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EXHIBIT 1.1
EXECUTION COPY
FIRST SIERRA HEALTHCARE EQUIPMENT CONTRACT TRUST 2000-1
$75,000,000
7.49% Asset Backed Notes, Class A-1
$99,600,000
7.77% Asset Backed Notes, Class A-2
$14,052,729
7.95% Asset Backed Notes, Class B
UNDERWRITING AGREEMENT
March 31, 2000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representative of the several Underwriters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
First Sierra Receivables III, Inc., a Delaware corporation (the
"Depositor"), and a wholly owned subsidiary of XxxxxxXxxxxx.xxx Inc., a Delaware
corporation ("XxxxxxXxxxxx.xxx"), hereby confirm their respective agreements
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and each of the other underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10), for whom Xxxxxxx Xxxxx is
acting as representative (in such capacity, the "Representative"), with respect
to the sale by the Depositor and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set forth in
Schedule A of $75,000,000 aggregate principal amount of 7.49% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), $99,600,000 aggregate principal amount
of 7.77% Asset Backed Notes, Class A-2 (the "Class A-2 Notes," and together with
the Class A-1 Notes, the "Class A Notes") and $14,052,729 aggregate principal
amount of 7.95% Asset Backed Notes, Class B (the "Class B Notes," and together
with the Class A Notes, the "Notes") of the First Sierra Healthcare Equipment
Contract Trust 2000-1 (the "Trust") under the terms and conditions contained
herein.
The Notes will be issued pursuant to an indenture, to be dated as of
March 1, 2000 (the "Indenture"), among the Trust, XxxxxxXxxxxx.xxx, as servicer
(in such capacity, the "Servicer"), and Bankers Trust Company ("Bankers Trust"),
as trustee (the "Indenture Trustee"). The Trust
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will issue to the Depositor a certificate (the "Trust Certificate," and together
with the Notes, the "Securities") pursuant to a trust agreement, to be dated as
of March 1, 2000 (the "Trust Agreement"), among the Depositor, the Servicer and
Christiana Bank & Trust Company, as owner trustee (the "Owner Trustee"). Each
Note will represent an obligation of, and the Trust Certificate will represent
an undivided interest in, the Trust. Payments in respect of the Trust
Certificate will be subordinate to payments in respect of the Notes to the
extent described in the Indenture and the Trust Agreement.
The Notes will be secured by the assets of the Trust (the "Trust
Assets") which will consist primarily of a pool of direct finance lease and
commercial loan contracts (collectively, the "Initial Contracts"), payments made
on the Contracts after March 1, 2000 (the "Initial Transfer Date"), amounts on
deposit in a pre-funding account (the "Pre-Funding Account"), a capitalized
interest account (the "Capitalized Interest Account"), a supplemental interest
reserve account (the "Supplemental Interest Reserve Account"), security
interests in the equipment or other property (the "Equipment") securing the
Contracts (including certain recoveries on the Contracts but excluding residual
proceeds, if any) and certain other property. The Trust Assets also will include
certain rights under the (i) master agreement, dated October 1, 1999, as amended
by the amendment to master agreement dated as of March 1, 2000 (the "Master
Agreement"), between Sky Financial Solutions, Inc. ("Sky"), as seller, and
XxxxxxXxxxxx.xxx, as purchaser, by which XxxxxxXxxxxx.xxx will acquire the
Contracts, (ii) reserve pool equal to 2.35% of the aggregate purchase cost of
the Contracts (the "Reserve Pool"), (iii) guaranty, dated as of December 1, 1999
(the "Guaranty"), executed by Sky Financial Group, Inc. (the "Sky Parent") in
favor of XxxxxxXxxxxx.xxx, and assigned to the Trust, (iv) letter of credit
dated December 30, 1999 issued by Sky Bank Salineville ("Issuing Bank No. 1")
and confirmed by The Northern Trust Company ("Confirming Bank No. 1") in favor
of XxxxxxXxxxxx.xxx in the amount of $10 million and transferred to the Trust as
new beneficiary thereunder, ("Letter of Credit No. 1") and (v) letter of credit
dated December 30, 1999 issued by Mid Am Bank, Toledo ("Issuing Bank No. 2" and,
together with Issuing Bank No. 1, the "Issuing Banks") and confirmed by Bank
One, N.A., Chicago ("Confirming Bank No. 2" and, together with Confirming Bank
No. 1, the Confirming Banks") in favor of XxxxxxXxxxxx.xxx in the amount of $10
million and transferred to the Trust as new beneficiary thereunder, ("Letter of
Credit No. 2" and together with Letter of Credit No. 1, the "Letters of Credit")
(the Issuing Banks and the Confirming Banks are hereinafter collectively
referred to as the "Letter of Credit Banks").
The Initial Contracts will be or previously have been sold by
XxxxxxXxxxxx.xxx to the Depositor pursuant to the lease acquisition, sale and
contribution agreement, dated as of March 1, 1999 (the "Contribution
Agreement"), between XxxxxxXxxxxx.xxx Inc., as seller (in such capacity, the
"Seller"), and the Depositor, as purchaser. The Depositor, which has previously
entered in an Investment Agreement, dated March 1, 1997, as amended and restated
by agreement dated as of March 25, 1998 (the "Investment Agreement"), among the
Depositor, as seller, XxxxxxXxxxxx.xxx, as servicer, Bankers Trust, as trustee,
and the Investors named therein, pursuant to which the Initial Contracts were
placed in warehouse trusts. On the Initial Transfer Date, the Warehouse Trusts
(as hereinafter defined) and the Depositor will sell the Initial Contracts to
the Trust pursuant to a Receivables Transfer Agreement, dated as of March 1,
2000 (the "Receivables Transfer Agreement"), among First Sierra Equipment Lease
Trust 1997-A, First Sierra Equipment Lease Trust 1997-B, First Sierra Equipment
Lease Trust 1998-E and First Sierra
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Equipment Lease Trust 1999-H (the "Warehouse Trusts") and the Depositor, as
sellers (the "Sellers"), the Investors named therein and the Trust. From time to
time during the Pre-Funding Period (as such term is defined in the Receivables
Transfer Agreement), pursuant to the Contribution Agreement, XxxxxxXxxxxx.xxx
will be obligated to sell, and the Depositor will be obligated to purchase,
additional direct finance lease and commercial loan contracts (the "Subsequent
Contracts" and, together with the Initial Contracts, the "Contracts"), which
Subsequent Contracts will be described in one or more agreements between
XxxxxxXxxxxx.xxx and the Depositor (each, a "Subsequent Contribution
Agreement"), dated as of the related date of transfer (each, a "Subsequent
Transfer Date" and together with the Initial Transfer Date, the "Transfer
Dates"). The Subsequent Contracts will in turn be sold by the Sellers to the
Trust pursuant to the Receivables Transfer Agreement and one or more agreements
among the Sellers, the Investors named therein and the Trust ("Subsequent
Transfer Agreements"). The maximum aggregate discounted contract principal
amount of Subsequent Contracts to be sold during the Pre-Funding Period by
XxxxxxXxxxxx.xxx to the Sellers and then conveyed by the Sellers to the Trust is
$17,500,000.
