XXXXXX FUNDING CORPORATION (Trust Depositor)
XXXXXX FINANCIAL, INC. (Servicer)
UNDERWRITING AGREEMENT
December [__], 1999
First Union Securities, Inc.
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c/o First Union Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Xxxxxx Funding Corporation, a Delaware corporation (the
"TRUST DEPOSITOR"), proposes to cause the Xxxxxx Equipment Asset Receivables
Trust 1999-2 (the "TRUST") to issue the asset backed notes identified in
Schedule I hereto (the "NOTES"). The Notes will be issued pursuant to and
secured by an indenture (the "INDENTURE") to be entered into between the
Trust and Norwest Bank Minnesota, National Association as trustee (the
"INDENTURE TRUSTEE"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). The Notes identified in Schedule I
hereto will be sold in a public offering through the underwriters listed in
Schedule II hereto, one or more of which may act as representative of such
underwriters (any underwriter through which Notes are sold shall be referred
to herein as an "UNDERWRITER" or, collectively, all such Underwriters may be
referred to as the "UNDERWRITERS"; any representatives thereof may be
referred to herein as a "REPRESENTATIVE"). To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Sale and Servicing Agreement among the Trust Depositor, the Trust, the
Indenture Trustee, Xxxxxx Financial, Inc., as servicer (the "SERVICER") and
an originator, and Xxxxxx Financial Leasing, Inc., as an originator, dated as
of December [__], 1999.
Section 1. REPRESENTATIONS AND WARRANTIES. The Trust
Depositor and the Servicer, jointly and severally, represent and warrant to
each Underwriter that:
(a) The Trust Depositor has prepared and filed with the
Securities and Exchange Commission (the "COMMISSION") in accordance
with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"SECURITIES ACT"), a registration statement on Form S-1 (registration
number 33-83111), including a form of prospectus, relating to the
Notes.
The registration statement, and any post-effective amendment
thereto, each in the form heretofore delivered to the Underwriters and,
excluding exhibits thereto, have been declared effective by the
Commission. As used in this Agreement, "EFFECTIVE TIME" means the date
and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared effective
by the Commission and "Effective Date" means the date of the Effective
Time. The Trust Depositor has furnished to the Underwriters, for use by
the Underwriters, copies of one or more preliminary prospectuses (each,
a "PRELIMINARY PROSPECTUS"), relating to the Notes. Except where the
context otherwise requires, the registration statement, as amended at
the Effective Time, including all documents filed as a part thereof,
and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Securities
Act and deemed to be part of the registration statement as of the
Effective Time pursuant to Rule 430A under the Securities Act, is
herein called the "REGISTRATION STATEMENT", and the prospectus, in the
form filed by the Trust Depositor with the Commission pursuant to Rule
424(b) under the Securities Act or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the
time it became effective, is hereinafter called the "PROSPECTUS".
(b) The Registration Statement relating to the Notes, has been
filed with the Commission and such Registration Statement has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Trust Depositor
or Servicer, threatened by the Commission.
(c) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, and as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) of
the Indenture Trustee under the Trust Indenture Act or (ii) any
Underwriters' Information (as defined in Section 10(d) hereof)
contained therein. The Indenture conforms in all respects to the
requirements of the Trust Indenture Act and the rules and regulations
of the Commission thereunder.
(d) The representations and warranties of the Trust Depositor
in Section 3.01 of the Sale and Servicing Agreement will be true and
correct as of the Closing Date.
(e) The representations and warranties of the Servicer in
Section 3.02 of the Sale and Servicing Agreement will be true and
correct as of the Closing Date.
(f) The Servicer and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective
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jurisdictions of incorporation, are duly qualified to do business
and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to so qualify or
have such power or authority could not have, individually or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the
Servicer and its subsidiaries taken as a whole.
