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EXHIBIT 1.1
Execution
September 22, 1999
First Union Capital Markets Corp.
One First Union Center, TW-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
First Sierra Financial, Inc. (the "Company") hereby confirms
its agreement to sell certain equipment contract backed notes to First Union
Capital Markets Corp. (the "Representative"), Xxxxxxx Xxxxx Securities, Inc.
("Xxxxxxx Xxxxx") and PNC Capital Markets, Inc. ("PNC Capital Markets", and
together with the Representative and Xxxxxxx Xxxxx, the "Underwriters") as
described herein. The notes will be secured by the assets of a trust consisting
primarily of a segregated pool (the "Receivable Pool") of certain finance
leases and commercial loans (the "Contracts"), the security interest of the
Company, as originator (in such capacity, the "Originator") or its affiliate,
which was acquired by the Originator or such affiliate at the time of its
origination or purchase of the related Contracts in the underlying equipment or
other property servicing such Contracts (collectively, the "Equipment,"
together with the Contracts, the "Receivables") and certain other property.
First Sierra Equipment Contract Trust 1999-2, a common law trust acting through
First Union Trust Company, National Association, not in its individual capacity
but solely as Owner Trustee (the "Issuer" or the "Trust"), established pursuant
to the Trust Agreement dated as of September 1, 1999 (the "Trust Agreement")
between the Company and First Union Trust Company, National Association, not in
its individual capacity but solely as owner trustee (the "Owner Trustee"),
pursuant to the Indenture to be dated as of September 1, 1999 (the
"Indenture"), among the Trust, the Company, as Originator and as servicer (in
such capacity, the "Servicer") and Bankers Trust Company, as indenture trustee
(the "Indenture Trustee"), will pledge the Receivables to the Indenture Trustee
and issue the Class A Notes and the Class B Notes as described herein.
All capitalized terms used but not otherwise defined herein
have the respective meanings set forth in the Indenture. The phrase "This
Agreement" shall refer to this letter by the Company to the Underwriters as
agreed to and accepted by the Underwriters as of the date hereof.
1. Securities. The securities will be issued in classes as follows:
(i) four classes of senior notes consisting of: (a) 5.85535% Receivable-Backed
Notes, Class A-1 (the "Class A-1 Notes"), 6.46% Receivable-Backed Notes, Class
A-2 (the "Class A-2 Notes"), 6.70% Receivable-Backed Notes, Class A-3 (the
"Class A-3 Notes") and 6.98% Receivable-Backed Notes, Class A-4 (the "Class A-4
Notes and collectively with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes"); (ii) 7.28% Receivable-Backed Notes,
Class B (the "Class B Notes" and, collectively with the Class A Notes, the
"Offered Notes"); (iii) three Classes of Notes subordinate to the Offered
Notes, the 8.01% Receivable-Backed Notes, Class C (the "Class D Notes"), the
10.27% Receivable-Backed Notes, Class D (the "Class D Notes") and the 7.03%
Receivable-Backed Notes, Class E (the "Class E Notes"); and (iv) a class of
certificates subordinate to the Offered Notes, the Class C Notes, the Class D
Notes and the
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Class E Notes (the "Trust Certificate"). The Class C Notes, the Class D Notes,
the Class E Notes and the Trust Certificate are not being sold hereby.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and covenants with, the Underwriters that:
A. The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-12199) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of Equipment Contract Backed Securities (issuable in series), which
registration statement, as amended at the date hereof, has become effective.
Such registration statement, as amended to the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in
all other material respects with such Rule. The Company proposes to file with
the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the
date hereof to the prospectus dated November 25, 1998 relating to the Offered
Notes and the method of distribution thereof and has previously advised the
Underwriters of all further information (financial and other) with respect to
the Offered Notes to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof, is hereinafter
called the "Registration Statement"; such prospectus dated November 25, 1998,
in the form in which it will be filed with the Commission pursuant to Rule
424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such
supplement dated the date hereof to the Basic Prospectus, in the form in which
it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and
the Prospectus Supplement together are hereinafter called the "Prospectus." Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus
Supplement." The Company will file with the Commission within fifteen days of
the issuance of the Offered Notes a report on Form 8-K setting forth specific
information concerning the related Receivables (the "8-K").
B. As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to
Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined
below), any other amendment to the Registration Statement becomes effective,
and when any supplement to the Prospectus is filed with the Commission, and at
the Closing Date, (i) the Registration Statement, as amended as of any such
time, and the Prospectus, as amended or supplemented as of any such time, will
comply in all material respects with the applicable requirements of the Act and
the rules thereunder and (ii) the Registration Statement, as amended as of any
such time, did not and will not contain any untrue statement of a material fact
and did not and will 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 amended or supplemented as of any such time, did not and 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 light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with the information furnished in writing to
the Company by or on behalf of the Underwriters specifically for use in
connection with the preparation of the Registration Statement and the
Prospectus.