The Indenture, the Contribution Agreement, each Subsequent Contribution
Agreement, the Receivables Transfer Agreement, each Subsequent Transfer
Agreement, the Trust Agreement and the servicing agreement, to be dated as of
March 1, 2000 (the "Servicing Agreement"), among the Trust, the Servicer and the
Indenture Trustee, are referred to herein collectively as the "Transaction
Documents". "Collateral" shall mean the (i) Contracts, (ii) security interests
in the equipment and other property securing the Contracts (the "Equipment"),
(iii) XxxxxxXxxxxx.xxx's rights under the Guaranty and the Master Agreement,
(iv) Letters of Credit, and (v) proceeds of the Collateral described in clauses
(i) through (iv). "Trust Estate Collateral" shall mean Collateral and also shall
include all amounts on deposit in the Reserve Account, the Collection Account,
the Capitalized Interest Account, the Supplemental Interest Account, the Letter
of Credit Deposit Account and the Lockbox Account. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Trust Agreement or the Indenture, as the case may be.
The Depositor and XxxxxxXxxxxx.xxx understand that the Underwriters
propose to make a public offering of the Notes as soon as the Representative
deems advisable after this Agreement has been executed and delivered and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act").
The Depositor 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 "1933 Act"), of
Equipment Lease Backed Notes and Equipment Lease Backed Certificates (issuable
in series), which registration statement, as amended at the date hereof, has
become effective and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement meets the requirements set
forth in Rule 415(a)(1) under the 1933 Act and complies in all other material
respects with such Rule. The Depositor proposes to file with the Commission
pursuant to Rule 424(b)(2) under the 1933 Act a supplement dated March 31, 2000
to the prospectus dated March 28, 2000, relating to the Notes and the method of
distribution thereof and has previously advised the Representative of all
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further information (financial and other) with respect to the Notes to be set
forth or incorporated by reference therein. Such registration statement,
including the exhibits thereto, the documents incorporated by reference therein,
and the information, if any, deemed to be a part thereof pursuant to Rule 430A
of the 1933 Act (the "Rule 430A Information"), as amended at the date hereof, is
hereinafter called the "Registration Statement;" such prospectus dated March 28,
2000, in the form in which it will be filed with the Commission pursuant to Rule
424(b)(2) under the 1933 Act is hereinafter called the "Basic Prospectus;" such
supplement dated March 31, 2000 to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424(b)(2) of the 1933 Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the
Prospectus Supplement together are hereinafter called the "Prospectus". A
preliminary prospectus shall be deemed to refer to any prospectus that omitted
the Rule 430A Information or other information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
which is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be. References herein to "this
Agreement" shall, unless the context provides otherwise, refer to this
Underwriting Agreement.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Depositor and
XxxxxxXxxxxx.xxx. Each of the Depositor and XxxxxxXxxxxx.xxx jointly and
severally represents and warrants to each of the Underwriters as of the date
hereof and as of the Closing Time referred to in Section 2(b) and agrees with
the each Underwriter as follows:
(i) Compliance with Registration Requirements. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act (or, if issued, such order has been
lifted) and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Depositor or XxxxxxXxxxxx.xxx, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
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As of the date hereof, when the Registration Statement became
effective, when the Prospectus is first filed pursuant to Rule
424(b)(2) under the 1933 Act, when, prior to Closing Time, 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 Time, (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 requirements of the 1933
Act and the 1933 Act Regulations and the Trust Indenture Act of 1939
Act, as amended (the "1939 Act"), if any, and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act Regulations"), (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 the light of the circumstances under which
they were made, not misleading; provided, however, that neither the
Depositor nor XxxxxxXxxxxx.xxx makes no representation or warranty 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 made in
reliance upon and in conformity with information furnished to the
Depositor or XxxxxxXxxxxx.xxx in writing by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or
Prospectus. The Depositor will file with the Commission within 15 days
of issuance of the Notes, a report on Form 8-K setting forth specific
information concerning the Notes and the Transaction Documents.
Each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering was identical
in all material respects to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Financial Statements. The financial statements of
XxxxxxXxxxxx.xxx and its consolidated subsidiaries which include
XxxxxxXxxxxx.xxx and the Depositor (the "Sierra Group"), dated December
31, 1999, December 31, 1998 and December 31, 1997 provided to the
Representative, together with the related schedules and notes
(collectively, the "Financial Statements"), present fairly the
financial position of the Sierra Group at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Sierra Group for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved.
(iii) Independent Accountants. Xxxxxx Xxxxxxxx LLP, who
certified the audited portion of the Financial Statements are
independent public accountants with respect to XxxxxxXxxxxx.xxx and its
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
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(iv) No Material Adverse Change. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the
Depositor or XxxxxxXxxxxx.xxx whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by
Depositor or XxxxxxXxxxxx.xxx, other than those in the ordinary course
of business, which are material with respect to such entity and (C)
there has been no material adverse change in the Financial Statements.
(v) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by the Depositor and
XxxxxxXxxxxx.xxx.
(vi) Authorization of Transaction Documents; Qualification
of Indenture. As of the Closing Time, each of the Transaction Documents
to which any of the Depositor, XxxxxxXxxxxx.xxx or the Trust is a party
has been duly authorized, executed and delivered by each such entity,
and, assuming the due authorization, execution and delivery thereof by
the other parties thereto, will constitute the legal, valid and binding
agreement of the Depositor, XxxxxxXxxxxx.xxx or the Trust, as the case
may be, enforceable against such persons in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Indenture has been qualified under
the 1939 Act.
(vii) Issuance of the Notes. The Notes have been duly
authorized and, at the Closing Time, when executed, authenticated,
issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in
this Agreement, will constitute valid and binding obligations of the
Trust, enforceable against the Trust in accordance with their terms,
except as the enforcement may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be in the form contemplated
by the Indenture and entitled to the benefits of the Indenture and
Trust Agreement.
(viii) Issuance of Trust Certificate. The Trust Certificate
has been duly authorized and, at the Closing Time, will have been duly
executed and, when authenticated, issued and delivered in the manner
provided for in the Trust Agreement and delivered to the Depositor,
will constitute the valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws or affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of,
the Trust Agreement.
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(ix) Description of Securities and Transaction Documents.
The Securities and each of the Transaction Documents conform in all
material respects to the descriptions thereof and the statements
relating thereto contained in the Prospectus.
