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EXHIBIT 1.3
CAPITAL AUTO RECEIVABLES ASSET TRUST -SN[1]
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[CLASS A-1, CLASS A-2 AND CLASS A-3 NOTES AND CERTIFICATES]
CAPITAL AUTO RECEIVABLES, INC.
(SELLER)
GENERAL MOTORS ACCEPTANCE CORPORATION
(SERVICER)
FORM OF UNDERWRITING AGREEMENT
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As Representative[s] of the several Underwriters
Dear Ladies and Gentlemen:
1. Introductory. Capital Auto Receivables, Inc., a Delaware corporation
(the "Seller"), proposes to sell $ aggregate principal amount of
[Class A-1 Asset Backed Notes], $ aggregate principal amount of
[Class A-2, Asset Backed Notes] $ aggregate principal amount of
[Class A-3, Asset Backed Notes] (collectively, the "Notes") [and $
aggregate certificate balance of Asset Backed Certificates (the "Certificates",
and together with the Notes, the "Securities") of Capital Auto Receivables Asset
Trust SN (the "Trust"). [The Trust is also issuing, concurrently with the
Notes, $ aggregate principal amount of Class A-1 Asset Backed Notes
(the "Class A-1 Notes") and $ aggregate principal amount of
Certificates (the "Certificates"). Neither the Class A-1 Notes nor the
Certificates are being publicly offered.] The assets of the Trust will include,
among other things, a pool of non-recourse secured notes owned by General Motors
Acceptance Corporation ("GMAC") and secured by new and used General Motors
("GM") automobiles and light trucks and the related leases (the "Secured Notes")
and certain monies received thereunder on and after , (the
"Cutoff Date"). The Secured Notes will be transferred to the Trust by the Seller
and serviced by GMAC, as secured note servicer (the "Servicer") pursuant to the
Secured Note Trust Sale and Servicing Agreement, dated as of ,
, between the Seller, the Servicer and the Trust (the "Secured Note Trust
Sale and Servicing Agreement")). The aggregate secured note value of the Secured
Notes as of the
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Cutoff Date will be $ . The Notes will be issued
pursuant to an Indenture, to be dated as of , (as amended from
time to time, the "Secured Note Indenture"), between the Trust and
, as trustee (the "Indenture Trustee"). The Certificates
will be issued pursuant to a Trust Agreement, dated as of ,
(as amended from time to time, the "Secured Note Trust Agreement"), between
the Seller and , as trustee, acting thereunder not in its
individual capacity but solely as trustee of the Trust (the "Owner Trustee").
The Securities will be sold by the Seller to the underwriters named in Schedule
I.
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, the several underwriters named in
Schedule I (the "Underwriters") that:
(a) The Seller has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-93431), including a prospectus and form of prospectus
supplement, on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Act"), of the
Securities (which are issuable in series and classes thereof),
which registration statement has become effective, and a copy
of which, as amended to the date hereof, has heretofore been
delivered to the Underwriters. Central Originating Lease Trust
("COLT") has filed with the Commission a registration
statement (No. 333-93431-01) on Form S-1 for the registration
under the Act of the Secured Notes, which registration
statement has become effective, and a copy of which, as
amended to the date hereof has been delivered to the
Underwriter. The Seller proposes to file with the Commission
pursuant to Rule [424(b)] under the rules and regulations of
the Commission under the Act (the "Rules and Regulations") a
final supplement dated , (the
"Prospectus Supplement"), to the prospectus dated
, (the "Basic Prospectus"), relating to
the Securities and the method of distribution thereof. These
combined registration statements, including exhibits thereto,
are called the "Registration Statement," and the Basic
Prospectus and the Prospectus Supplement, together with any
amendments thereof or supplements thereto authorized by the
Seller prior to the Closing Date (as defined below) for use in
connection with the offering of the Securities, are called the
"Prospectus."