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C. The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware, has full power and
authority (corporate and other) to own its properties and conduct its business
as now conducted by it, and as described in the Prospectus, and is duly
qualified to do business in each jurisdiction in which it owns or leases
equipment (to the extent such qualification is required by applicable law) or
in which the conduct of its business requires such qualification except where
the failure to be so qualified does not involve (i) a material risk to, or a
material adverse effect on, the business, properties, financial position,
operations or results of operations of the Company or (ii) any risk whatsoever
as to the enforceability of any Contract.
D. There are no actions, proceedings or investigations
pending, or, to the knowledge of the Company, threatened, before any court,
governmental agency or body or other tribunal (i) asserting the invalidity of
this Agreement, the Indenture, the Receivables Transfer Agreement or the
Servicing Agreement dated as of September 1, 1999 (the "Servicing Agreement"
and together with this Agreement, the Indenture and the Receivables Transfer
Agreement, the "Agreements"), among the Company, as Servicer and as Originator,
the Issuer and the Indenture Trustee, or the Offered Notes; (ii) seeking to
prevent the issuance of the Offered Notes or the consummation of any of the
transactions contemplated by the Agreements; (iii) which may, individually or
in the aggregate, materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of, the
Agreements or the Offered Notes; or (iv) which may affect adversely the federal
income tax attributes of the Offered Notes as described in the Prospectus.
E. The execution and delivery by the Company of the
Agreements are within the corporate power of the Company and have been, or will
be, prior to the Closing Date duly authorized by all necessary corporate action
on the part of the Company and the execution and delivery of such instruments,
the consummation of the transactions therein contemplated and compliance with
the provisions thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute or any
agreement or instrument to which the Company or any of its affiliates is a
party or by which it or any of them is bound or to which any of the property of
the Company or any of its affiliates is subject, the Company's charter or
bylaws, or any order, rule or regulation of any court, governmental agency or
body or other tribunal having jurisdiction over the Company, any of its
affiliates or any of its or their properties; and no consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body or other tribunal is required for the consummation of the transactions
contemplated by this Agreement or the Prospectus in connection with the
issuance and sale of the Offered Notes. Neither the Company nor any of its
affiliates is a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any statute,
order, rule or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the Company or any of its affiliates, which
materially and adversely affects, or may in the future materially and adversely
affect, (i) the ability of the Company to perform its obligations under the
Agreements or (ii) the business, operations, results of operations, financial
position, income, properties or assets of the Company.
F. This Agreement has been duly executed and delivered by the
Company, and the other Agreements will be duly executed and delivered by the
Company, and each constitutes and will constitute the legal, valid and binding
obligation of the Company enforceable in accordance
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with their respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is sought in a
proceeding at law or in equity.
G. The Offered Notes will conform in all material respects to
the description thereof to be contained in the Prospectus and will be duly and
validly authorized and, when duly and validly executed, authenticated, issued
and delivered in accordance with the Indenture and sold to the Underwriters as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Indenture.
H. On the Closing Date, the Receivables will conform in all
material respects to the description thereof contained in the Prospectus and
the representations and warranties contained in this Agreement will be true and
correct in all material respects. The representations and warranties set out in
the Servicing Agreement and the Indenture are hereby made to the Underwriters
as though set out herein, and at the dates specified therein, such
representations and warranties were or will be true and correct in all material
respects.
I. The Company possesses all material licenses, certificates,
permits or other authorizations issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it and as described in the Prospectus and there are no proceedings,
pending or, to the best knowledge of the Company, threatened, relating to the
revocation or modification of any such license, certificate, permit or other
authorization which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the business, operations, results of operations, financial position, income,
property or assets of the Company.
J. Any taxes, fees and other governmental charges in
connection with the execution and delivery of the Agreements or the execution
and issuance of the Offered Notes have been or will be paid at or prior to the
Closing Date.
K. There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company or its subsidiaries, taken as a whole, from June 30, 1999.
L. The Agreements will conform in all material respects to
the descriptions thereof, if any, contained in the Prospectus.
M. The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information; (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose;
or (iii) any notification with respect to the suspension of the qualification
of the Offered Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
3. Agreements of the Underwriters. Each Underwriter, severally and not
jointly, agrees with the Company that upon the execution of this Agreement and
authorization by each
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Underwriter of the release of the Offered Notes, each Underwriter shall offer
the Offered Notes for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented in the amounts set forth in Annex A
hereto.