(g) All the outstanding shares of capital stock of the Trust
Depositor have been duly authorized and validly issued, are fully paid
and nonassessable and, except to the extent set forth in the
Registration Statement, are owned by the Servicer directly or
indirectly through one or more wholly-owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
(h) (i) the Sale and Servicing Agreement, when duly executed
by the Trust Depositor and the Servicer and delivered by such parties,
will constitute a valid and binding agreement of the Trust Depositor
and the Servicer enforceable against them in accordance with its terms;
(ii) the Indenture, when duly executed by the Indenture Trustee and
delivered by the Indenture Trustee, will constitute a valid and binding
agreement of the Trust enforceable against the Trust in accordance with
its terms; (iii) the Notes, when duly executed, authenticated, issued
and delivered as provided in the Indenture, will be duly and validly
issued and outstanding and will constitute valid and binding
obligations of the Trust entitled to the benefits of the Indenture and
enforceable in accordance with its terms; and (iv) the Indenture, the
Sale and Servicing Agreement, the Trust Agreement between the Trust
Depositor and Wilmington Trust Company, as Owner Trustee and the
Transfer and Sale Agreement among Xxxxxx Financial, Inc. as the
Servicer and a Seller, Xxxxxx Financial Leasing, Inc., as a Seller, and
together with Xxxxxx Financial, Inc., the "SELLERS", and the Trust
Depositor (collectively, the "TRANSACTION AGREEMENTS") and the Notes
conform to the descriptions thereof contained in the Prospectus.
(i) The execution, delivery and performance of this Agreement,
the Transaction Agreements to which the Servicer or its subsidiary, as
the case may be, is a party and the issuance and sale of the Notes, the
consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Servicer or any of its subsidiaries is bound or
to which any of the property or assets of the Servicer of any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Servicer or any of
its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Servicer or any of its subsidiaries or any of their properties or
assets; and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the Trust
Indenture Act, such consents, approvals, authorizations, registrations
or qualifications as may be required under the Securities
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Exchange Act of 1934, as amended (the "EXCHANGE ACT") and applicable
state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing of any
financing statements required to perfect the Trust's interest in the
Trust Assets, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement or the Transaction Agreements, the issuance and sale
of the Notes and the consummation of the transactions contemplated
hereby and thereby.
(j) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act and which have not been so
described or filed.
(k) There are no legal or governmental proceedings pending to
which the Servicer or any of its subsidiaries is a party or of which
any property or assets of the Servicer or any of its subsidiaries is
the subject which, individually or in the aggregate, if determined
adversely to the Servicer or any of its subsidiaries, are reasonably
likely to have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the
Servicer or its subsidiaries taken as a whole; and to the best of the
Servicer's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(l) Neither the Servicer nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) is in violation
in any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject,
except any violation or default that could not have a material adverse
effect on the condition (financial or otherwise), results of
operations, business or prospects of the Servicer and its subsidiaries
taken as a whole.
(m) This Agreement has been duly authorized, executed and
delivered by each of the Trust Depositor and the Servicer; and
(n) Neither the Trust nor the Trust Depositor is required to
be registered under the Investment Company Act of 1940, as amended.
Section 2. PURCHASE AND SALE. Subject to the terms and
conditions and in reliance upon the covenants, representations and warranties
herein set forth, the Trust Depositor agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Trust
Depositor, the principal amount of Notes set forth opposite such Underwriter's
name in Schedule II hereto. The purchase price for the Notes shall be as set
forth in Schedule I hereto.
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Section 3. DELIVERY AND PAYMENT. Payment for the Notes shall
be made to the Trust Depositor or to its order by wire transfer of same day
funds at the office of Winston & Xxxxxx in Chicago, Illinois at 9:00 A.M.,
Illinois time, on the Closing Date (as hereinafter defined), or at such other
time on the same or such other date as the Representative and the Trust
Depositor may agree upon. The time and date of such payment for the Notes as
specified in Schedule I hereto are referred to herein as the "CLOSING DATE." As
used herein, the term "BUSINESS DAY" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in writing
not later than two full Business Days prior to the Closing Date. The Trust
Depositor shall make the Notes available for inspection by the Representative in
New York, New York not later than one full Business Day prior to the Closing
Date.
Section 4. OFFERING BY UNDERWRITERS. It is understood that the
several Underwriters propose to offer the Notes for sale to the public, which
may include selected dealers, as set forth in the Prospectus.
Section 5. COVENANTS OF THE TRUST DEPOSITOR. The Trust
Depositor and the Servicer, jointly and severally, covenant and agree with each
Underwriter as follows:
(a) The Trust Depositor will prepare the Prospectus in a form
approved by the Representative and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act.
(b) During the period that a prospectus relating to the Notes
is required to be delivered under the Securities Act in connection with
sales of such Notes (such period being hereinafter sometimes referred
to as the "prospectus delivery period"), before filing any amendment or
supplement to the Registration Statement or the Prospectus, the Trust
Depositor will furnish to the Representative a copy of the proposed
amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representative reasonably objects.