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the
"Effective Date"), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with
the applicable requirements of the Act and the Rules and
Regulations; and the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a
material fact and did not omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of
the date of the Prospectus Supplement, did not, and as of the
Closing Date will not, contain an untrue statement of a
material fact and did not and will not omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; except that this
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representation and warranty does not apply to[: (i)]
statements in or omissions from the Registration Statement or
the Prospectus made in reliance on and in conformity with
written information furnished to the Seller by or on behalf of
the Underwriters expressly for use in connection with the
preparation of the Registration Statement or the Prospectus;
or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus relating to and
including the table entitled "Percent of Class A-1 Note
Balance Outstanding to Maturity" included in the section of
the Prospectus Supplement captioned "Weighted Average Life of
the Securities" (the "ABS Table").] As of the Closing Date,
the representations and warranties of the Seller in the
Secured Note Trust Sale and Servicing Agreement and the
Secured Note Trust Agreement will be true and correct in all
material respects.
(c) This Agreement has been duly authorized, executed and
delivered by the Seller.
3. Purchase, Sale and Delivery of the Securities. Each
Underwriter executing this Agreement on its own behalf and as Representative of
the several Underwriters (the "Representative[s]") hereby represents and
warrants to the Seller that it has been authorized by the other Underwriters to
execute this Agreement on their behalf. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions set forth herein, the Seller agrees to sell to the Underwriters, and
the Underwriters agree severally and not jointly, to purchase from the Seller,
the respective principal amount of each series or class of Securities set forth
opposite the names of the Underwriters on Schedule I. The Securities are to be
purchased at the purchase price set forth on Schedule II, plus accrued interest
to the extent set forth in such Schedule.
The Seller will deliver the Securities to the Representative[s] for the
account of the Underwriters against payment of the purchase price in immediately
available funds, at the offices of General Motors Acceptance Corporation 3031
West Grand Boulevard, New Center One, Detroit, Michigan 48202, on
, at 10:00 a.m. (New York City time), or at such other time not later
than seven business days thereafter as the Representative[s] and the Seller
determine, such time being referred to as the "Closing Date." The Securities so
to be delivered will be initially represented by Securities registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Securities will be represented by book
entries on the records of DTC and participating members thereof. Definitive
Securities will be available only under limited circumstances.
4. Offering by Underwriters [;Covenants of the Underwriters].
[(a.)] It is understood that the Underwriters propose to offer
the Securities for sale to the public (which may include
selected dealers) as set forth in the Prospectus. The
Underwriters agree that all such offers and sales by the
Underwriters will be made in compliance with all applicable
laws and regulations.
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b. As of the date hereof and as of the Closing Date, the Underwriters have
and will have complied with all of their obligations hereunder, including,
without limitation, Section 4(c) with respect to Computational Materials,
ABS Term Sheets, Structural Term Sheets or Collateral Term Sheets (each as
defined below, and, collectively, the "Term Sheet Materials"). All
Computational Materials provided by the Representatives to the Seller
pursuant to Section 4(c), are accurate in all material respects (taking
into account the assumptions explicitly set forth in the Computational
Materials). The Term Sheet Materials provided by the Representative[s] to
the Seller are attached as Schedule III and constitute a complete set of
all Term Sheet Materials delivered by the Underwriters to prospective
investors that are required to be filed with the Commission.
c. The Underwriters may prepare and provide to prospective investors Term
Sheet Materials in connection with the offering of the Notes, subject to
the following conditions to be satisfied by the Underwriters:
(i) In connection with the use of Computational
Materials, the Underwriters shall comply with all applicable
requirements of the No-Action Letter of May 20, 1994 issued by
the Commission to Kidder, Peabody Acceptance Corporation I,
Kidder, Peabody & Co. Incorporated and Kidder Structured Asset
Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of
the Public Securities Association dated May 24, 1994
(collectively, the "Kidder/PSA Letter"), as well as the PSA
Letter referred to below. In connection with the use of ABS
Term Sheets, Structural Term Sheets or Collateral Term Sheets,
the Underwriters shall comply with all applicable requirements
of the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA
Letter" and, together with the Kidder/PSA Letter, the
"No-Action Letters").
(ii) For purposes hereof, "Computational Materials"
as used herein shall have the meaning given such term in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of an Underwriter, "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
as used herein shall have the meanings given such terms in the
PSA Letter but shall include only those ABS Term Sheets,
Structural Term Sheets or Collateral Term Sheets that have
been prepared or delivered to prospective investors by or at
the direction of an Underwriter.