(x) No Investment Company Registration. None of the
Depositor, XxxxxxXxxxxx.xxx or the Trust is now or, as a result of the
transactions contemplated by this Agreement, will be, required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(xi) The Contracts. At or prior to the Closing Time, the
Contracts 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.
(xii) Use of Proceeds. The Depositor will cause the Trust to
use the net proceeds of the Notes as described in the Base Prospectus
under the caption "Use of Proceeds."
(xiii) Incorporation of Representations and Warranties. The
representations and warranties of each of XxxxxxXxxxxx.xxx and the
Depositor in each of the Transaction Documents to which they are
parties are true and correct in all material respects and are hereby
restated and incorporated by reference herein with the same effect as
if set forth in full herein and as of each Subsequent Transfer Date the
representations and warranties of each of XxxxxxXxxxxx.xxx and the
Depositor in each of the Transaction Documents will be true and
correct.
(xiv) Due Organization. Each of the Depositor and
XxxxxxXxxxxx.xxx is duly organized, validly existing and in good
standing under the laws of the State of Delaware, has, or will have
prior to the Closing Time, 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 to enter into and to
perform its obligations under this Agreement, each Transaction Document
to which it is a party or by which it may be bound and the Notes and
each is duly qualified or registered 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 each of the Depositor and
XxxxxxXxxxxx.xxx, respectively or (ii) any risk whatsoever as to the
enforceability of any Contract.
(xv) Absence of Defaults and Conflicts. Neither the
Depositor nor XxxxxxXxxxxx.xxx is in violation of its organizational or
charter documents or bylaws, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it may be bound, or to which any of its properties or assets is
subject, except for violations or
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defaults that, individually or in the aggregate, have not had, and are
not reasonably expected to have, a material adverse effect on their
collective condition, financial or otherwise, earnings, business
affairs or business prospects; the execution, delivery and performance
by each of the Depositor or XxxxxxXxxxxx.xxx of this Agreement, each
Transaction Document to which it is a party and the Securities, the
consummation of the transactions contemplated herein and therein or in
the Prospectus and compliance by each of them with its obligations
hereunder and thereunder have been, or will be prior to the Closing
Time, duly and validly authorized by all necessary action (corporate or
otherwise) and will not conflict with or constitute a breach of, a
default under, or result in the creation or imposition of any Lien
(except as permitted by the Transaction Documents) upon any of its
property or assets pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it may be a party,
by which it may be bound or to which any of its properties or assets is
subject, except for conflicts, breaches, defaults or Liens that,
individually or in the aggregate, will not have a material adverse
effect on their collective condition, financial or otherwise, earnings,
business affairs or business prospects, nor will such action result in
any violation of the provisions of the entity's charter or
organizational documents, bylaws, or any applicable law, administrative
regulation or administrative or court decree.
(xvi) Absence of Proceedings. There are no actions,
proceedings or investigations pending, or, to the knowledge of each of
the Depositor and XxxxxxXxxxxx.xxx, threatened, before any court,
governmental agency or body or other tribunal (i) asserting the
invalidity of this Agreement, the Notes or the Transaction Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation
of any of the transactions contemplated by this Agreement or the
Transaction Documents, (iii) which may, individually or in the
aggregate, materially and adversely affect the performance by either
the Depositor or XxxxxxXxxxxx.xxx of its obligations under, or the
validity or enforceability of, this Agreement, the Notes or the
Transaction Documents, or (iv) which may affect adversely the federal
income tax attributes of the Notes as described in the Prospectus.
(xvii) Absence of Further Requirements. No authorization,
approval or consent of any court, governmental authority or agency or
any other person is necessary in connection with (A) the issuance of
the Securities or the offering and sale of the Notes, (B) the
execution, delivery and performance by the Depositor or
XxxxxxXxxxxx.xxx of this Agreement or any Transaction Document to which
it is a party or (C) the consummation by the Depositor or
XxxxxxXxxxxx.xxx of the transactions contemplated hereby or thereby,
except such authorizations, approvals or consents as have been obtained
and are in full force and effect as of the Closing Time.
(xviii) Possession of Licenses and Permits. Each of the
Depositor and XxxxxxXxxxxx.xxx possesses all material certificates,
authorities, licenses and permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies as are necessary to
conduct the business now operated by it; all such certificates,
authorities, licenses and permits are valid and in full force and
effect except where such invalidity or failure to be in full force and
effect does not have a material adverse effect on its
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condition, financial or otherwise, earnings, business affairs or
business prospects; and neither the Depositor or XxxxxxXxxxxx.xxx has
received notice of any proceedings relating to the revocation or
modification of any such certificate, authority, license or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect its
condition, financial or otherwise, earnings, business affairs or
business prospects or its ability to perform its respective obligations
under each Transaction Document to which it is a party or by which it
may be bound.
(xix) Absence of Business with Cuba. Neither
XxxxxxXxxxxx.xxx nor Depositor conducts business or has Affiliates who
conduct business in Cuba or with the government of Cuba within the
meaning of Section 517.075 of the Florida Securities and Investors
Protection Act or Regulation Section 3E-900.001 promulgated thereunder.
(xx) Payment of Taxes, Fees, Etc. Any taxes, fees and other
governmental charges in connection with the execution and delivery of
this Agreement or the Transaction Documents, or the execution and
issuance of the Notes have been or will be paid at or prior to the
Closing Time.
(xxi) Authorization of Master Agreement. As of the Closing
Time, the Master Agreement has been duly authorized, executed and
delivered by XxxxxxXxxxxx.xxx, and assuming the due authorization,
execution and delivery thereof by the other parties thereto, will
constitute the legal, valid and binding agreement of XxxxxxXxxxxx.xxx,
enforceable against XxxxxxXxxxxx.xxx in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xxii) Principal Place of Business. The principal place of
business of XxxxxxXxxxxx.xxx and the Depositor is 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000. The principal place of business of each of the
Warehouse Trust's is c/o Bankers Trust Company, Four Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 except for First Sierra Equipment
Contract Trust 1999-H, the principal place of business which is c/o
Christiana Bank and Trust Company, 0000 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
(b) Officer's Certificates. Any certificate respecting the Securities
signed by any officer of the Depositor, XxxxxxXxxxxx.xxx or any of their
respective Affiliates and delivered at the Closing Time to the Underwriters or
to counsel to the Underwriters shall be deemed a representation and warranty by
the Depositor, XxxxxxXxxxxx.xxx or such Affiliate, as the case may be, to the
Underwriters as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) Notes. On the basis of and in reliance on the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the
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Depositor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Depositor, the aggregate principal amount of each Class of Notes set forth in
Schedule A opposite the name of such Underwriter (plus any additional principal
amount of Notes which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10) at a purchase price equal to the following
percentages of the aggregate initial principal balances thereof, in the case of
(i) the Class A-1 Notes, 7.49%, (ii) the Class A-2 Notes, 7.77% and (iii) the
Class B Notes, 7.95%.
