any such revocation or termination would not have a Material Adverse Effect;
and, except as described in the Offering Memorandum, none of the Permits
contains any restriction that is materially burdensome to the Company or any
of the Subsidiaries.
(y) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(z) Neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any of the
Subsidiaries has made any payment of funds of the Company or any of the
Subsidiaries or received or retained any funds in violation of any law, rule
or regulation, which violation would have a Material Adverse Effect.
(aa) Except as disclosed in the Offering Memorandum, the Company and
each of the Subsidiaries have filed all tax returns required to be filed, which
returns are true and correct in all material respects, and neither the Company
nor any of the Subsidiaries is in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto, except
where the failure to
11
file such returns and make such payments would not have a Material Adverse
Effect.
(bb) No holder of any security of the Company or any of the
Subsidiaries has any right to request or demand registration of shares of
common stock or any other security of the Company because of the consummation
of the transactions contemplated by this Agreement or the Registration Rights
Agreement. Except as described in or contemplated by the Offering
Memorandum, there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of capital stock of any of the Subsidiaries
or any security convertible into or exchangeable or exercisable for capital
stock of any of the Subsidiaries.
(cc) The Company and each of the Subsidiaries own or possess all
patents, trademarks, trademark registration, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Offering Memorandum as being owned by any of them
or necessary for the conduct of their respective businesses, and the Company
is not aware of any claim to the contrary or any challenge by any other
person to the rights of the Company and the Subsidiaries with respect to the
foregoing.
(dd) The Company and the Guarantors are not and, upon sale of the
Series A Notes to be issued and sold thereby in accordance herewith and the
application of the net proceeds to the Company of such sale as described in the
Offering Memorandum under the caption "Use of Proceeds," will not be an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(ee) When the Series A Notes are issued and delivered pursuant to
this Agreement, such Series A Notes will not be of the same class (within the
meaning of Rule 144A(d)(3) under the Act) as any security of the Company that
is listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated interdealer
quotation system.
(ff) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D ("Regulation D") under the Act) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchasers or any person acting on its behalf), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Act) which is or will be integrated with the
offering and sale of the Notes in a manner that would require the
registration of the Series A Notes under the Act or (ii) engaged in any form
of general solicitation or general advertising (within the meaning of
Regulation D; including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising) in connection with the offering of the Series A Notes.
(gg) The Company and the Guarantors are not required to deliver the
information specified in Rule 144A(d)(4) in connection with the offering and
resale of the Series A Notes by the Initial Purchasers.
(hh) Assuming (i) that the representations and warranties in
Section 2 hereof are true, (ii) the Initial Purchasers comply with the
covenants set forth in Section 2 hereof and (iii) that each person to whom
the Initial Purchasers offer, sell or deliver the Series A Notes is a QIB or
an Accredited Institution, the purchase and sale of the Series A Notes
pursuant hereto (including the Initial Purchasers' proposed offering of the
Series A Notes on the terms and in the manner set forth in the Offering
Memorandum and Section 2 hereof) is exempt from the registration requirements
of the Act.
12
(ii) The execution and delivery of this Agreement and the other
Operative Documents and the sale of the Series A Notes to the Initial
Purchasers or by the Initial Purchasers to Eligible Purchasers will not
involve any prohibited transaction within the meaning of Section 406 of ERISA
or Section 4975 of the Code. The representation made by the Company and the
Guarantors in the preceding sentence is made in reliance upon and subject to
the accuracy of, and compliance with, the representations and covenants made
or deemed made by the Eligible Purchasers as set forth in the Offering
Memorandum under the section entitled "Notice to Investors."