4. Purchase, Sale and Delivery of the Offered Notes. The Company
hereby agrees, subject to the terms and conditions hereof, to sell the Offered
Notes the Underwriters, who, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
hereby severally and not jointly agree to purchase the principal amount of the
Offered Notes set forth in Annex A hereto. At the time of issuance of the
Offered Notes, the Receivables will be transferred by the Sellers, at the
direction of the Company, to the Trust pursuant to the Receivables Transfer
Agreement.
The Offered Notes to be purchased by each Underwriter will be
delivered by the Company to each Underwriter (which delivery shall be made
through the facilities of The Depository Trust Company ("DTC")) against payment
of the purchase price therefor, equal to $260,135,498, by a same day federal
funds wire payable to the order of the Company.
Settlement shall take place at the offices of Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10
a.m., on September 29, 1999, or at such other time thereafter as each of the
Underwriters and the Company determine (such time being herein referred to as
the "Closing Date"). The Offered Notes will be prepared in definitive form and
in such authorized denominations as each Underwriter may request, registered in
the name of Cede & Co., as nominee of DTC.
The Company agrees to have the Offered Notes available for
inspection and review by the Underwriters in New York not later than 10 a.m.
New York time on the business day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
A. The Company will promptly advise each Underwriter and its
counsel (i) when any amendment to the Registration Statement shall have become
effective; (ii) of any request by the Commission for any amendment to the
Registration Statement or the Prospectus or for any additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening
of any proceeding for that purpose; and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Offered Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus after the date hereof
and prior to the Closing Date for the Offered Notes unless the Company has
furnished each Underwriter and its counsel copies of such amendment or
supplement for their review prior to filing and will not file any such proposed
amendment or supplement to which such Underwriter reasonably objects, unless
such filing is required by law. The Company will use its best efforts to
prevent the issuance of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as possible the
withdrawal thereof.
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B. If, at any time during the period in which the Prospectus
is required by law to be delivered, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the rules under the Act, the Company will
promptly prepare and file with the Commission, subject to Paragraph A of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such
amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause
such amendment of the Registration Statement to be made effective as soon as
possible.
C. The Company will furnish to each Underwriter, without
charge, executed copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a Prospectus by the Underwriters or a
dealer may be required by the Act, as many copies of the Prospectus, as amended
or supplemented, and any amendments and supplements thereto as the Underwriters
may reasonably request. The Company will pay the expenses of printing all
offering documents relating to the offering of the Offered Notes.
X. Xx soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, the Company will make
generally available to Holders of Offered Notes Noteholders an earnings
statement covering a period of at least twelve months beginning after the
effective date of the Registration Statement which will satisfy the provisions
of Section 11(a) of the Act and, at the option of the Company, will satisfy the
requirements of Rule 158 under the Act.
E. So long as any of the Offered Notes are outstanding, the
Company will cause to be delivered to each Underwriter (i) all documents
required to be distributed to the Offered Noteholders and (ii) from time to
time, any other information filed with any government or regulatory authority
that is otherwise publicly available, as any of the Underwriters may reasonably
request.
F. The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
expenses in connection with the transactions contemplated herein, including but
not limited to the expenses of printing (or otherwise reproducing) all
documents relating to the offering, the fees and disbursements of its counsel
and expenses of each Underwriter incurred in connection with (i) the issuance
and delivery of the Offered Notes; (ii) preparation of all documents specified
in this Agreement; (iii) any fees and expenses of the Indenture Trustee; (iv)
any fees and expenses of the Owner Trustee; (v) any fees and expenses of the
Insurer; and (vi) any fees charged by investment rating agencies for rating the
Offered Notes.
G. The Company agrees that, so long as any of the Offered
Notes shall be outstanding, it will deliver or cause to be delivered to each
Underwriter (i) the annual statement as to compliance delivered to the
Indenture Trustee pursuant to the Servicing Agreement; (ii) the annual
statement of a firm of independent public accountants furnished to the
Indenture Trustee pursuant to the Servicing Agreement as soon as such statement
is furnished to the Company; and
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(iii) any information and reports required to be delivered by the Servicer
pursuant to Article 4 of the Servicing Agreement.
H. The Company will enter into the Agreements and all related
agreements on or prior to the Closing Date.
I. The Company will endeavor to qualify the Offered Notes for
sale to the extent necessary under any state securities or Blue Sky laws in any
jurisdictions as may be reasonably requested by the Underwriters, if any, and
will pay all expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the determination of
the eligibility of the Offered Notes for investment under the laws of such
jurisdictions as the Underwriters may reasonably designate, if any.