(b) Payment. Payment of the purchase price for, and delivery of, the
Notes shall be made at the offices of Xxxxx Xxxxxxxxxx, 1301 Avenue of the
Americas, New York, New York or at such other place as shall be agreed upon by
the Representative, the Depositor and XxxxxxXxxxxx.xxx, at 10:00 A.M. (New York
time) on April 11, 2000, or such other time not later than ten business days
after such date as shall be agreed upon by the Representative, the Depositor and
XxxxxxXxxxxx.xxx (such date and time of payment and delivery being called the
"Closing Time"). Pursuant to Rule 15c6-1(d) under the 1934 Act, the Depositor,
XxxxxxXxxxxx.xxx and the Representative have agreed that the Closing Time will
be not less than five business days following the date hereof.
Payment shall be made to the Depositor by wire transfer of immediately
available funds to a bank account designated by the Depositor, against delivery
to the Representative for the respective accounts of the Underwriters of
certificates for the Notes to be purchased by them (which delivery shall be made
through the facilities of the DTC). It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Notes which it has agreed
to purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Notes to be purchased by any Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Book Entry Registration. Each Class of Notes will initially be
represented by one or more certificates registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC"), the Euroclear System
("Euroclear") or Clearstream Banking ("Clearstream"). The interests of
beneficial owners of each Class of Notes will be represented by book entries on
the records of DTC, Euroclear, Clearstream and participating members thereof.
Definitive certificates evidencing the Notes will be available only under the
limited circumstances specified in the Indenture. Certificates for the Notes
shall be made available for examination and packaging by the Underwriters in The
City of New York not later than 10:00 A.M. (New York time) on the last business
day prior to the Closing Time.
Section 3. Covenants of the Depositor and XxxxxxXxxxxx.xxx. The
Depositor and XxxxxxXxxxxx.xxx jointly and severally covenant with the each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Depositor, subject to Section 3(b), will comply with the requirements of Rule
430A and will notify the Representative and its counsel immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to
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the Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Depositor will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such Prospectus. The Depositor will
notify the Representative promptly of any filing pursuant to Rule 424(b). The
Depositor will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Depositor will not file any amendment,
supplement or revision to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus after the date
hereof and prior to the Closing Time unless the Depositor has furnished to the
Representative 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 the Representative reasonably objects, unless the Depositor
determines that such filing is required by law.
(c) Delivery of Registration Statement. The Depositor has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be substantially identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectus. The Depositor has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Depositor hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Depositor will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
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(e) Continued Compliance with Securities Laws. The Depositor will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and rules
and regulations of the Commission promulgated under the 1934 Act so as to permit
the completion of the distribution of the Notes as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act and the 1933 Act Regulations to be delivered in connection with
sales of the Notes, any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or for
the Depositor, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Depositor will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Depositor will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request. Neither the consent of the Representative to, nor the
delivery by any Underwriter of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(f) Blue Sky Qualifications. The Depositor will use its reasonable
efforts, in cooperation with the Underwriters, to qualify the Notes for offering
and sale under the applicable securities laws of such states and other
jurisdictions as may be reasonably requested by the Representative and to
maintain such qualifications in effect for a period of not less than one year
from the effective date of the Registration Statement.
(g) Rule 158. As soon as practicable, but not later than 16 months
after the effective date of the Underwriting Agreement, the Depositor will cause
the Trust to make generally available to Noteholders an earnings statement of
the Trust covering a period of at least 12 months beginning after the effective
date of the Underwriting Agreement which will satisfy the provisions of Section
11(a) of the 1933 Act and, at the option of the Depositor, will satisfy the
requirements of Rule 158 under the 1933 Act.
(h) Use of Proceeds. The Depositor shall cause the Trust to use the net
proceeds received by it from the sale of the Notes in the manner specified in
the Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Notes. For a period of 30 days from the date
hereof, none of XxxxxxXxxxxx.xxx, the Depositor or any of their respective
Affiliates will, without the prior written consent of the Representative,
directly or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized securities
similar to the Notes other than private warehouse funding arrangements supported
by direct finance lease and commercial loan contracts.
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(j) Reporting Requirements. The Depositor will file with the Commission
such report on Form SR as may be required pursuant to Rule 463 under the 1933
Act and, during the period when the Prospectus is required to be delivered under
the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act.
(k) Reports, Statements and Certificates. The Depositor and
XxxxxxXxxxxx.xxx agree that, so long as any Notes are outstanding, the Depositor
or XxxxxxXxxxxx.xxx, as the case may be, deliver or cause to be delivered to the
Representative, as soon as copies become available, copies of (i) all documents
required to be delivered to the Noteholders under the Transaction Documents,
(ii) each periodic report required to be filed by the Depositor with the
Commission pursuant to the 1934 Act relating to the Notes or any order of the
Commission thereunder and (iii) such other information with respect to the
Securities concerning XxxxxxXxxxxx.xxx, the Depositor or the Trust as the
Representative may reasonably request from time to time.
Section 4. Payment of Expenses.
(a) Expenses. The Depositor shall pay all of its own expenses incident
to the performance of its obligations under this Agreement, including without
limitation (i) the preparation, printing and filing of the Registration
Statement (including financial statements, exhibits and documents incorporated
by reference) as originally filed and of each amendment thereto, (ii) the
preparation, reproduction and delivery to the Underwriters of this Agreement,
each Transaction Document and such other documents as may be required in
connection with the issuance of the Securities or the offering, purchase, sale
or delivery of the Notes, (iii) the preparation, issuance and delivery of the
certificates for the Notes to the Underwriters, (iv) the fees and expenses of
the counsel, accountants and other advisors of the Depositor, XxxxxxXxxxxx.xxx
and their respective Affiliates in connection with the transactions contemplated
by this Agreement, (v) the qualification of the Notes under state securities
laws in accordance with the provisions of Section 3(f), including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith, (vi) the fees and expenses of the Indenture Trustee and
the Trustee, including the reasonable fees and disbursements of their respective
counsel in connection with the transactions contemplated by this Agreement and
(vii) any fees payable in connection with the rating of the Notes.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section
9(a)(i), the Depositor shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters are subject to the accuracy of the
representations and warranties of the Depositor and XxxxxxXxxxxx.xxx contained
in Section 1 or in certificates of any officer of the Depositor,
XxxxxxXxxxxx.xxx or any of their respective Affiliates delivered pursuant to the
provisions hereof, to the performance by the Depositor and XxxxxxXxxxxx.xxx of
their covenants and other obligations hereunder and to the following additional
conditions:
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(a) Effectiveness of Registration Statement. The Registration Statement
shall have become effective and, at the Closing Time, no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission (or,
if issued, such stop order shall have been lifted), and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel for the Underwriters. The Prospectus
shall have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) Accountants' Comfort Letter. At the Closing Time, the
Representative, XxxxxxXxxxxx.xxx and the Depositor shall have received from
Xxxxxx Xxxxxxxx LLP a letter or letters dated as of the date of the Prospectus,
in form and substance as previously agreed to by the Representative and
otherwise satisfactory in form and substance to the Representative and counsel
for the Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters," with respect to certain
financial, statistical and other information contained in the Prospectus.