(jj) The Company and the Subsidiaries have regular and ongoing
regulatory compliance programs and procedures that are adequate to ensure
that all requirements of applicable federal, state and local laws, and
regulations thereunder (including without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act and the Federal Trade Commission Act) with respect to
Receivables owned and/or serviced by the Company or its Subsidiaries have
been complied with in all material respects and to the Company's knowledge,
all such Receivables now comply with all such applicable legal requirements.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each
Guarantor jointly and severally agree to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or Offering Memorandum,
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to the Initial Purchasers furnished in writing to the
Company by or on behalf of the Initial Purchasers expressly for use in
connection therewith; PROVIDED, HOWEVER, that the indemnification contained
in this paragraph (a) with respect to the Preliminary Offering Memorandum
shall not inure to the benefit of any Initial Purchaser (or to the benefit of
any person controlling such Initial Purchaser) on account of any such loss,
claim, damage, liability or expense arising from the sale of the Series A
Notes by such Initial Purchaser to any person if the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in the Preliminary Offering Memorandum was corrected in the
Offering Memorandum and the Initial Purchaser sold Series A Notes to that
person without sending or giving at or prior to the written confirmation of
such sale, a copy of the Offering Memorandum (as then amended or
supplemented) if the Company has previously furnished sufficient copies
thereof to the Initial Purchaser on a timely basis to permit such sending or
giving. The foregoing indemnity agreement shall be in addition to any
liability which the Company and the Guarantors may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Initial Purchasers or any person controlling the Initial Purchasers in
respect of which indemnity may be sought against the Company and the
Guarantors, the Initial Purchasers or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the
defense thereof, including the employment of counsel and payment of all fees
and expenses. The Initial Purchasers or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Initial Purchasers or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying
13
parties have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both the Initial Purchasers or such controlling person and
the indemnifying parties and the Initial Purchasers or such controlling
person shall have been advised in writing by its counsel that representation
of such indemnified party and any indemnifying party by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed)
due to actual or potential differing interests between them (in which case
the indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the Initial Purchasers or such
controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Initial Purchasers and controlling persons not having actual or potential
differing interests with the Initial Purchasers or among themselves, which
firm shall be designated in writing by Smith Barney Inc., and that all such
fees and expenses shall be reimbursed as they are incurred. The indemnifying
parties shall not be liable for any settlement of any such action, suit or
proceeding effected without their written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify
and hold harmless the Initial Purchasers, to the extent provided in paragraph
(a), and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Guarantors, and their directors
and officers, and any person who controls the Company or any Guarantor within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act to the
same extent as the indemnity from the Company and the Guarantors to the Initial
Purchasers set forth in paragraph (a) hereof, but only with respect to
information relating to the Initial Purchasers furnished in writing by or on
behalf of the Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum. If any action, suit or proceeding shall be
brought against the Company or the Guarantors, any of their directors or
officers, or any such controlling person based on the Preliminary Offering
Memorandum or Offering Memorandum, and in respect of which indemnity may be
sought against the Initial Purchasers pursuant to this paragraph (c), the
Initial Purchasers shall have the rights and duties given to the Company and the
Guarantors by paragraph (b) above (except that if the Company and the Guarantors
shall have assumed the defense thereof the Initial Purchasers shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Initial Purchasers' expense), and the Company and the Guarantors, their
directors and officers, and any such controlling person shall have the rights
and duties given to the Initial Purchasers by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Initial Purchasers may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable (except if inapplicable according to its terms) to an indemnified
party under paragraphs (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Initial Purchasers on the other hand from the
offering of the Series A 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 and the Guarantors on the one hand and
the Initial Purchasers on the other in connection with the statements or
14
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand
and the Initial Purchasers 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
received by the Initial Purchasers, in each case as set forth in the table on
the cover page of the Offering Memorandum. The relative fault of the Company
and the Guarantors on the one hand and the Initial Purchasers on the other
hand 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 and the Guarantors on the one hand or by the Initial Purchasers
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 6, the Initial Purchasers
shall not be required to contribute any amount in excess of the amount by
which the total price of the Series A Notes underwritten by it and
distributed to the public exceeds the amount of any damages which the Initial
Purchasers have 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.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 6 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred
but only to the extent that such losses, claims, damages, liabilities or
expenses are required to be paid by an indemnified party. The indemnity and
contribution agreements contained in this Section 6 and the representations
and warranties of the Company and the Guarantors set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Initial Purchasers or any person
controlling the Initial Purchasers, the Company and the Guarantors, their
directors or officers or any person controlling the Company or the
Guarantors, (ii) acceptance of any Series A Notes and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to the
Initial Purchasers or any person controlling the Initial Purchasers, or to
the Company and the Guarantors, their directors or officers or any person
controlling the Company or the Guarantors, shall be entitled to the benefits
of the indemnity, contribution and reimbursement agreements contained in this
Section 6.