(c) During the prospectus delivery period, the Trust Depositor
will advise the Representative promptly after it receives notice
thereof, (i) when any amendment to the Registration Statement shall
have become effective; (ii) of any request by the Commission for any
amendment or supplement 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 initiation or threatening of any
proceeding for that purpose, (iv) of the issuance by the Commission of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of any
proceedings for that purpose and (v) of any notification with respect
to any suspension of the qualification of the Notes for offer
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and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and will use its best efforts to
prevent the issuance of any such stop order or suspension and, if
any is issued, will promptly use its best efforts to obtain the
withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Prospectus as then 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 Securities Act, the Trust Depositor promptly will
prepare and file with the Commission, an amendment or a supplement
which will correct such statement or omission or effect such
compliance.
(e) The Trust Depositor will endeavor to qualify the Notes for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will
continue such qualification in effect so long as reasonably required
for distribution of the Notes; provided, however, that the Trust
Depositor shall not be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified; and provided,
further, that the Trust Depositor shall not be required to file a
general consent to service of process in any jurisdiction.
(f) The Trust Depositor will furnish to the Representative,
without charge, two copies of the Registration Statement (including
exhibits thereto), one of which will be signed, and to each Underwriter
conformed copies of the Registration Statement (without exhibits
thereto) and, during the prospectus delivery period, as many copies of
any Preliminary Prospectus and the Prospectus and any supplement
thereto as the Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever first
occurs, the Trust Depositor will deliver to the Underwriters (i) the
annual statements of compliance, (ii) the annual independent certified
public accountants' reports furnished to the Indenture Trustee, (iii)
all documents required to be distributed to Noteholders and (iv) all
documents filed with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder, in each case as provided to the
Indenture Trustee or filed with the Commission, as soon as such
statements and reports are furnished to the Indenture Trustee or filed
or as soon thereafter as practicable.
(h) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially
rate the Notes is conditional upon the furnishing of documents or the
taking of any other actions by the Trust Depositor, the Trust Depositor
shall furnish such documents and take any such other actions.
(i) The Trust Depositor will cause the Trust to make generally
available to Noteholders and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the
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Trust occurring after the Effective Date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated
thereunder.
(j) [For a period of 90 days from the date hereof, the Trust
Depositor will not offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement
for, or announce any offering of, any securities collateralized by, or
evidencing an ownership interest in, any asset-backed securities of the
Trust Depositor or the Trust (other than the Notes purchased hereunder)
without the prior written consent of the Underwriters.]
Section 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The respective obligations of the several Underwriters hereunder are subject to
the accuracy, when made and on the Closing Date, of the representations and
warranties of the Trust Depositor and the Servicer contained herein and in the
Transaction Agreements, to the accuracy of the statements of the Trust Depositor
and the Servicer made in any certificates pursuant to the provisions hereof, to
the performance by the Trust Depositor and the Servicer of their respective
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time
period prescribed for such filing by the rules and regulations of the
Commission under the Securities Act and in accordance with Section 5(a)
of this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for such purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information from the Commission with respect to
the Registration Statement shall have been complied with to the
reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Transaction Agreements, the Notes, the Registration Statement, the
Preliminary Prospectus and the Prospectus, and all other legal matters
relating to such agreements and the transactions contemplated hereby
and thereby shall be reasonably satisfactory in all material respects
to counsel for the Underwriters, and the Trust Depositor shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters and (ii)
prior to or contemporaneously with the purchase of Notes hereunder, all
transactions contemplated to be consummated under such Transaction
Agreements on the Closing Date (including, without limitation, the
issuance and placement of any subordinated, privately-placed
securities) shall have been so consummated to the reasonable
satisfaction of the Underwriters.
(c) Winston & Xxxxxx shall have furnished to the
Representative their written opinion, as U.S. counsel to the Trust
Depositor and the Servicer, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters.
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(d) Xxxxxxx X. Xxxxxxxx shall have furnished to the
Representative his written opinion, as Senior Counsel to the Servicer,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(e) Winston & Xxxxxx shall have furnished to the
Representative their written opinion, as U.S. counsel to the Trust
Depositor and the Servicer, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, with respect to the characterization of the transfer of
the Assets by the Sellers to the Trust Depositor pursuant to the
Transfer and Sale Agreement as a sale and the non-consolidation of the
Trust Depositor and the Servicer.