(c) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse changes in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Depositor, XxxxxxXxxxxx.xxx and their respective
Affiliates, whether or not arising in the ordinary course of business, and the
Representative shall have received (i) certificates of authorized officers of
the Depositor and XxxxxxXxxxxx.xxx, dated as of the Closing Time, to the effect
that (A) there has been no such material adverse change, (B) the representations
and warranties in Section 1 are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (C) each of the
Depositor and XxxxxxXxxxxx.xxx has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time and (D) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission (or, if a
stop order has been issued, such order has been subsequently lifted) and (ii) a
certificate of authorized officers of Sky, dated as of the Closing Time, as to
(A) the due authorization, execution and delivery of the Master Agreement, (B)
the enforceability of the Master Agreement and (C) the due organization and
valid existence of Sky and the absence of proceedings in relation to Sky which
could have a material adverse affect on Sky's ability to perform its obligations
under the Master Agreement.
(d) Opinion of Special Counsel for the Depositor. At the Closing Time,
the Representative shall have received the favorable opinion of Xxxxx Xxxxxxxxxx
LLP, counsel to the Depositor, dated the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware; the Depositor has corporate power and authority to carry
on its business as described in the Prospectus and
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to enter into and perform its obligations under this Agreement and each
Transaction Document to which it is a party and is duly qualified as a
foreign corporation to transact business in each state necessary to
enable it to perform its obligations and is in good standing in such
states.
(ii) The Notes have been duly and validly authorized and,
when executed, issued, authenticated and delivered pursuant to the
Indenture, and delivered against payment of the consideration specified
in this Agreement, will be duly and validly issued and outstanding,
constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, and will be entitled
to the benefits of the Indenture. The Trust Certificate has been duly
and validly authorized and, when executed, issued, authenticated and
delivered pursuant to the Trust Agreement, and delivered to the
Depositor, will be duly and validly issued and outstanding and entitled
to the benefits of the Trust Agreement.
(iii) Each of the Indenture, the Contribution Agreement, the
Receivables Transfer Agreement, the Trust Agreement and the Servicing
Agreement, and assuming no change in law or factual circumstances, any
Subsequent Contribution Agreement or Subsequent Transfer Agreement, has
been duly authorized, executed and delivered by the Depositor and
assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitute the legal, valid and binding
agreement of the Depositor enforceable against the Depositor in
accordance with its terms (in each case, subject to certain generally
applicable limitations set forth in such opinion).
(iv) To such counsel's knowledge, there is no action, suit,
proceeding, inquiry or investigation pending or threatened to which the
Depositor is a party or to which any of its properties or assets is
subject, before or brought by any court or governmental agency or body,
(i) asserting the invalidity of this Agreement, any Transaction
Document or the Notes, (ii) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by
this Agreement or any Transaction Document or (iii) that would, if
determined adversely to the Depositor, materially and adversely affect
the performance by the Depositor of its respective obligations under,
or the validity or enforceability of, this Agreement or any Transaction
Document to which it is a party or the Notes, or materially adversely
affect its condition or operations.
(v) The statements in the Prospectus under the captions
"Summary," "Risk Factors," "Description of the Notes" and "Description
of the Transaction Documents," insofar as such statements purport to
summarize certain terms or provisions of the Notes, the Transaction
Documents and the Master Agreement, provide a fair summary of such
provisions and the statements in the Prospectus under the captions
"Risk Factors," "Description of the Transaction Documents," "Material
Federal Income Tax Considerations," "State and Local Tax Consequences"
and "ERISA Considerations," to the extent that they constitute matters
of law, summaries of legal matters, documents or proceedings or legal
conclusions relating to U.S. federal law or the laws of the States of
Delaware or New York have been prepared or reviewed by such counsel and
provide a fair summary in all material respects.
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(vi) To such counsel's knowledge, no order, consent,
authorization or approval of any Delaware, New York or federal court or
governmental authority or agency applicable to the Depositor, is
required in connection with the issuance of the Notes or the offering
or the sale of the Notes, except those authorizations, approvals,
consents and orders which have previously been obtained and are in full
force and effect as of the Closing Time.
(vii) None of (A) the execution, delivery and performance by
the Depositor of this Agreement or any Transaction Document to which
such entity is a party, (B) the consummation of the transactions
contemplated herein or therein by the Depositor or (C) the fulfillment
of the terms hereof or thereof by the Depositor, will conflict with,
result in a breach of or constitute a default under, or with the giving
of notice or the passage of time or both, would constitute a default
under or result in the creation or imposition of any Lien (except as
permitted by the Transaction Documents) upon any property or assets of
such entity pursuant to the terms of (i) the charter or bylaws of such
entity, (ii) to such counsel's knowledge and except as otherwise
provided in the Transaction Documents, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which such
entity is a party or by which it may be bound, or to which any of the
properties or assets of such entity is subject or (iii) to such
counsel's knowledge, any applicable law, statute or regulation or any
judgment, order or decree applicable to such entity of any court,
regulatory body or other governmental instrumentality having
jurisdiction over such entity; excepting, in the case of clauses (ii)
and (iii) above, defaults, breaches or violations that do not, in the
aggregate, have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs or business
prospects of such entity or a material adverse effect in the ability of
such entity to perform its obligations under any Transaction Document
to which it is a party.
(viii) Neither the Depositor nor the Trust is required to be
registered as an "investment company" under the 1940 Act.
(ix) The Indenture has been qualified under the 1939 Act.
(x) To such counsel's knowledge, the Depositor possesses
such certificates, authorities, licenses, permits and other
governmental authorizations necessary to conduct the business now
operated by it, and has not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority,
license or permit that, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Depositor or
the ability of the Depositor to perform its obligations under the
Transaction Documents to which it is a party.