(iii)(A) All Term Sheet Materials provided to
prospective investors that are required to be filed pursuant
to the No-Action Letters shall bear a legend including
substantially the following statement:
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"NEITHER THE ISSUER OF THE NOTES NOR ANY OF ITS
AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION
HEREIN. THE INFORMATION HEREIN IS PRELIMINARY AND
WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS
SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(B) The Seller shall have the right to require
additional specific legends or notations to appear on any Term
Sheet Materials, the right to require changes regarding the
use of terminology and the right to determine the types of
information appearing therein. Notwithstanding the foregoing,
Section 4(c)(iii)(A) shall be deemed satisfied if all Term
Sheet Materials referred to therein bear a legend in a form
previously approved in writing by the Seller.
(iv) The Underwriters shall provide the Seller with
representative forms of all Term Sheet Materials prior to
their first use, to the extent such forms have not previously
been approved by the Seller for use by the Underwriters. The
Underwriters shall provide to the Seller, for filing on Form
8-K as provided in Section 5(k), copies (in such format as
required by the Seller) of all Term Sheet Materials that are
required to be filed with the Commission pursuant to the
No-Action Letters. The Underwriters may provide copies of the
foregoing in a consolidated or aggregated form including all
information required to be filed. All Term Sheet Materials
described in this Section 4(c)(iv) must be provided to the
Seller not later than 10:00 a.m., New York City time, one
business day before filing thereof is required pursuant to the
terms of this Agreement. The Underwriters agree that it will
not provide to any investor or prospective investor in the
Notes any Term Sheet Materials on or after the day on which
Term Sheet Materials are required to be provided to the Seller
pursuant to this Section 4(c)(iv) (other than copies of Term
Sheet Materials previously submitted to the Seller in
accordance with this Section 4(c)(iv) for filing pursuant to
Section 5(k)), unless such Term Sheet Materials are preceded
or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(v) All information included in the Computational
Materials shall be generated based on substantially the same
methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein;
provided, however, that the Computational Materials may
include information based on alternative methodologies or
assumptions if specified therein.
(vi) The Seller shall not be obligated to file any
Term Sheet Materials that have been determined to contain any
material error or omission; provided, however, that, at the
request of the Underwriters, the Seller shall file Term Sheet
Materials that contain a material error or omission if clearly
marked "superseded by materials dated
" and accompanied by corrected Term Sheet
Materials that are marked "material previously dated ,
as corrected". If, within the period during
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which the Prospectus relating to the Notes is required to be
delivered under the Act, any Term Sheet Materials delivered by
the Underwriters are determined, in the reasonable judgment of
the Seller or the Underwriters, to contain a material error or
omission, the Underwriters shall prepare a corrected version
of such Term Sheet Materials, shall circulate such corrected
Term Sheet Materials to all recipients of the prior versions
thereof that either indicated orally to the Underwriters they
would purchase all or any portion of the Notes or actually
purchased all or any portion thereof, and shall deliver copies
of such corrected Term Sheet Materials (marked, "as
corrected") to the Seller for filing with the Commission in a
subsequent Form 8-K submission (subject to the Seller's
obtaining an accountant's comfort letter in respect of such
corrected Term Sheet Materials, which shall be at the expense
of the Underwriters).
(vii) If the Underwriters do not provide any Term
Sheet Materials to the Seller pursuant to Section 4(c)(iv)
above, such Underwriters shall be deemed to have represented,
as of the Closing Date, that it did not provide any
prospective investors with any information in written or
electronic form in connection with the offering of Notes that
is required to be filed with the Commission in accordance with
the No-Action Letters.