(f) The Representative shall have received from Cadwalader,
Xxxxxxxxxx & Xxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Underwriters may require, and the Trust Depositor shall have furnished
to such counsel such documents as they reasonably request for enabling
them to pass upon such matters.
(g) (i) Xxxxxxxx X. Xxxxxxx shall have furnished to the
Representative here written opinion, as Assistant General Counsel to
the Indenture Trustee, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters and (ii) Xxxxxxxx Xxxxxx & Finger shall have furnished to
the Representative their written opinion, as counsel to the Owner
Trustee, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters.
(h) Each of the Trust Depositor and the Servicer shall have
furnished to the Representative a certificate, dated the Closing Date,
of any of its Chairman of the Board, President or Vice President and
its chief financial officer stating that (i) such officers have
carefully examined the Registration Statement and the Prospectus, (ii)
the Prospectus 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, in the light of the
circumstances under which they were made, not misleading (provided that
each of the Trust Depositor and the Servicer may exclude the
Underwriters' Information (as defined in Section 10(d) herein) from
such representation), (iii) the representations and warranties of the
Servicer or the Trust Depositor, as the case may be, contained in this
Agreement and the Transaction Agreements are true and correct in all
material respects on and as of the Closing Date, (iv) the Servicer or
the Trust Depositor, as the case may be, has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder and under
such agreements at or prior to the Closing Date, (v) no stop order
suspending the effectiveness of the Registration Statement has been
issued and is outstanding and no proceedings for that purpose have been
instituted and not terminated or, to the best of his or her knowledge,
are contemplated by the Commission, and (vi) since the date of its most
recent financial statements, there has been no material adverse change
in the financial position or results of operations of the Servicer or
the Trust Depositor, as applicable, or the Trust or any change, or any
development including a prospective change, in or affecting the
condition (financial or otherwise), results of
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operations or business of the Servicer, the Trust Depositor or the
Trust except as set forth in or contemplated by the Registration
Statement and the Prospectus.
(i) Subsequent to the date of this Agreement, there shall not
have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Trust Depositor or the Servicer which materially
impairs the investment quality of the Notes; (ii) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such exchanges
or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, or
trading in securities of the Trust Depositor or the Servicer on any
exchange or in the over-the-counter market shall have been suspended or
(iii) a general moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (iv) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or such a material adverse change
in general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public
offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
(j) With respect to the letter of Xxxxxx Xxxxxxxx LLP,
delivered to the Underwriters concurrently with the execution of this
Agreement (the "initial letter"), the Trust Depositor shall have
furnished to the Underwriters a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated the Closing
Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualifications of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date of such bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in its initial letter.
(k) The Underwriters shall receive evidence satisfactory to
them that, on or before the Closing Date, UCC-1 financing statements
have been or are being filed in each office in each jurisdiction in
which such financing statements are required to perfect the first
priority security interests created by the Sale and Servicing Agreement
reflecting the interest of the Trust Depositor in the Contract Assets
and the proceeds thereof.
(l) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any (i) downgrade, withdrawal
or qualification with respect to the rating accorded the Notes [or any
of the Trust Depositor's other debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) of the Securities Act] or
(ii) public
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announcement by any such organization that it has under surveillance
or review (other than an announcement with positive implications of
a possible upgrading), its rating of the Notes or any of the Trust
Depositor's other debt securities.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
Section 7. TERMINATION. The obligations of the Underwriters
hereunder may be terminated by the Representative, in its absolute discretion,
by notice given to and received by the Trust Depositor and the Servicer prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Section 6(i) or Section 6(l) shall have occurred.
Section 8. DEFAULTING UNDERWRITERS. (a) If, on the Closing
Date, any Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Notes by other persons satisfactory to the Trust Depositor
and the Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining non-defaulting
Underwriter shall be severally obligated to purchase the Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
Closing Date in the respective proportions which the principal amount of Notes
set forth opposite the name of each remaining non-defaulting Underwriter in
Schedule I hereto bears to the aggregate principal amount of Notes set forth
opposite the names of all the remaining non-defaulting Underwriters in Schedule
I hereto; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Notes on the Closing Date if the
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds one-eleventh of
the aggregate principal amount of the Notes to be purchased on the Closing Date,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
in total more than 110% of the principal amount of the Notes which it agreed to
purchase on the Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded and the remaining Underwriters or other
underwriters satisfactory to the Representative and the Trust Depositor do not
elect to purchase the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Trust Depositor, except
that the provisions of Sections 9 and 13 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto who, pursuant to this Section 8, purchases Notes
which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its
default. If other Underwriters are obligated or agree to purchase the
Notes of a defaulting Underwriter, either the Representative or the
Trust Depositor may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of
counsel for the Trust Depositor or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other
document or arrangement, and the Trust
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Depositor agrees to file promptly any amendment or supplement to the
Registration Statement or the Prospectus that effects any such
changes.