(xi) Nothing has come to such counsel's attention that would
lead it to believe that the Registration Statement or any amendment
thereto, including any 430A Information (other than the financial
statements and schedules and other financial data
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included therein, as to which no opinion need be expressed), at the
time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto (other than the financial
statements and schedules and other financial data included therein, as
to which no opinion need be expressed), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was
issued or at the Closing Time, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xii) All descriptions in the Registration Statement of the
Transaction Documents, the Master Agreement or other contracts or
documents filed as exhibits to the Registration Statement to which the
Depositor, XxxxxxXxxxxx.xxx or its Affiliates is a party are accurate
in all material respects; to the best of such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described
or referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(xiii) The Registration Statement has been declared
effective under the 1933 Act; any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(xiv) The Registration Statement, the Prospectus and each
amendment or supplement to the Registration Statement or the
Prospectus, as of their respective effective or issue dates (other than
the financial statements and schedules and other financial data
included therein, and the Trustee's Statement of Eligibility on Form
T-1, as to which no opinion need be expressed), complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(xv) For federal income tax purposes, the Notes will be
considered debt, the Trust will not be an association taxable as a
corporation and the Trust will not be a publicly traded partnership
taxable as a corporation.
(xvi) Assuming no change in law or factual circumstances, on
each Transfer Date, the Contribution Agreement and each Subsequent
Contribution Agreement either (i) transfers an ownership interest in
the related Collateral being transferred on such Transfer Date by
XxxxxxXxxxxx.xxx to the Sellers or (ii) creates a valid security
interest in the related Collateral in favor of the Sellers as security
for the obligations of XxxxxxXxxxxx.xxx set forth in the Contribution
Agreement.
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(xvii) Assuming no change in the law or the factual
circumstances, on each Transfer Date, the Receivables Transfer
Agreement and each related Subsequent Transfer Agreement either (i)
transfers an ownership interest in the related Collateral being
transferred on such Transfer Date by the Sellers to the Trust or (ii)
creates a valid security interest in the related Collateral, in favor
of the Trust as security for the obligations of the Sellers set forth
in the Receivables Transfer Agreement.
(xviii) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the Collateral as
security for the Secured Obligations.
(xix) The Contracts are chattel paper as defined in the UCC.
(xx) The Guaranty is not required to be registered as a
security under the 1933 Act.
(xxi) The Letters of Credit are not required to be
registered under the 0000 Xxx.
(xxii) The Receivables Transfer Agreement has been duly
authorized, executed and delivered by the Sellers, and assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute the legal, valid and binding agreement of the
Sellers, enforceable against such parties, in accordance with its
terms.
(xxiii) To the extent that the UCC as in effect in the State
of New York (the "New York UCC") is applicable, following the filing of
the financing statement naming the Trust, as secured party, and the
Warehouse Trusts, as debtors (the "New York Trust Financing
Statement"), assuming no change in the law or factual circumstances:
(a) on each Transfer Date, the security interest in favor of the Trust
in the Collateral being transferred on such Transfer Date will be
perfected as of the related Transfer Date and (ii) before giving effect
to the pledge of such collateral by the Trust to the Indenture Trustee,
no other security interest in such Collateral will be equal to or prior
to such security interest. The New York Trust Financing Statement is in
appropriate form for filing under the New York UCC.
(e) Opinion of Counsel for XxxxxxXxxxxx.xxx. At the Closing Time, the
Representative shall have received the favorable opinion of Xxxxxx & Xxxxxx,
counsel to the XxxxxxXxxxxx.xxx, dated the Closing Time and in form and
substance satisfactory to counsel for the Underwriters, substantially to the
effect that:
(i) XxxxxxXxxxxx.xxx has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware; XxxxxxXxxxxx.xxx has corporate power and authority to
carry on its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement, the Master Agreement
and each Transaction Document to which it is a party and is duly
qualified as a foreign corporation to transact business in each state
necessary to enable it to perform its obligations and is in good
standing in such states.
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(ii) Each of the Master Agreement and the Transaction
Document to which XxxxxxXxxxxx.xxx is a party has been duly authorized,
executed and delivered by XxxxxxXxxxxx.xxx and assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute the legal, valid and binding agreement of
XxxxxxXxxxxx.xxx enforceable against XxxxxxXxxxxx.xxx in accordance
with its terms (in each case, subject to certain generally applicable
limitations set forth in such opinion).
(iii) To such counsel's knowledge, there is no action, suit,
proceeding, inquiry or investigation pending or threatened, to which
XxxxxxXxxxxx.xxx is a party or to which any of its properties or assets
is subject, before or brought by any court or governmental agency or
body, (i) asserting the invalidity of this Agreement, the Master
Agreement, any Transaction Document or the Notes, (ii) seeking to
prevent the issuance of the Notes, or the consummation of any of the
transactions contemplated by this Agreement, the Master Agreement or
any Transaction Document or (iii) that would, if determined adversely
to XxxxxxXxxxxx.xxx, materially and adversely affect the performance by
XxxxxxXxxxxx.xxx of its obligations under, or the validity or
enforceability of, this Agreement, the Master Agreement or any
Transaction Document to which it is a party or the Notes, or materially
adversely affect its condition or operations.
(iv) To such counsel's knowledge, no order, consent,
authorization or approval of any Delaware, New York or federal court or
governmental authority or agency applicable to XxxxxxXxxxxx.xxx, is
required in connection with the issuance of the Notes or the offering
or the sale of the Notes, except those authorizations, approvals,
consents and orders which have previously been obtained and are in full
force and effect as of the Closing Time.
(v) None of (A) the execution, delivery and performance by
XxxxxxXxxxxx.xxx of this Agreement or by XxxxxxXxxxxx.xxx of the Master
Agreement or any Transaction Document to which such entity is a party,
(B) the consummation of the transactions contemplated herein or therein
by XxxxxxXxxxxx.xxx or (C) the fulfillment of the terms hereof or
thereof by XxxxxxXxxxxx.xxx, will conflict with, result in a breach of
or constitute a default under, or with the giving of notice or the
passage of time or both, would constitute a default under or result in
the creation or imposition of any Lien (except as permitted by the
Master Agreement or the Transaction Documents) upon any property or
assets of such entity pursuant to the terms of (i) the charter or
bylaws of XxxxxxXxxxxx.xxx, (ii) to such counsel's knowledge and except
as otherwise provided in the Master Agreement or the Transaction
Documents, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which such entity is a party or by which
it may be bound, or to which any of the properties or assets of such
entity is subject or (iii) to such counsel's knowledge, any applicable
law, statute or regulation or any judgment, order or decree applicable
to such entity of any court, regulatory body or other governmental
instrumentality having jurisdiction over such entity; excepting, in the
case of clauses (ii) and (iii) above, defaults, breaches or violations
that do not, in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of such entity or a material adverse
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effect in the ability of such entity to perform its obligations under
the Master Agreement or any Transaction Document to which it is a
party, as the case may be.
(vi) XxxxxxXxxxxx.xxx is not required to be registered as an
"investment company" under the 1940 Act.
(vii) To such counsel's knowledge, XxxxxxXxxxxx.xxx
possesses such certificates, authorities, licenses, permits and other
governmental authorizations necessary to conduct the business now
operated by it, and none of such entities has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority, license or permit that, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of such entity or the ability of such entity to perform its obligations
under the Master Agreement or any Transaction Document to which it is a
party.