6. Conditions of the Underwriters' Obligation. The obligation of each
Underwriter to purchase and pay for the Offered Notes as provided herein shall
be subject to the accuracy as of the date hereof and the Closing Date (as if
made at the Closing Date) of the representations and warranties of the Company
contained herein (including those representations and warranties set forth in
the Servicing Agreement and the Indenture and incorporated herein), to the
accuracy of the statements of the Company made in any certificate or other
document delivered pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
A. The Registration Statement shall have become effective no
later than the date hereof, and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened, and the Prospectus shall have
been filed pursuant to Rule 424(b).
B. The Underwriters shall have received the Indenture and the
Offered Notes in form and substance satisfactory to the Underwriters, duly
executed by all signatories required pursuant to the respective terms thereof.
C. The Underwriters shall have received the favorable opinion
of Xxxxx Xxxxxxxxxx LLP, counsel to the Company with respect to the following
items, dated the Closing Date, to the effect that:
(1) The Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, and is qualified to do
business in each state necessary to enable it to perform its
obligations under each of the Agreements. The Company has the
requisite power and authority to execute and deliver, engage
in the transactions contemplated by, and perform and observe
the conditions of each of the Agreements.
(2) Each of the Agreements has been duly and validly
authorized, executed and delivered by the Company, all
requisite corporate action having been taken with respect
thereto, and each constitutes the valid, legal and binding
agreement of the Company, and would be enforceable against
the Company in accordance with their respective terms.
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(3) Neither the transfer of the Receivables to the
Trust, the issuance or sale of the Offered Notes nor the
execution, delivery or performance by the Company of, the
Agreements (A) conflicts or will conflict with or results or
will result in a breach of, or constitutes or will constitute
a default under, (i) any term or provision of the certificate
of incorporation or bylaws of the Company; (ii) to the best
of such counsel's knowledge, any term or provision of any
material agreement, contract, instrument or indenture, to
which the Company is a party or is bound; or (iii) to the
best of such counsel's knowledge, any order, judgment, writ,
injunction or decree of any court or governmental agency or
body or other tribunal having jurisdiction over the Company;
or (B) results in, or will result in the creation or
imposition of any lien, charge or encumbrance upon the Trust
or upon the Offered Notes, except as otherwise contemplated
by the Indenture.
(4) No consent, approval, authorization or order of,
registration or filing with, or notice to, courts,
governmental agency or body or other tribunal is required
under the laws of the State of New York, for the execution,
delivery and performance of the Agreements, or the offer,
issuance, sale or delivery of the Offered Notes or the
consummation of any other transaction contemplated thereby by
the Company, except such which have been obtained.
(5) There are no actions, proceedings or
investigations pending or, to such counsel's knowledge,
threatened against the Company before any court, governmental
agency or body or other tribunal (i) asserting the invalidity
of the Agreements or the Offered Notes; (ii) seeking to
prevent the issuance of the Offered Notes or the consummation
of any of the transactions contemplated by the Agreements; or
(iii) which would materially and adversely affect the
performance by the Company of obligations under, or the
validity or enforceability of, the Offered Notes or the
Agreements.
(6) Except as to any financial or statistical data
contained in the Registration Statement, to the best of such
counsel's knowledge, the Registration Statement does not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading.
(7) To the best of the knowledge of such counsel,
the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement or any order
directed to any prospectus relating to the Offered Notes
(including the Prospectus), and has not initiated or
threatened any proceeding for that purpose.
In rendering their opinions, the counsel described in this
Paragraph C may rely, as to matters of fact, on certificates of responsible
officers of the Company, the Indenture Trustee and public officials. Such
opinions may also assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the Company.
D. The Underwriters shall have received a letter from Xxxxxx
Xxxxxxxx LLP, dated on or before the Closing Date, in form and substance
satisfactory to the Underwriters and
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counsel for the Underwriters, to the effect that they have performed certain
specified procedures requested by the Underwriters with respect to the
information set forth in the Prospectus and certain matters relating to the
Company.
E. The Class A-1 Notes shall have been rated "P-1" by Xxxxx'x
Investors Service, Inc. ("Xxxxx'x"), "A-1+" by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"), "F1+/AAA" by
Fitch IBCA, Inc. ("Fitch") and "D-1+" by Xxxx & Xxxxxx Credit Rating Co.
("DCR"), the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall
have been rated "Aaa" by Moody's and "AAA" by S&P, Fitch and DCR and the Class
B Notes shall have been rated "A2" by Xxxxx'x and "A" by S&P, Fitch and DCR and
none of such ratings shall have been rescinded. The Underwriters and their
counsel shall have received copies of any opinions of counsel supplied to the
rating organizations relating to any matters with respect to the Offered Notes.