Section 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (i) the
Trust Depositor shall fail to tender the Notes for delivery to the Underwriters
for any reason not permitted under this Agreement or (ii) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement, the
Trust Depositor shall reimburse the Underwriters for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and the proposed
purchase of the Notes, and upon demand the Trust Depositor shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 8 by reason of the default of one or more Underwriters, the Trust
Depositor shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
Section 10. INDEMNIFICATION. (a) The Servicer and the Trust
Depositor shall, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act (collectively referred to for the purposes of this
Section 10 as the Underwriter) against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that Underwriter
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof or
supplement thereto, or in any Preliminary Prospectus or the Prospectus or in any
amendment thereof or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each Underwriter
for any legal or other expenses reasonably incurred by that Underwriter directly
in connection with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that neither the Servicer nor the Trust Depositor shall be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any Registration Statement as originally filed
or in any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto
in reliance upon and in conformity with the Underwriters' Information (as
defined in Section 10(d) herein).
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Trust Depositor, each of its directors,
each officer of the Trust Depositor who signed the Registration
Statement and each person, if any, who controls the Trust Depositor
within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 10 as the Trust Depositor), against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Trust Depositor may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment
thereof or supplement thereto, or in any Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto or (ii)
-11-
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the
Underwriters' Information (as defined in Section 10(d) herein), and
shall reimburse the Trust Depositor for any legal or other expenses
reasonably incurred by the Trust Depositor in connection with
investigating or preparing to defend or defending against or appearing
as third party witness in connection with any such loss, claim, damage
or liability (or any action in respect thereof) as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure; and, PROVIDED, FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Representative shall have
the right to employ counsel to represent jointly the Representative and
the other Underwriters (and their respective controlling persons who
may be subject to liability arising out of any claim in respect of
which indemnity may be sought under this Section 10) if, in the
reasonable judgment of the Representative, it is advisable for the
Representative and the other Underwriters and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Trust Depositor
and the Servicer. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall use
all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) The Underwriters confirm that the information (such
information, the "UNDERWRITERS' INFORMATION") set forth in the first
and third paragraphs under the caption "Plan of Distribution" in the
Prospectus is correct and constitutes the only information
-12-
furnished in writing to the Trust Depositor and the Servicer by or
on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
(e) The obligations of the Servicer, the Trust Depositor and
the Underwriters in this Section 10 are in addition to any other
liability which the Servicer, the Trust Depositor or the Underwriters,
as the case may be, may otherwise have.
Section 11. CONTRIBUTION. If the indemnification provided for
in this Section 11 is unavailable or insufficient to hold harmless an
indemnified party under Section 10(a) or (b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or any action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Servicer
and the Trust Depositor on the one hand and the Underwriters on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Servicer and the Trust Depositor on the one hand and
the Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Servicer and the Trust Depositor on the one hand and
the Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Notes purchased hereunder (before deducting expenses) received by the Trust
Depositor bear to the total underwriting discounts and commissions received by
the Underwriters with respect to the Notes purchased hereunder, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Servicer or the
Trust Depositor on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Servicer, the Trust
Depositor and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 11 were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability
referred to above in this Section 11 shall be deemed to include for purposes of
this Section 11, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim
or any action. Notwithstanding the provisions of this Section 11, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the public
were offered to the public less the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to indemnify and
contribute as provided in this Section 11 are several in proportion to their
respective underwriting obligations and not joint.