(f) Opinion of Special Delaware Counsel to the Depositor and
XxxxxxXxxxxx.xxx. At the Closing Time, the Representative shall have received
the favorable opinion of Stradley, Ronon, Xxxxxxx & Young LLP special Delaware
counsel to the Depositor and XxxxxxXxxxxx.xxx, dated the Closing Time and in
form and substance satisfactory to Counsel for the Underwriters, substantially
to the effect that:
(i) The Trust has been duly formed and is validly existing
in good standing as a common law trust under the laws of the State of
Delaware.
(ii) Under Delaware law and its related formation documents,
the Trust has all necessary power and authority to execute and deliver,
and to perform its obligations under, the Transaction Documents to
which it is a party.
(iii) Under Delaware law and its related formation
documents, the execution and delivery by the Trust of the Transaction
Documents to which it is a party, and the performance by it thereunder,
have been duly authorized by all necessary business trust action on the
part of the Trust.
(iv) The Trust Agreement is a legal, valid and binding
agreement of the parties thereto, enforceable against such parties, in
accordance with its terms.
(v) To the extent that the UCC as in effect in the State of
Delaware (the "Delaware UCC") is applicable, following the filing of
the financing statement naming the Trust, as secured party, and the
Warehouse Trusts, as debtors (the "Delaware Trust Financing
Statement"), assuming no change in the law or factual circumstances:
(a) on each Transfer Date, the security interest in favor of the Trust
in the Collateral being transferred on such Transfer Date will be
perfected as of the related Transfer Date and (ii) before giving effect
to the pledge of such collateral by the Trust to the Indenture Trustee,
no other security interest in such Collateral will be equal to or prior
to such security
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interest. The Delaware Seller Financing Statement is in appropriate
form for filing under the Delaware UCC.
(vi) To the extent that the Delaware UCC is applicable
(without regard to conflict of laws principles), and assuming that the
security interest created by the Indenture in the Trust Estate
Collateral has been duly created and has attached, following the filing
of the financing statement naming the Indenture Trustee, as secured
party, and the Trust, as debtor (the "Delaware Indenture Trustee
Financing Statement"), the Indenture Trustee will have a perfected
security interest therein, and such security interest will be prior to
any other security interest therein. The Delaware Indenture Trustee
Financing Statement is in appropriate form for filing under the
Delaware UCC.
(g) Opinion of Special Bankruptcy Counsel to the Depositor and
XxxxxxXxxxxx.xxx. At the Closing Time, the Representative shall have received
the favorable opinion of Xxxxx Xxxxxxxxxx LLP, special bankruptcy counsel to the
Depositor and XxxxxxXxxxxx.xxx, dated the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, with respect to certain true sale
and bankruptcy matters, including an opinion that a trustee in bankruptcy of
Sky, or Sky as debtor in possession would not prevail in an action (i) to
enforce the automatic stay of Section 362(a) of the Bankruptcy Code to prevent
payment of the Contracts and the proceeds to XxxxxxXxxxxx.xxx or (ii) compel the
turnover of the contracts and the proceeds by XxxxxxXxxxxx.xxx, as property of
Sky's estate, under Section 541 or 542 of the Bankruptcy Code.
(h) Opinion of Special Texas Counsel to the Depositor and
XxxxxxXxxxxx.xxx. At the Closing Time, the Representative shall have received
the favorable opinion of Xxxxxx & Xxxxxx, special Texas counsel to the Depositor
and XxxxxxXxxxxx.xxx, dated the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) To the extent that the UCC as in effect in the State of
Texas (the "Texas UCC") is applicable, following the filing of the
financing statement naming Sellers, as secured parties, and
XxxxxxXxxxxx.xxx, as debtor (the "Texas Sellers Financing Statement"),
assuming no change in the law or the factual circumstances: (i) on each
Transfer Date, the security interest in favor of the Sellers in the
Collateral being transferred on such Transfer Date will be perfected as
of the related Transfer Date and (ii) before giving effect to the
transfer of the Collateral by the Sellers to the Trust, no other
security interest in such Collateral will be equal or prior to such
security interest. The Texas Sellers Financing Statement is in
appropriate form for filing in the relevant office under the Texas UCC.
(ii) To the extent that the Texas UCC is applicable,
following the filing of the financing statement naming the Trust, as
secured party, and the Sellers, as debtors (the "Texas Trust Financing
Statement"), assuming no change in the law or the factual
circumstances: (i) on each Transfer Date, the security interest in
favor of the Trust in the Collateral being transferred on such Transfer
Date will be perfected as of the related Transfer Date and (ii) before
giving effect to the pledge of such collateral by the Trust to the
Indenture Trustee, no other security interest in the Collateral being
transferred on such
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Transfer Date will be equal or prior to such security interest. The
Texas Trust Financing Statement is in appropriate form for filing in
the relevant office under the Texas UCC.
(iii) Under Texas law, the Notes will be considered debt and
the Trust will not, for Texas income tax purposes, be classified as an
association taxable as a corporation, and Noteholders who are not
residents of or otherwise subject to tax in Texas will not, solely by
reason of their acquisition of an interest in any Class of Notes, be
subject to Texas income, franchise, excise or similar taxes with
respect to interest on any Class of Notes or with respect to any of the
other Trust property.
(i) Opinion of Counsel for Indenture Trustee. At the Closing Time, the
Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxx
LLP, counsel to Banker's Trust, as Indenture Trustee and Trust Agent, dated the
Closing Time and in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) Banker's Trust has been duly incorporated and is validly
existing as a national banking corporation, in good standing under the
federal laws of the United States of America with full power and
authority (corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform
its obligations as Indenture Trustee under each Transaction Document to
which Banker's Trust is a party.
(ii) Each Transaction Document to which Banker's Trust is a
party has been duly authorized, executed and delivered by Banker's
Trust and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, will constitute a legal, valid
and binding obligation of Banker's Trust enforceable in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(iii) The Notes have been duly executed, authenticated and
delivered by Banker's Trust, as Indenture Trustee.
(iv) Neither the execution nor delivery by Banker's Trust of
each Transaction Document to which it is a party nor the consummation
of any of the transactions by Banker's Trust contemplated thereby
require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to,
any governmental authority or agency under any existing federal or
state law governing the banking or trust powers of Banker's Trust.
(v) The execution and delivery of each Transaction Document
to which Banker's Trust is a party and the performance by Banker's
Trust of its terms do not conflict with or result in a violation of (A)
any federal or state law or regulation governing the banking or trust
powers of Banker's Trust, (B) the Articles of Association or Bylaws of
Banker's Trust or (C) to the best knowledge of such counsel, any
indenture,
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lease or material agreement to which Banker's Trust is a party or to
which its assets are subject.