Any such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters to the Underwriters or shall
state that the Underwriters may rely upon them.
F. The Underwriters shall have received from the Company a
certificate, signed by the president, a senior vice president or a vice
president of the Company, dated the Closing Date, to the effect that the signer
of such certificate has carefully examined the Registration Statement and the
Agreements and that, to the best of his or her knowledge based upon reasonable
investigation:
(1) the representations and warranties of the Company in this
Agreement, as of the Closing Date, and in the other Agreements and in
all related Agreements, as of the date specified in such Agreements,
are true and correct, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(2) there are no actions, suits or proceedings pending, or to
the best of such officer's knowledge, threatened against or affecting
the Company which if adversely determined, individually or in the
aggregate, would be reasonably likely to adversely affect the
Company's obligations under the Agreements in any material way; and no
merger, liquidation, dissolution or bankruptcy of the Company is
pending or contemplated;
(3) the information contained in the Registration Statement
relating to the Company and the Receivables is true and accurate in
all material respects and nothing has come to his or her attention
that would lead such officer to believe that the Registration
Statement includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not
misleading;
(4) the information set forth in the List of Contracts
required to be furnished pursuant to the Receivables Transfer
Agreement is true and correct in all material respects;
(5) there has been no amendment or other document filed
affecting the articles of incorporation or bylaws of the Company since
June 30, 1999, and no such amendment has been authorized. No event has
occurred since September __, 1999,
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which has affected the good standing of the Company under the laws of
the State of Delaware;
(6) there has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
June 30, 1999; and
(7) each person who, as an officer or representative of the
Company, signed or signs the Registration Statement, the Agreements or
any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in this Agreement was, at the
respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
The Company shall attach to such certificate a true and
correct copy of its articles of incorporation and bylaws which are in full
force and effect on the date of such certificate, and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
G. There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since June 30, 1999, of
(A) the Company its subsidiaries and affiliates or (B) the Insurer, that is in
the Underwriters' judgment material and adverse and that makes it in the
Underwriters' judgment impracticable to market the Offered Notes on the terms
and in the manner contemplated in the Prospectus.
H. The Underwriters shall have received a favorable opinion
of counsel to the Indenture Trustee, dated the Closing Date and in form and
substance satisfactory to the Underwriters, to the effect that:
(1) the Indenture Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
State of New York and has the power and authority to enter into and to
take all actions required of it under the Indenture;
(2) each of (i) the Indenture and (ii) the Servicing
Agreement has been duly authorized, executed and delivered by the
Indenture Trustee and each constitutes the legal, valid and binding
obligation of the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its respective terms, except as
enforceability thereof may be limited by (A) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, as such laws would apply in the event of
a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Indenture Trustee, and (B) general principles of equity
regardless of whether such enforcement is sought in a proceeding at
law or in equity;
(3) no consent, approval, authorization or other action by
any governmental agency or body or other tribunal is required on the
part of the Indenture
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Trustee in connection with its execution and delivery of the Indenture
or the Servicing Agreement or the performance of its obligations
thereunder;
(4) the Offered Notes have been duly executed, authenticated
and delivered by the Indenture Trustee and assuming delivery and
payment are validly issued therefor and outstanding and are entitled
to the benefits of the Indenture; and
(5) the execution and delivery of, and performance by the
Indenture Trustee of its obligations under, the Indenture or the
Servicing Agreement do not conflict with or result in a violation of
any statute or regulation applicable to the Indenture Trustee, or the
charter or bylaws of the Indenture Trustee, or to the best knowledge
of such counsel, any governmental authority having jurisdiction over
the Indenture Trustee or the terms of any indenture or other agreement
or instrument to which the Indenture Trustee is a party or by which it
is bound.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the Company, the
Indenture Trustee and public officials. Such opinion may also assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Indenture Trustee.
I. The Underwriters shall have received from the Indenture
Trustee a certificate, signed by the president, a senior vice president or a
vice president of the Indenture Trustee, dated the Closing Date, to the effect
that each person who, as an officer or representative of the Indenture Trustee,
signed or signs the Offered Notes, the Indenture, the Servicing Agreement or
any other document delivered pursuant hereto, on the date hereof or on the
Closing Date, in connection with the transactions described in the Indenture
was, at the respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents are their
genuine signatures.
J. The Underwriters shall have received a favorable opinion
of counsel to the Owner Trustee, dated the Closing Date and in form and
substance satisfactory to the Underwriters, to the effect that:
(1) The Owner Trustee is duly incorporated, validly existing
and in good standing as a banking corporation under the laws of the
State of Delaware.