(g) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and 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 claims that are the
subject matter of such action, suit or proceeding.
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to purchase the Series A Notes hereunder
are subject to the following conditions:
15
(a) At the time of execution of this Agreement and on the Closing
Date, no order or decree preventing the use of the Offering Memorandum, or any
order asserting that the transactions contemplated by this Agreement are subject
to the registration requirements of the Act shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company or any of the Guarantors, be contemplated. No
stop order suspending the sale of the Series A Notes in any jurisdiction
designated by the Initial Purchasers shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending or, to the
knowledge of the Company or any of the Guarantors, shall be contemplated.
(b) Subsequent to the date as of which information is given in the
Offering Memorandum, except as otherwise stated in the Offering Memorandum,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchasers, would materially adversely affect the market for the
Series A Notes, or (ii) any event or development relating to or involving the
Company , any of its Subsidiaries or any officer or director of the Company or
any of its Subsidiaries which makes any statement made in the Offering
Memorandum untrue or which, in the opinion of the Company, the Guarantors and
their counsel or the Initial Purchasers and their counsel, requires the making
of any addition to or change in the Offering Memorandum in order to state a
material fact required by any law to be stated therein or necessary in order to
make the statements therein not misleading, if amending or supplementing the
Offering Memorandum to reflect such event or development would, in the opinion
of the Initial Purchasers, materially adversely affect the market for the Series
A Notes.
(c) The Final Offering Memorandum shall have been printed and copies
thereof distributed to the Initial Purchasers in such quantities as shall have
been previously specified by them not later than 9:00 a.m., New York City time,
on Febraury 3, 1997, or at such later date and time as the Initial Purchasers
may approve in writing.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion of Jenkens & Gilchrist, P.C., counsel for the Company, dated the Closing
Date and addressed to the Initial Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of Texas with full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum;
(ii) Each of the Subsidiaries is a corporation duly incorporated
and validly existing and in good standing under the laws of its jurisdiction of
incorporation, with all requisite power and authority to own, lease, and operate
its properties and to conduct its business as described in the Offering
Memorandum; and all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and to the knowledge of such counsel, are wholly owned by the
Company directly, or indirectly through one of the other Subsidiaries, free and
clear of any security interest, lien, adverse claim, equity or other
encumbrance, except as specifically described in the Offering Memorandum under
the caption "Description Of Other Debt;"
(iii) The authorized capital stock of the Company is as set
forth under the caption "Capitalization" in the Offering Memorandum;
16
(iv) The Company and each of the Guarantors have the corporate
power and authority to enter into this Agreement and the Registration Rights
Agreement and to issue, sell and deliver the Series A Notes to be sold to the
Initial Purchasers as provided herein, and this Agreement and the
Registration Rights Agreement have been duly and validly authorized, executed
and delivered by the Company and the Guarantors and constitute the valid and
binding agreements of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with their terms, except (A) as
enforcement of rights to indemnity and contribution hereunder and thereunder
may be limited by Federal or state securities laws or principles of public
policy and (B) subject to the qualification that the enforceability of the
Company's and the Guarantors' obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(v) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Guarantors and, assuming due
authorization, execution and delivery by the Trustee, constitutes the valid
and binding agreement of the Company and the Guarantors, enforceable against
the Company and the Guarantors in accordance with its terms, subject to the
qualification that the enforceability of the Company's and the Guarantors'
obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable principles; no
qualification of the Indenture under the 1939 Act is required in connection
with the offer and sale of the Series A Notes contemplated hereby or in
connection with the Exempt Resales;
(vi) The Series A Notes have been duly and validly authorized
by the Company and when duly executed by the Company in accordance with the
terms of the Indenture and, assuming due authentication of the Series A Notes
by the Trustee, upon delivery to the Initial Purchasers against payment
therefor in accordance with the terms hereof, will have been validly issued
and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, subject to the qualification that the
enforceability of the Company's obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium,
and other laws relating to or affecting creditors' rights generally and by
general equitable principles;
(vii) The Series B Notes have been duly and validly
authorized by the Company and if and when duly issued and authenticated in
accordance with the terms of the Indenture and delivered in accordance with
the Exchange Offer provided for in the Registration Rights Agreement, will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, subject to the qualification that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating
to or affecting creditors' rights generally and by general equitable
principles.