(viii) In the event of any delay in the delivery by
the Underwriters to the Seller of all Term Sheet Materials
required to be delivered in accordance with Section 4(c)(iv)
above, or in the delivery of the accountant's comfort letter
in respect thereof pursuant to Section 5(k), the Seller shall
have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date
and to take other appropriate actions, in each case as
necessary in order to allow the Seller to comply with its
agreement set forth in Section 5(k) to file the Term Sheet
Materials by the time specified therein. The Underwriters
hereby represent that the only Term Sheet Materials provided
to any prospective investors is attached as Schedule III.
d. The Underwriters each severally represent that it has in
place, and covenants that it shall maintain, internal controls and
procedures that it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the
No-Action Letters with respect to the generation and use of Term
Sheet Materials in connection with the offering of the Notes. The
Underwriters each severally further represent and warrant that, if
and to the extent it provided any prospective investors with any Term
Sheet Materials prior to the date hereof in connection with the
offering of the Notes, all of the conditions set forth in Section
4(c) above have been satisfied with respect thereto.]
5. Covenants of the Seller. The Seller covenants and agrees with
the Underwriters:
(a) To furnish the Representative[s], without charge, a copy of
the Registration Statement, including exhibits, and during the
period mentioned in Section 5 (d)
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below, as many copies of the preliminary prospectus and the
Prospectus and any supplements and amendments thereto as the
Representative may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, to furnish the
Representative[s] a copy of each such proposed amendment or
supplement thereto.
(c) The Seller will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b)(5) under the Act
by means reasonably calculated to result in filing with the
Commission pursuant to said rule.
(d) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for
the Representative[s] the Prospectus is required by law to be
delivered, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Representative[s], either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(e) To take such action for the qualification or exemption of the
Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Representative[s] shall
reasonably request and to pay all reasonable expenses
(including reasonable fees and disbursements of counsel) in
connection with such qualification or exemption and in
connection with the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions
as the Representative[s] may designate. Thereafter, until all
of the Securities have been retired, the Seller will arrange
for the filing and making of, and will pay all fees applicable
to, such statements and reports and renewals of registration
necessary in order to continue to qualify or exempt the
Securities for secondary market transactions in the various
jurisdictions in which the Securities were originally
registered or exempted for sale.
(f) For a period from the date of this Agreement until the
retirement of the Securities, or until such time as one
Underwriter shall cease to maintain a secondary market in the
Securities, whichever first occurs, to deliver to the
Representative[s] the annual statement of compliance delivered
to the Indenture Trustee and the Owner Trustee pursuant to the
Secured Note Trust Sale and Servicing Agreement and the annual
independent auditor's servicing report furnished to the
Indenture Trustee and the Owner Trustee pursuant to the
Secured Note Trust Sale and Servicing Agreement, as soon as
such statements are furnished to the Indenture Trustee and the
Owner Trustee.
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(g) So long as any of the Securities are outstanding, to furnish
to the Representative[s] (i) as soon as available, a copy of
each report of the Seller filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") or mailed to Securityholders, and (ii) from time to
time, such other information concerning the Seller as the
Representative may reasonably request.
(h) If the transactions contemplated by this Agreement are
consummated or this Agreement is terminated pursuant to
Section 9, the Seller will pay or cause to be paid all
expenses incident to the performance of the Seller's
obligations under this Agreement, and will pay or cause to be
paid or will reimburse the Underwriters for any reasonable
expenses (including reasonable fees and disbursements of
counsel) incurred by them in connection with qualification or
exemption of the Securities for offer and sale and
determination of their eligibility for investment under the
laws of such jurisdictions as the Representative[s] has
reasonably requested pursuant to Section 5 (e) and the
printing of memoranda relating thereto, for any fees charged
by statistical rating agencies for the rating of the
Securities and for expenses incurred in printing and
distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the
Underwriters.
(i) To the extent, if any, that, on or prior to the Closing Date,
a rating that is necessary to satisfy the condition set forth
in Section 6(j) of this Agreement is conditional upon the
furnishing of documents or the taking of other actions by the
Seller, the Seller shall furnish such documents and take such
other actions.
(j) If, during the period after the Closing Date in which a
prospectus relating to the Securities is required to be
delivered under the Act, the Seller receives notice that a
stop order suspending the effectiveness of the Registration
Statement or preventing the offer and sale of the Securities
is in effect, the Seller will advise the Representative[s] of
the issuance of such stop order.