(2) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement, the Receivables Transfer
Agreement, the Servicing Agreement and the Indenture (collectively,
the "Owner Trustee Agreements").
(3) Each of the Owner Trust Agreements has been duly
authorized, executed and delivered by the Owner Trustee and
constitutes a legal, valid and binding obligation of the Owner
Trustee, enforceable against the Owner Trustee, in accordance with its
terms.
(4) To the best of counsel's knowledge, without independent
investigation, neither the execution or delivery by the Owner Trustee
of the Owner
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Trustee Agreements nor the compliance by the Owner Trustee with any of
the terms thereof or consummation of the transactions contemplated
thereby requires the consent or approval of, the giving of notice to,
the registration with, or the taking of any action with respect to,
any governmental authority or agency under the laws of the State of
Delaware.
(5) Neither the execution, delivery and performance by the
Owner Trustee of the Owner Trustee Agreements, nor the consummation of
the transactions contemplated thereby, nor compliance with the terms
thereof, will violate or result in a breach of, or constitute a
default under the provisions of such Owner Trustee Agreements or the
articles of association or by-laws of the Owner Trustee or, to the
best of counsel's knowledge, without independent investigation, any
law, rule or regulation of the State of Delaware applicable to the
Owner Trustee.
K. The Underwriters shall have received from the Owner
Trustee a certificate, signed by the president, a senior vice president or a
vice president of the Owner Trustee, dated the Closing Date, to the effect that
each person who, as an officer or representative of the Owner Trustee, signed
or signs the Certificates, the Owner Trustee Agreements or any other document
delivered pursuant hereto, on the date hereof or on the Closing Date, in
connection with the transactions described in the Indenture was, at the
respective times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
L. The Underwriters shall have received from Xxxxx Xxxxxxxxxx
LLP, special counsel to the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Offered Notes, the
Prospectus and such other related matters as the Underwriters shall reasonably
require.
M. The Underwriters and their counsel shall have received
copies of any opinions of counsel to the Company or the Indenture Trustee
supplied to the Indenture Trustee relating to matters with respect to the
Notes, the formation of the Trust or the acquisition of the Receivables. Any
such opinions shall be satisfactory to the Underwriters in form and substance.
N. The Underwriters shall have received an opinion from Xxxxx
Xxxxxxxxxx LLP, special tax counsel to the Company to the effect that the
statements in the Prospectus Supplement under the heading "CERTAIN FEDERAL
INCOME TAX CONSIDERATIONS" accurately describe the material federal income tax
consequences to the holders of the Offered Notes.
O. The Underwriters shall have received such further
information, certificates and documents as the Underwriters may reasonably have
requested not fewer than three (3) full business days prior to the Closing
Date.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel, this Agreement and all
obligations of the Underwriters
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hereunder, may be canceled on, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Expenses. If the sale of the Offered Notes provided for herein is
not consummated by reason of a default by the Company in its obligations
hereunder, then the Company will reimburse the Underwriters, upon demand, for
all reasonable out-of-pocket expenses (including, but not limited to, the
reasonable fees and expenses of counsel for the Underwriters) that shall have
been incurred by it in connection with its investigation with regard to the
Company and the Offered Notes and the proposed purchase and sale of the Offered
Notes.
8. Indemnification and Contribution.
A. Regardless of whether any Offered Notes are sold, the
Company will indemnify and hold harmless each Underwriter, each of their
respective officers and directors and each person who controls each Underwriter
within the meaning of the Act or the Securities Exchange Act of 1934 (the "1934
Act"), against any and all losses, claims, damages, or liabilities (including
the cost of any investigation, legal and other expenses incurred in connection
with and amounts paid in settlement of any action, suit, proceeding or claim
asserted), joint or several, to which they may become subject, under the Act,
the 1934 Act or other federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained (i) in the Registration
Statement, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, not misleading or (ii) in the
Basic Prospectus or the Prospectus Supplement or any amendment thereto or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse each such indemnified party for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
relating to the Underwriter furnished to the Company by such Underwriter
specifically for use in connection with the preparation thereof.
B. Regardless of whether any Offered Notes are sold, each
Underwriter, severally and not jointly, will indemnify and hold harmless the
Company, each of its officers and directors and each person, if any, who
controls the Company within the meaning of the Act or the 1934 Act against any
losses, claims, damages or liabilities to which they become subject under the
Act, the 1934 Act or other federal or state law or regulation, at common law or
otherwise, to the same extent as the foregoing indemnity, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in (i) the Registration Statement, or any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading or in (ii) the Basic Prospectus or the
Prospectus Supplement or any amendment thereto or supplement thereto, or arise
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out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made therein in reliance upon and
in conformity with written information relating to the Underwriter furnished to
the Company by such Underwriter specifically for use in the preparation thereof
and so acknowledged in writing, and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending against such loss, claim, damage, liability or
action.
C. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraphs A, B and E of this Section 8,
such person (hereinafter called the indemnified party) shall promptly notify
the person against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing thereof; but the omission to notify the
indemnifying party shall not relieve such indemnifying party from any liability
which it may have to any indemnified party otherwise than under such Paragraph.
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
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Underwriters in the case of parties indemnified pursuant to
paragraph A of this Section 8 and by the Company in the case of parties
indemnified pursuant to paragraphs B and E of this Section 8. 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. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated above,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
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
proceeding.
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D. Each Underwriter agrees, severally and not jointly, to
provide the Company no later than the date on which the Prospectus Supplement
is required to be filed pursuant to Rule 424 with a copy of any Derived
Information (defined below) for filing with the Commission on Form 8-K.
E. Each Underwriter agrees, jointly and not severally,
assuming all Company-Provided Information (defined below) is accurate and
complete in all material respects, to indemnify and hold harmless the Company,
its respective officers and directors and each person who controls the Company
within the meaning of the Securities Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Derived Information provided by such Underwriter, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The several obligations of
each Underwriter under this Section 8(E) shall be in addition to any liability
which each Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally
applicable to this Section 8(E).
F. For purposes of this Section 8, the term "Derived
Information" means such portion, if any, of the information delivered to the
Companies pursuant to Section 8(D) for filing with the Commission on Form 8-K
as: (i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and (ii) does not constitute
Company-Provided Information. "Company-Provided Information" means any computer
tape furnished to the Underwriters by the Company concerning the assets
comprising the Trust.
G. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to herein, then each 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 (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and each Underwriter from the sale of the
Offered 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 relative benefits referred to in clause (i) above but also the
relative fault of the Company and of each Underwriter in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and each Underwriter shall be deemed
to be in such proportion so that each Underwriter is responsible for that
portion determined by multiplying the total amount of such losses, claims,
damages and liabilities, including legal and other expenses, by a fraction, the
numerator of which is (x) the excess of the Aggregate Resale Price (as defined
below) of the Offered Notes underwritten by such Underwriter over the aggregate
purchase price of such Offered Notes specified in Section 4 of this Agreement
and the related Prospectus Supplement, and the
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denominator of which is (y) the Aggregate Resale Price of such Offered Notes,
and the Company is responsible for the balance; provided, however, that 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. For purposes of the immediately
preceding sentence, the "Aggregate Resale Price" of the Offered Notes at the
time of any determination shall be the weighted average of the purchase prices
(in each case expressed as a percentage of the aggregate principal amount of
the Offered Notes so purchased), determined on the basis of such principal
amounts, paid to the Underwriter by all subsequent purchasers that purchased
the Offered Notes on or prior to such date of determination. The relative fault
of the Company and each Underwriter shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
H. The Company and each Underwriter agree that it would not
be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
G of this Section 8. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in paragraph
G of this Section 8 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 8, none of the
Underwriters shall be required to contribute any amount by which the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission
exceeds the Aggregate Resale Price.
I. The Company and each Underwriter each expressly waive, and
agree not to assert, any defense to their respective indemnification and
contribution obligations under this Section 8 which they might otherwise assert
based upon any claim that such obligations are unenforceable under federal or
state securities laws or by reasons of public policy.
J. The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act or the 1934 Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to
any liability that the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company and to each
person, if any, who controls the Company within the meaning of the Act or the
1934 Act; provided, however, that in no event shall the Company or the
Underwriters be liable for double indemnification.
9. Information Supplied by Underwriters. The statements set forth on
the front cover page of the Prospectus Supplement regarding market-making and
under the heading "Method of Distribution" in the Prospectus Supplement (to the
extent such statements relate to the Underwriter) constitute the only
information furnished by the Underwriters to the Company for the purposes of
Sections 2(B) and 8(A) hereof. Each Underwriter confirms that such statements
(to such extent) are correct.
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10. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to First Union Capital Markets Corp., One First Union
Center, TW-06, Charlotte, North Carolina 28288, Attention: Xxxx Xxxxxxxxx; and,
if sent to the Company, shall be mailed, delivered or telegraphed and confirmed
in writing to First Sierra Financial, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxx.