(viii) The Series A Subsidiary Guarantees have been duly
and validly authorized by the Guarantors and when duly executed and delivered
by the Guarantors in accordance with the terms of the Indenture and upon the
due execution, authentication and delivery of the Series A Notes in
accordance with the Indenture and the issuance of the Series A Notes in the
sale to the Initial Purchasers contemplated by this Agreement, will
constitute valid and binding obligations of the Guarantors, enforceable
against the Guarantors in accordance with their terms, subject to the
qualification that the enforceability of the Guarantors' obligations
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general
17
equitable principles;
(ix) The Series B Subsidiary Guarantees have been duly and
validly authorized by the Guarantors and if and when duly executed and
delivered by the Guarantors in accordance with the terms of the Indenture and
upon the due execution, authentication and delivery of the Series B Notes in
accordance with the Indenture and the issuance and delivery of the Series B
Notes in the Exchange Offer contemplated by the Registration Rights
Agreement, will constitute valid and binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms, subject to
the qualification that the enforceability of the Guarantors' obligations
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(x) None of the issuance, offer or sale of the Series A Notes
and Series A Subsidiary Guarantees, the execution, delivery or performance by
the Company and the Guarantors of this Agreement or the other Operative
Documents, compliance by the Company and the Guarantors with the provisions
hereof or thereof nor consummation by the Company and the Guarantors of the
transactions contemplated hereby or thereby conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under the
certificate or articles of incorporation or bylaws or other organizational
documents of the Company or any of the Subsidiaries or the Credit Agreement,
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Subsidiaries
pursuant to the terms of the Credit Agreement nor will any such action result
in any violation of any existing law, or any regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws and, in the
case of the Registration Rights Agreement, the Act, the Exchange Act and the
1939 Act), judgment, injunction, order or decree known to such counsel,
applicable to the Company or the Subsidiaries or any of their respective
properties;
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of the Company or the Guarantors for the valid issuance and sale of the
Series A Notes to the Initial Purchasers and the issuance of the Series A
Subsidiary Guarantees in connection therewith as contemplated by this
Agreement (other than as may be required by applicable state securities and
Blue Sky laws, as to which counsel need express no opinions);
(xii) To the knowledge of such counsel, (A) other than as
described or contemplated in the Offering Memorandum, there are no legal or
governmental proceedings pending or threatened against the Company, the
Guarantors or any of the other Subsidiaries or to which the Company or any of
the Subsidiaries or any of their properties, are subject, which are not
disclosed in the Offering Memorandum and which, if adversely decided, are
reasonably likely to cause a Material Adverse Effect or materially affect the
issuance of the Notes or the consummation of the other transactions
contemplated by the Operative Documents and (B) there are no material
agreements, contracts, indentures, leases or other instruments, that are not
described in the Offering Memorandum;
(xiii) The statements under the captions "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business," "Description of Other Debt," and "Certain Federal
Income Tax Consequences" in the Offering Memorandum, insofar as they are