[k The Seller shall file the Term Sheet Materials, if any,
provided to it by the Underwriters under Section 4(c)(iv) with
the Commission pursuant to a Current Report on Form 8-K by
10:00 a.m., New York City time, on the day the Prospectus is
delivered to the Underwriters; provided, however, that prior
to such filing of the Term Sheet Materials by the Seller, the
Underwriters must comply with its obligations pursuant to
Section 4(c) and the Seller must receive a letter from
Deloitte & Touche LLP, certified public accountants,
satisfactory in form and substance to the Seller and its
counsel, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to
by the Seller, as a result of which they determined that all
information that is included in the Term Sheet Materials, if
any, provided by the Underwriters to the Seller for filing
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on Form 8-K, as provided in Section 4(c) and this Section 5(k), is
accurate except as to such matters that are not deemed by the Seller
to be material. The foregoing letter as it relates to the
Computational Materials shall be at the expense of the Underwriters.
The Seller shall file any corrected Computational Materials described
in Section 4(c)(vi) as soon as practicable following receipt thereof.]
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters hereunder are subject to the following conditions:
(a) The Representative shall have received a letter dated as of the date
hereof, of Deloitte & Touche LLP in a form and substance satisfactory
to the Representative.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission and there
shall have been no material adverse change (not in the ordinary course
of business) in the condition of the Seller and its subsidiaries,
taken as a whole, from that set forth in the Registration Statement
and the Prospectus; and the Representative shall have received, on the
Closing Date, a certificate, dated the Closing Date and signed by an
executive officer of the Seller, to the foregoing effect. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
(c) The Representative shall have received on the Closing Date an opinion
of the Assistant General Counsel of GMAC, dated the Closing Date,
substantially to the effect set forth in Exhibit A.
(d) The Representative shall have received on the Closing Date an opinion
of Mayer, Brown & Platt, special counsel of the Seller, dated the
Closing Date, substantially to the effect set forth in Exhibit B.
(e) The Representative shall have received on the Closing Date an opinion
of Brown & Wood LLP, counsel for the Underwriters, dated the Closing
Date, substantially to the effect set forth in Exhibit C.
(f) The Representative shall have received a certificate signed by an
executive officer or officers of the Seller, dated the Closing Date,
in which such officer or officers, to the best of his or their
knowledge after reasonable investigation, shall state that the
representations and warranties of the Seller in this Agreement, the
Secured Note Trust Agreement and the Secured Note Trust Sale and
Servicing Agreement are true and correct and that the Seller has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder or thereunder at or before the
Closing Date.
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(g) On or prior to the Closing Date, the Seller shall not offer, sell,
contract to sell or otherwise dispose of any additional similar asset
backed securities secured by secured notes without the
Representative['s] prior written consent.
(h) The Representative shall have received on the Closing Date an opinion
of Mayer, Brown & Platt, special counsel to the Seller, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative[s], (i) with respect to the characterization of the
transfer of the Secured Notes by GMAC to the Seller as a sale and (ii)
concluding that neither the issue and delivery of the Securities, nor
the consummation of the transactions contemplated by the Secured Note
Trust Sale and Servicing Agreement, the Secured Note Pooling and
Servicing Agreement, dated as of , , between the
Servicer and the Seller, the Secured Note Trust Agreement or the
Secured Note Administration Agreement, dated as of ,
, between the Servicer, the Owner Trustee and the Indenture
Trustee, nor the fulfillment of the terms thereof, conflicts with, or
results in any breach of any terms and provisions of, or constitutes
(with or without notice or lapse of time) a default under, or results
in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Seller or the Servicer pursuant to the terms
of, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Seller or the Servicer is subject.
(i) Each series or class of Securities shall have been given a rating by
Standard & Poor's Ratings Services ("S&P") and/or Moody's Investors
Service, Inc. ("Moody's") that is at least the rating required for
such series or class of Securities as set forth in the Prospectus
Supplement.
The Seller will furnish the Representative[s] with conformed copies of such
opinions, certificates, letters and documents as the Representative[s]
reasonably requests.