11. Survival. All representations, warranties, covenants and
agreements of the Company contained herein or in agreements or certificates
delivered pursuant hereto, the agreements of the Underwriters and the Company
contained in Section 8 hereof, and the agreement of the Underwriters contained
in Section 3 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriters or any
controlling persons, or any subsequent purchaser or the Company or any of its
officers, directors or any controlling persons, and shall survive delivery of
and payment for the Offered Notes. The provisions of Sections 5, 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Termination. The Underwriters shall have the right to terminate
this Agreement by giving notice as hereinafter specified at any time at or
prior to the Closing Date if (a) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange or
the American Stock Exchange, (b) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (c) a
general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities, (d) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis which, in the Underwriters' reasonable judgment, is material
and adverse, and, in the case of any of the events specified in clauses (a)
through (d), such event singly or together with any other such event makes it
in the Underwriters' reasonable judgment impractical to market the Offered
Notes. Any such termination shall be without liability of any other party
except that the provisions of Paragraph G of Section 5 (except with respect to
expenses of the Underwriters) and Sections 7 and 8 hereof shall at all times be
effective.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the signatories hereto and their respective successors and assigns
(which successors and assigns do not include any person purchasing an Offered
Note from the Underwriters), and the officers and directors and controlling
persons referred to in Section 8 hereof and their respective successors and
assigns, and no other persons will have any right or obligations hereunder.
14. APPLICABLE LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. ANY
ACTION OR PROCEEDING BROUGHT TO ENFORCE OR ARISING OUT OF ANY PROVISION OF THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE
BOROUGH OF MANHATTAN, NEW YORK CITY, NEW YORK, AND THE PARTIES HERETO EXPRESSLY
CONSENT TO THE JURISDICTION OF SUCH COURTS AND AGREE TO WAIVE ANY DEFENSE OR
CLAIM OF FORUM NON CONVENIENS THEY MAY HAVE WITH RESPECT TO ANY SUCH ACTION OR
PROCEEDING BROUGHT.
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15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
16. Amendments and Waivers. This Agreement may be amended, modified,
altered or terminated, and any of its provisions waived, only in a writing
signed on behalf of the signatories hereto.
17. Default of Underwriters. If any of the Underwriters defaults in
its obligations to purchase the Offered Notes offered to it hereunder (such
Underwriter, the "Defaulting Underwriter"), then the remaining Underwriters
(the "Performing Underwriters") shall have the option, but not the obligation,
to purchase all, but not less than all, of the Offered Notes offered to the
Defaulting Underwriter. If a Performing Underwriter elects not to exercise such
option, then this Agreement will terminate without liability on the part of
such Performing Underwriter. Nothing contained herein shall relieve the
Defaulting Underwriter from any and all liabilities to the Company and the
Performing Underwriters resulting from the default of the Defaulting
Underwriter.
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Execution
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
FIRST SIERRA FINANCIAL, INC.
By: /s/ X. Xxxxx Xxxxxxx
------------------------------------
Name: X. Xxxxx Xxxxxxx
Title: Senior Vice President
Agreed to and Accepted by:
(as of the date hereof)
FIRST UNION CAPITAL MARKETS CORP.
as Representative of the Several Underwriters
By: /s/ Xxxxx X'Xxxxxx
--------------------------------------
Name: Xxxxx X'Xxxxxx
Title: Vice President
[Underwriting Agreement Signature Page]
20
Execution
Annex A
Underwriting
Class A-1 Notes
---------------
Principal
Underwriter Percentage Amount
----------- ---------- ---------
First Union Capital Markets 60% $18,490,927
Xxxxxxx Xxxxx Securities, Inc. 30% 9,245,464
PNC Capital Markets, Inc. 10% 3,081,821
Class A-2 Notes
---------------
Principal
Underwriter Percentage Amount
----------- ---------- ---------
First Union Capital Markets 60% $19,173,831
Xxxxxxx Xxxxx Securities, Inc. 30% 9,586,916
PNC Capital Markets, Inc. 10% 3,195,639
Class A-3 Notes
---------------
Principal
Underwriter Percentage Amount
----------- ---------- ---------
First Union Capital Markets 60% $11,294,174
Xxxxxxx Xxxxx Securities, Inc. 30% 5,647,087
PNC Capital Markets, Inc. 10% 1,882,362
Class A-4 Notes
---------------
Principal
Underwriter Percentage Amount
----------- ---------- ---------
First Union Capital Markets 60% $37,191,979
Xxxxxxx Xxxxx Securities, Inc. 30% 18,595,989
PNC Capital Markets, Inc. 10% 6,198,663
21
Class B Notes
-------------
Principal
Underwriter Percentage Amount
----------- ---------- ---------
First Union Capital Markets 100% $13,570,520
ii