descriptions of contracts, agreements or other legal documents, (excluding
contracts, agreements or other legal documents pertaining to
Company-sponsored securitizations) or refer to statements of law or legal
conclusions, are accurate in all material respects and present fairly the
information required to be shown;
18
(xiv) Such counsel does not know of any person who has the
right, contractual or otherwise, to cause the Company to sell or otherwise
issue to them, or to permit them to underwrite the sale of, any of the Notes
or the right, as a result of the consummation of the transactions
contemplated by the Operative Documents, to require registration under the
Act of any shares of Common Stock or other securities of the Company;
(xv) When the Series A Notes are issued and delivered pursuant
to this Agreement, such Series A Notes will not be of the same class (within
the meaning of Rule 144A(d)(3) under the Act) as any security of the Company
that is listed on a national securities exchange registered under Section 6
of the Exchange Act or that is quoted in a United States automated
interdealer quotation system;
(xvi) No registration of the Series A Notes under the Act
is required for the sale of the Series A Notes to the Initial Purchasers as
contemplated in this Agreement or for the Exempt Resales (assuming (A) that
any Eligible Purchaser who buys the Series A Notes in the Exempt Resales is a
QIB or Accredited Institution, (B) the accuracy of the Initial Purchasers'
representations and those of the Company and the Guarantors in this Agreement
and (C) the accuracy of the representations made by each Accredited
Institution who purchases Series A Notes pursuant to an Exempt Resale as set
forth in the letter of representation executed by such Accredited Institution
in the form of Annex A to the Offering Memorandum) (it being understood that
no opinion is being expressed as to any resale subsequent to the Exempt
Resales or any resale of securities by any person other than the Initial
Purchasers);
(xvii) The Company and the Guarantors are not required to
deliver the information specified in Rule 144A(d)(4) in connection with the
offering and resale of the Series A Notes by the Initial Purchasers;
(xviii) The Company is not required to obtain stockholder
consent for the issuance or offering of the Notes; and
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company and the Guarantors, representatives of the independent public
accountants for the Company and the Guarantors and the Initial Purchasers at
which the contents of the Offering Memorandum and related matters were
discussed and, although such counsel is not passing upon and does not assume
any responsibility for and has not verified the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum, and has not
made any independent check or verification thereof, on the basis of the
foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company and the Guarantors), no facts have come to the attention of such
counsel that lead such counsel to believe that the Offering Memorandum, as of
its date or as of the Closing Date, contained or contains any untrue
statement of material fact or omitted or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel
need express no belief or opinion with respect to the financial statements
and other financial and statistical data included therein).
The opinion of such counsel may be limited to the laws of the state
of Texas, the laws of the states of New York and California, the General
Corporation Law of the State of Delaware and the federal laws of the United
States. Such counsel may rely as to matters of New York and California law,
as it relates to the authorization and enforceability of the Operative
Documents only, on the opinion of Latham & Watkins described below in Section
7(g).