7. Indemnification. The Seller agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls an Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (if used
within the period set forth in Section 5 (d) and as amended or supplemented if
the Seller shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission [(i)] in
reliance upon and in conformity with information furnished in writing to the
Seller by the Representative or any Underwriter expressly for use therein, or
[(ii)] in reliance upon information relating to the ABS Table.
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Each Underwriter agrees to indemnify and hold harmless the Seller, its
directors, its officers who sign the Registration Statement and any person
controlling the Seller to the same extent as the foregoing indemnity from the
Seller to such Underwriter, but only with reference to information relating to
such Underwriter or such Underwriter's offer or sale of the Securities pursuant
to this Agreement furnished in writing by such Underwriter expressly for use in
the Registration Statement, any preliminary Prospectus or the Prospectus; except
insofar as any losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission in reliance upon
information relating to and including the ABS Table.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Representative[s] in the case of parties indemnified pursuant to
the second preceding paragraph and by the Seller in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
If the indemnification provided for in this Section 7 is unavailable to an
indemnified party under the second or third preceding paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the 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 or liabilities in
such proportion as is appropriate to reflect not only the relative benefits but
also the relative fault of the Seller on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Seller on the one hand and of the
Underwriters on the other 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 Seller or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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The Seller and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph 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 or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities were offered to the public exceeds the amount of
any damages which the Underwriters 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. The Underwriters' obligations in
this Section 7 to indemnify and contribute are several in proportion to their
respective underwriting obligations and not joint.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Seller in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by any Underwriter or on behalf of the
Underwriters or any person controlling the Underwriters or by or on behalf of
the Seller, its directors or officers or any person controlling the Seller, and
(iii) acceptance of and payment for any of the Securities.
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I that bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Notes that the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that if the aggregate amount of Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Trust or
the Seller. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven business days, as the Underwriters shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Seller and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
12
<PAGE> 13
9. Termination. If this Agreement shall be terminated by the
Representative[s] because of any failure or refusal on the part of the Seller to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Seller shall be unable to perform its obligations under
this Agreement, the Seller will reimburse the Underwriters for all reasonable
out-of pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by the Underwriters in connection with the offering
of the Securities.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriters or the Seller or any of their officers or directors or any
controlling persons, and will survive delivery of and payment for the
Securities.
11. Notices. All communications hereunder will be in writing, and, if sent
to the Representative[s] of the Underwriters will be mailed, delivered or sent
by facsimile transmission and confirmed to the Representative[s] at
, Attention: , facsimile
[and ; Attention: , facsimile
] or if sent to the Seller will be mailed, delivered or sent by
facsimile transmission and confirmed to it at 3031 West Grand Boulevard, Suite
695, Detroit, Michigan 48202; Attention: Vice President, facsimile (313)
974-0533.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument. If the foregoing is in accordance
with your understanding of our agreement, kindly sign and return to us the
enclosed duplicate hereof, whereupon it will become a binding agreement between
the Seller and you in accordance with its terms.
Very truly yours,
CAPITAL AUTO RECEIVABLES, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
13
<PAGE> 14
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written by the undersigned acting on their own behalf and as
Representative[s] of the several Underwriters.
By:
--------------------------------------
Name:
-------------------------------
Title:
-------------------------------
By:
--------------------------------------
Name:
-------------------------------
Title:
------------------------------
14
<PAGE> 15
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount to be Purchased
-------------------------------------------------------------
UNDERWRITERS Class A-1 Notes Class A-2 Notes Class A-3 Notes
------------ --------------- --------------- ---------------
<S> <C> <C> <C>
$ $ $
$ $ $
--------------- --------------- ---------------
Total
=============== =============== ===============
</TABLE>
15
<PAGE> 16
SCHEDULE II
Security Interest Rate Purchase Price
-------------------- ------------- --------------
% $
Class A-1 Notes ------------------- -------------------
% $
Class A-2 Notes ------------------- -------------------
% $
Class A-3 Notes ------------------- -------------------
16
<PAGE> 17
SCHEDULE III
THE TERM SHEET DISTRIBUTED TO PROSPECTIVE PURCHASERS FOLLOWS
17