-13-
Section 12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Trust Depositor, the Servicer, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Trust
Depositor and the Servicer and their respective successors and the
controlling persons and officers and directors referred to in Sections 10 and
11 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
Section 13. EXPENSES. The Trust Depositor and the Servicer,
jointly and severally, agrees with the Underwriters to pay (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of
the Notes and any taxes payable in that connection; (ii) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (iii) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus and the Prospectus, all as
provided in this Agreement; (iv) the costs of reproducing and distributing
this Agreement and any other underwriting and selling group documents by
mail, telex or other means of communications; (v) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions
as provided in Section 5(e) and of preparing, printing and distributing Blue
Sky Memoranda and Legal Investment Surveys (including the related reasonable
and documented fees and expenses of counsel to the Underwriters); (vi) any
fees charged by rating agencies for rating the Notes; (vii) all fees and
expenses of the Indenture Trustee and its counsel; (viii) any transfer taxes
payable in connection with its sale of the Notes pursuant to this Agreement;
and (ix) all other costs and expenses incident to the performance of the
obligations of the Trust Depositor and the Servicer under this Agreement;
PROVIDED that, except as otherwise provided in this Section 13, the
Underwriters shall, pay their own costs and expenses, including, the costs
and expenses of their counsel and the expenses of advertising any offering of
the Notes made by the Underwriters.
Section 14. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Trust
Depositor, the Servicer and the Underwriters contained in this Agreement or
made by or on their behalf, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any termination r cancellation of this
Agreement or any investigation made by or on behalf of any of them or any
person controlling any of them.
Section 15. NOTICES. All communication hereunder shall be
in writing and, (i) if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at First Union Securities, Inc., Asset
Securitization Division, 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx
Xxxxxxxx, 00000-0000, Telecopy Number: (000) 000-0000; PROVIDED, HOWEVER,
that any notice to an Underwriter pursuant to Section 9(c) shall be delivered
or sent by mail, delivery or telecopy to such Underwriter at its address set
forth in its acceptance telex to the Representative, which address will be
supplied to any other party hereto by the Representative upon request; if
sent to the Trust Depositor, will be mailed, delivered or telecopied and
confirmed to them at the address of the Trust Depositor set forth in the
Registration Statement, Attention: Chief Financial Officer; and (iii) if sent
to the Servicer, will be mailed, delivered or telecopied and confirmed to
-14-
them at the address of the Servicer set forth in the Registration Statement,
Attention: Vice President and Treasurer. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The
Trust Depositor and the Servicer shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representative.
Section 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PROVISIONS OF CONFLICTS OF LAWS.
Section 17. SUBMISSION TO JURISDICTION APPOINTMENT OF AGENT
FOR SERVICE; CURRENCY INDEMNITY. (a) To the fullest extent permitted by
applicable law, each of the Trust Depositor and the Servicer irrevocably
submits to the jurisdiction of any Federal or State court in the City, County
and State of New York, United States of America, in any suit or proceeding
based on or arising under this Agreement, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. Each of the Trust Depositor and the Servicer hereby irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding. Each of the Trust Depositor and the Servicer hereby
irrevocably designates and appoints CT Corporation (the "PROCESS AGENT"), as
its authorized agent upon whom process may be served in any such suit or
proceeding, it being understood that the designation and appointment of CT
Corporation as such authorized agent shall become effective immediately
without any further action on the part of the Trust Depositor or the
Servicer. Each of the Trust Depositor and the Servicer represents to each
Underwriter that it has notified the Process Agent of such designation and
appointment and that the Process Agent has accepted the same in writing. Each
of the Trust Depositor and the Servicer hereby irrevocably authorizes and
directs the Process Agent to accept such service. Each of the Trust Depositor
and the Servicer further agrees that service of process upon the Process
Agent and written notice of said service to the Trust Depositor or the
Servicer, as the case may be, mailed by first class mail or delivered to the
Process Agent at its principal office, shall be deemed in every respect
effective service of process upon the Trust Depositor or the Servicer, as the
case may be, in any such suit or proceeding. Nothing herein shall affect the
right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law. Each of the Trust Depositor and
the Servicer agrees that a final action in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner.
(b) The obligation of the parties to make payments hereunder
is in U.S. dollars (U.S. dollars and such other currencies referred to
above being called the "OBLIGATION CURRENCY") and such obligation shall
not be discharged or satisfied by any tender or recovery pursuant to
any judgment expressed in or converted into any currency other than the
Obligation Currency or any other realization in such other currency,
whether as proceeds of set-off, security, guarantee, distributions, or
otherwise, except to the extent to which such tender, recovery or
realization shall result in the effective receipt by the party which is
to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder, and the party liable to make such
payment agrees to indemnify the party which is to receive such payment
(as an additional, separate and independent cause of action) for the
amount (if any) by which such effective receipt
-15-
shall fall short of the full amount of the Obligation Currency
expressed to be payable hereunder and such obligation to indemnify
shall not be affected by judgment being obtained for any other sums
due under this Agreement.