19
(e) The Initial Purchasers shall have received on the Closing Date
an opinion of Chris A. Choate, Esq., General Counsel of the Company, dated
the Closing Date and addressed to the Initial Purchasers to the effect that:
(i) The Company is duly registered and qualified to conduct
its business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing does not have a
Material Adverse Effect;
(ii) Each of the Guarantors is duly registered and qualified
to conduct its business and is in good standing as a foreign corporation in
each jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing does not have a
Material Adverse Effect;
(iii) Neither the Company nor any of the Subsidiaries is
in violation of its respective certificate or articles of incorporation or
bylaws, or other organizational documents, or to the best knowledge of such
counsel after reasonable inquiry, is in default in the performance of any
material obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, except as disclosed in the Offering Memorandum and
except to the extent that any such violation or default would not have a
Material Adverse Effect;
(iv) None of the issuance, offer or sale of the Series A Notes
and Series A Subsidiary Guarantees, the execution, delivery or performance by
the Company and the Guarantors of this Agreement or the other Operative
Documents, compliance by the Company and the Guarantors with the provisions
hereof or thereof nor consummation by the Company and the Guarantors of the
transactions contemplated hereby or thereby conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under the
certificate or articles of incorporation or bylaws or other organizational
documents of the Company or any of the Subsidiaries or any material
agreement, indenture, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties is bound, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
or the Subsidiaries pursuant to the terms of any material agreement or
instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of them is subject, nor will
any such action result in any violation of any existing law, or any
regulation, ruling (assuming compliance with all applicable state securities
and Blue Sky laws and, in the case of the Registration Rights Agreement, the
Act, the Exchange Act and the 1939 Act), judgment, injunction, order or
decree known to such counsel, applicable to the Company or the Subsidiaries
or any of their respective properties;
(v) The statements under the caption "Management" in the
Offering Memorandum, insofar as they are descriptions of contracts,
agreements or other legal documents or refer to statements of law or legal
conclusions, are accurate in all material respects and present fairly the
information required to be shown;
(vi) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Subsidiaries is in violation of any
law, ordinance, administrative or governmental rule or regulation applicable to
the Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any of the
Subsidiaries, except to the
20
extent that any such violation would not have a Material Adverse Effect; and
(vii) The Company and the Subsidiaries have all Permits that
are required under applicable law to own their respective properties and to
conduct their respective businesses as now being conducted as described in the
Offering Memorandum except where the failure to have any such Permits would not,
individually or in the aggregate, have a Material Adverse Effect.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion of Dewey Ballantine, special securitization counsel for the Company and
its Subsidiaries, dated the Closing Date, and addressed to the Initial
Purchasers to the effect that:
(i) The statements in the Offering Memorandum, insofar as they
are descriptions of contracts, agreements or other legal documents pertaining to
Company-sponsored securitizations, are accurate in all material respects and
present fairly the Company's and the Guarantors' rights, obligations and
liabilities in connection with such securitizations; and
(ii) None of the issuance, offer or sale of the Series A Notes,
the execution, delivery or performance by the Company and the Guarantors of this
Agreement or the other Operative Documents, compliance by the Company and the
Guarantors with the provisions hereof or thereof nor consummation by the Company
and the Guarantors of the transactions contemplated hereby or thereby conflicts
or will conflict with or constitutes or will constitute a breach of, or a
default under any material agreement, indenture, or other instrument pertaining
to a Company-sponsored securitization, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to the terms of any material
agreement or instrument pertaining to a Company-sponsored securitization.
The opinion of such counsel may exclude opinions with respect to the
$51 million Company-sponsored securitization effected in December 1994 through
AmeriCredit Receivables Finance Corp.
(g) The Initial Purchasers shall have received on the Closing date an
opinion, of Latham & Watkins, counsel for the Initial Purchasers, dated the
Closing date, and addressed to the Initial Purchasers, with respect to the
Offering Memorandum and such other related matters as the Initial Purchasers may
reasonably request, and such counsel shall have received such certificates,
documents and information as they may reasonably request to enable them to pass
upon such matters.
(h) The Initial Purchasers shall have received letters addressed to
the Initial Purchasers, and dated the date hereof and the Closing Date from
Coopers & Lybrand L.L.P., independent certified public accountants,
substantially in the forms heretofore approved by the Initial Purchasers.