Section 18. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall. together constitute one and the same
instrument.
Section 19. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
Section 20. EFFECTIVENESS. This Agreement shall become
effective upon execution and delivery.
[SIGNATURE PAGE FOLLOWS]
-16-
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Trust Depositor, whereupon this letter
and your acceptance shall become a binding agreement among the Trust Depositor,
the Servicer and the several Underwriters.
Very truly yours,
XXXXXX FUNDING CORPORATION
By:
-----------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
-----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION SECURITIES, INC., as
Representative of the Underwriters
named in Section II hereto
By:
-------------------------------
Name:
Title:
SCHEDULE I
Date of Underwriting Agreement: December [__], 1999
Underwriters: First Union Securities, Inc.
[________________]
[________________]
Representative and Address: First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Title, Purchase Price and Description of Notes:
CLASS A-1 NOTES
---------------
Title: $[___________] [___]% Class A-1
Receivable-Backed Notes, Series 1999-2
Price to public: $[___________]
Purchase price: $[___________]
Underwriting discount: $[___________]
Distribution Dates: The [__] calendar day of each month (if such
day is not a Business Day, then next
succeeding Business Day), commencing January
[__], 2000
Maturity: [________] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
CLASS A-2 NOTES
---------------
Title: $[__________] [___]% Class A-2
Receivable-Backed Notes, Series 1999-2
Price to public: $[__________]
Purchase price: $[__________]
Underwriting discount: $[__________]
Distribution Dates: The [___] calendar day of each month (if
such day is not a Business Day, then next
succeeding Business Day), commencing January
[___], 2000
Maturity: [_______] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
CLASS A-3 NOTES
---------------
Title: $[__________] [___]% Class A-3
Receivable-Backed Notes, Series 1999-2
Price to public: $[__________]
Purchase price: $[__________]
Underwriting discount: $[__________]
Distribution Dates: The [___] calendar day of each month (if
such day is not a Business Day, then next
succeeding Business Day), commencing January
[___], 2000
Maturity: [___________] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
CLASS A-4 NOTES
---------------
Title: $[__________] [___]% Class A-4
Receivable-Backed Notes, Series 1999-2
Price to public: $[__________]
Purchase price: $[__________]
Underwriting discount: $[__________]
Distribution Dates: The [___] calendar day of each month (if
such day is not a Business Day, then next
succeeding Business Day), commencing January
[___], 2000
Maturity: [___________] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
CLASS B NOTES
-------------
Title: $[___________] [____]% Class B
Receivable-Backed Notes, Series 1999-2
Price to public: $[___________]
Purchase price: $[___________]
Underwriting discount: $[___________]
-19-
Distribution Dates: The [___] calendar day of each month (if
such day is not a Business Day, then next
succeeding Business Day), commencing January
[___], 2000
Maturity: [___________] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
CLASS C NOTES
-------------
Title: $[___________] [___]% Class C
Receivable-Backed Notes, Series 1999-2
Price to public: $[___________]
Purchase price: $[___________]
Underwriting discount: $[___________]
Distribution Dates: The [___] calendar day of each month (if
such day is not a Business Day, then next
succeeding Business Day), commencing January
[___], 2000
Maturity: [_________] Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Trust
Depositor's option if the ADCB of the
Contract Pool at such time is less than 10%
of the initial ADCB of the Contract Pool as
of the Cutoff Date.
Closing Date, Time and Location:
Date: December [__], 1999
Time: 9:00 Chicago Time
Location: Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
-20-
SCHEDULE II
UNDERWRITERS
$[___________] Principal Amount of Class A-1 Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
UNDERWRITERS
$[___________] Principal Amount of Class A-2 Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
UNDERWRITERS
$[___________] Principal Amount of Class A-3 Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
UNDERWRITERS
$[___________] Principal Amount of Class A-4 Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
UNDERWRITERS
$[___________] Principal Amount of Class B Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
UNDERWRITERS
$[___________] Principal Amount of Class C Notes to be Purchased
PRINCIPAL AMOUNT
----------------
First Union Securities, Inc. $[___________]
[______________________________] $[___________]
[______________________________] $[___________]
-22-