(i)(i) There shall not have been any decrease in stockholders' equity
of the Company nor any material increase in the short-term or long-term debt of
the Company (other than in the ordinary course of business) from that set forth
or specifically contemplated in the Offering Memorandum; (ii) the Company and
the Subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries, taken as a whole, other than those
reflected in the Offering Memorandum; and (iii) all the representations and
warranties of the Company and the Guarantors contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date, and the
Initial Purchasers shall have received a certificate, dated the Closing Date and
signed by the Chief Executive Officer and the Chief Financial Officer of the
Company (or such other officers as are acceptable
21
to the Initial Purchasers), to the effect set forth in this Section 7(i) and
in Section 7(j) hereof.
(j) The Company and the Guarantors shall not have failed at or
prior to the Closing Date to have performed or complied in all material
respects with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing Date.
(k) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any
class of securities of the Company or any asset-backed securities of any
Company-sponsored Securitization Trust (as such term is defined in the
Indenture), or (ii) it is reviewing its ratings assigned to any class of
securities of the Company or any asset-backed security of any
Company-sponsored Securitization Trust with a view to possible downgrading,
or with negative implications, or direction not determined.
(l) The Series A Notes shall have been approved for trading in the
PORTAL Market.
(m) The Company and the Guarantors shall have obtained, in
writing, all consents and waivers required under the terms of the Credit
Agreement and existing Credit Enhancement Agreements necessary to ensure that
the transactions contemplated by this Agreement and the other Operative
Documents will not conflict with or constitute a breach of, or a default
under the Credit Agreement, or any Credit Enhancement Agreement. The Company
and the Guarantors shall have furnished photocopies of such waivers and
consents to the Initial Purchasers.
(n) The Company and the Guarantors shall have entered into the
Credit Agreement Amendment and shall have furnished photocopies of such
Credit Agreement Amendment to the Initial Purchasers.
(o) The Company and Guarantors shall have furnished or caused to
be furnished to the Initial Purchasers such further certificates and
documents as the Initial Purchasers or their counsel shall have requested.
All such opinions, certificates, letters, consents, waivers
amendments and other documents will be in compliance with the provisions
hereof only if they are reasonably satisfactory in form and substance to the
Initial Purchasers and counsel for the Initial Purchasers. Any certificate
or document signed by any officer of the Company or a Guarantor and delivered
to the Initial Purchasers, or to counsel for the Initial Purchasers, shall be
deemed a representation and warranty by the Company or Guarantor, as the case
may be, to the Initial Purchasers as to the statements made therein.
8. EXPENSES. The Company and the Guarantors jointly and
severally agree to pay the following costs, expenses and fees and all other
costs and expenses incident to the performance by any of them of any of their
obligations hereunder: (i) the preparation and reproduction of the
Preliminary Offering Memorandum and the Final Offering Memorandum (including,
without limitation, financial statements thereto), and each amendment or
supplement to any of them, this Agreement and the Indenture; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the Final
Offering Memorandum, the Preliminary Offering Memorandum, and all amendments
or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Series A Notes; (iii) the
preparation, printing, authentication, issuance and delivery of certificates
for the Notes, including any stamp taxes in connection with the original
issuance and sale of the Notes; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and
22
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Notes;
(v) the application for quotation of the Notes on the PORTAL Market; (vi) the
qualification of the Notes for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 4(f) hereof (including
the reasonable fees, expenses and disbursements of counsel for the Initial
Purchasers relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
qualification); (vii) the performance by the Company of its obligations under
the Registration Rights Agreement; (viii) fees and expenses of the Trustee
and its counsel; (ix) the transportation and other expenses incurred by or on
behalf of the Company representatives in connection with presentations to
prospective purchasers of the Series A Notes; and (x) the fees and expenses
of the Company's and the Guarantors' accountants and the fees and expenses of
counsel (including local and special counsel, if any) for the Company and the
Guarantors. The Company and each of the Guarantors hereby agree that they
will pay in full on the Closing Date the fees and expenses referred to in
clause (vi) of this Section 8 by delivering to counsel for the Initial
Purchasers on such date a check payable to such counsel in the requisite
amount.
9. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
10. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchasers, without
liability on the part of any of the Initial Purchasers to the Company or any of
the Guarantors, by notice to the Company, if prior to the Closing Date, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Texas shall have been declared, or (iii) there shall have
occurred any outbreak or escalation of hostilities involving the United States
or other domestic, foreign or international calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Initial Purchasers, impracticable or inadvisable to commence or continue the
offering of the Series A Notes on the terms set forth on the cover page of the
Offering Memorandum or to enforce contracts for the resale of the Series A Notes
by the Initial Purchasers. Notice of such termination may be given to the
Company by telegram, telecopy or telephone and shall be subsequently confirmed
by letter.
11. INFORMATION FURNISHED BY THE INITIAL PURCHASERS. The statements
set forth in the stabilization legend on the inside front cover and the last
paragraph on the cover page of the Preliminary Offering Memorandum and Offering
Memorandum, constitute the only information furnished by or on behalf of the
Initial Purchasers as such information is referred to in Sections 5(b) and 6
hereof.
12. MISCELLANEOUS. Except as otherwise provided in Sections 4, 9 and
10 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Guarantors, at the
office of the Company at 200 Bailey Avenue, Fort Worth TX 76107, Attention:
Chief Financial Officer with a copy to Jenkens & Gilchrist, P.C., 1445 Ross
Avenue, Suite 3200, Dallas, TX 75202, Attention: L. Steven Leshin, or (ii) if to
the Initial Purchasers, care of Smith Barney Inc., 388 Greenwich Street, New
York, NY 10013, Attention: Manager, Investment Banking Division with a copy to
Latham & Watkins, 885 Third Avenue, New York, New York 10022, Attention: Kirk A.
Davenport.
This Agreement has been and is made solely for the benefit of the
Initial Purchasers, the Company, the Guarantors and their respective directors,
officers and the controlling persons referred to in Section 6 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor"
23
nor the term "successors and assigns" as used in this Agreement shall include
a purchaser from the Initial Purchasers of any of the Series A Notes in his
status as such purchaser.
13. APPLICABLE LAW; COUNTERPARTS This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York and without
regard to the conflicts of law principles thereof.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
[signature page follows]
24
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
AMERICREDIT CORP. AMERICREDIT PREMIUM FINANCE, INC.
By By
------------------------------- -------------------------------
Daniel E. Berce Daniel E. Berce
Vice Chairman, Chief Financial President, Chief Financial
Officer and Treasurer Officer and Treasurer
AMERICREDIT FINANCIAL SERVICES, INC. AMERICREDIT CORPORATION OF
CALIFORNIA (FORMERLY KNOWN AS
RANCHO VISTA MORTGAGE CORPORATION)
By By
------------------------------- -------------------------------
Daniel E. Berce Daniel E. Berce
Vice Chairman, Chief Financial Vice Chairman, Chief Financial
Officer and Treasurer Officer and Treasurer
AMERICREDIT OPERATING CO., INC. ACF INVESTMENT CORP.
By By
------------------------------- -------------------------------
Daniel E. Berce Daniel E. Berce
Executive Vice President, Vice President, Chief Financial
Chief Financial Officer and Officer and Treasurer
Treasurer
Confirmed as of the date first
above mentioned.
SMITH BARNEY INC.
MONTGOMERY SECURITIES
PIPER JAFFRAY INC.
WHEAT FIRST BUTCHER SINGER
BY: SMITH BARNEY INC.
By
---------------------------
Managing Director
SCHEDULE I
AMERICREDIT CORP.
Principal Amount
Initial Purchaser of Notes
- ----------------- ----------------
Smith Barney Inc.. . . . . . . . . . . . . . . . . . . . . . . . $ 72,500,000
Montgomery Securities. . . . . . . . . . . . . . . . . . . . . . $ 22,500,000
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . . . $ 17,500,000
Wheat First Butcher Singer . . . . . . . . . . . . . . . . . . . $ 12,500,000
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Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 125,000,000
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