(j) Opinion of Counsel for Owner Trustee. At the Closing Time, the
Representative shall have received the favorable opinion of Stradley, Ronon,
Xxxxxxx & Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Time and
satisfactory in form and substance to counsel for the Underwriters,
substantially to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a national banking corporation, in good standing
under the laws of Delaware the federal laws of the United States of
America.
(ii) The Owner Trustee has full power and authority
(corporate and other) to own its properties and conduct its business,
as presently conducted by it, and to enter into and perform its
obligations as Owner Trustee under each Transaction Document to which
it is a party.
(iii) The execution and delivery of the Trust Agreement and,
on behalf of the Trust, each other Transaction Document to which the
Owner Trustee is a party, the Certificates and the Notes and the
performance by the Owner Trustee of its obligations under the Trust
Agreement have been duly authorized by all necessary corporate action
and each has been executed and delivered by the Owner Trustee.
(iv) The Trust Agreement constitutes a valid binding
agreement of the Owner Trustee, enforceable against the Owner Trustee
in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting enforcement of creditors' rights generally
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) Neither the execution nor delivery by the Owner Trustee
of each Transaction Document to which it is a party nor the
consummation of any of the transactions by the Owner Trustee
contemplated thereby require the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with
respect to, any governmental authority or agency under any existing
federal or state law governing the banking or trust powers of the Owner
Trustee, other than those consents, approvals or authorizations as have
been obtained.
(vi) Each of the Notes and the Trust Certificate have been
duly executed, authenticated and delivered by the Owner Trustee.
(vii) The execution and delivery of each Transaction
Document to which the Owner Trustee is a party and the performance by
the Owner Trustee of its terms do not conflict with or result in a
violation of (A) any federal or state law or regulation governing the
banking or trust powers of the Owner Trustee, (B) the Articles of
Association or Bylaws of the Owner Trustee or (C) to the best knowledge
of such
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counsel, any indenture, lease or material agreement to which the Owner
Trustee is a party or to which its assets are subject.
(k) Opinion of Counsel for Letter of Credit Banks. At the Closing Time,
the Representative shall have received the favorable opinion of in-house counsel
to the Letter of Credit Banks, dated as of the Closing Time and in form and
substance satisfactory to counsel for the Underwriters, substantially to the
effect that:
(i) The Letter of Credit Banks are duly organized as a
corporation and is validly existing under the laws of the country of
their organization, and have the full power and authority (corporate
and other) to issue, and to take all action required of it under, the
Letters of Credit.
(ii) The execution, delivery and performance by the Letter
of Credit Banks of the Letters of Credit have been duly authorized by
all necessary corporate action on the part of the Letter of Credit
Banks.
(iii) The execution, delivery and performance by the Letter
of Credit Banks of the Letters of Credit do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of any state or other
governmental agency or authority which has not previously been
effected.
(iv) The Letters of Credit have been duly authorized,
executed and delivered by the Letter of Credit Banks and constitute
legal, valid and binding obligations of the Letter of Credit Banks,
enforceable against each Letter of Credit Bank in accordance with their
respective terms (subject, as to enforcement, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and to general equity principles).
(l) Opinion of Counsel for Sky and Sky Parent. At the Closing Time, the
Representative shall have received the favorable opinion of in-house counsel to
Sky and Sky Parent, dated the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) Each of Sky and Sky Parent have been duly incorporated
and are validly existing as corporations, in good standing under the
laws of Ohio with full power and authority (corporate and other) to own
their respective properties and conduct their respective businesses, as
presently conducted by them, and to enter into and perform their
respective obligations under the Master Agreement and the Letters of
Credit and the Guaranty (collectively, the "Sky Documents").
(ii) The Sky Documents have been duly authorized, executed
and delivered by each of Sky and Sky Parent and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute a legal, valid and binding obligations of Sky
and Sky Parent enforceable in accordance with their terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium,
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reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The endorsement and delivery of each Contract, and the
execution of the Master Agreement is sufficient to fully transfer to
XxxxxxXxxxxx.xxx all right, title and interest of Sky in the Contracts,
the security interests in the Equipment and the proceeds relating
thereto, and will be sufficient to permit XxxxxxXxxxxx.xxx to avail
itself of all protection available lender applicable law against the
claims, if any, present or future creditors of XxxxxxXxxxxx.xxx and to
prevent any other sale, transfer, assignment, pledge or other
encumbrance of the Contracts, the security interests in the Equipment
and the proceeds relating thereto, by Sky from being enforceable.
(m) Opinion of Counsel for the Underwriters. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx & Xxxx LLP, counsel for the Underwriters, in form and
substance satisfactory to the Representative. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel to the Depositor, XxxxxxXxxxxx.xxx, Sky and the
Letter of Credit Banks satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Depositor,
XxxxxxXxxxxx.xxx and their subsidiaries and certificates of public officials.
(n) Reliance Letters. Counsel to the Depositor, XxxxxxXxxxxx.xxx, the
Letters of Credit Banks and Sky, and counsel delivering any opinions prior to or
at the end of the Pre-Funding Period, shall provide reliance letters to the
Representative relating to each legal opinion relating to the transaction
contemplated hereby rendered to the Indenture Trustee, the Trustee or either
Rating Agency.
(o) Maintenance of Rating. At the Closing Time, (i) the Class A Notes
shall be rated by Xxxxx'x Investors Service, Inc. and Duff & Xxxxxx Credit
Rating Co. (the "Rating Agencies") in their highest rating category and (ii) the
Class B Notes shall be rated by the Rating Agencies at least "Aa3" or its
equivalent, and XxxxxxXxxxxx.xxx and the Depositor shall have delivered to the
Representative a letter dated the Closing Time from the Rating Agencies, or
other evidence satisfactory to the Representative, confirming that the Class A
Notes and Class B Notes have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the Class
A Notes and Class B Notes or any other securities of the Depositor or
XxxxxxXxxxxx.xxx by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, and no such securities rating agency shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any Class of Notes or any other securities of the Depositor or
XxxxxxXxxxxx.xxx.
(p) Transaction Documents. At the Closing Time, the representations and
warranties of each of the Depositor, the Sellers, XxxxxxXxxxxx.xxx, the
Indenture Trustee, the Owner Trustee
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and the Trust contained in the Transaction Documents shall be true and correct
in all material respects and each party shall perform its obligations
thereunder.
(q) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the issuance
of the Securities and the sale of the Notes as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties or the
fulfillment of any of the conditions herein contained; and all proceedings taken
by the Depositor or XxxxxxXxxxxx.xxx in connection with the foregoing shall be
reasonably satisfactory in form and substance to counsel for the Underwriters.
(r) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled in all material respects when and as
required to be fulfilled, this Agreement may be terminated by the Representative
by notice to the Depositor and XxxxxxXxxxxx.xxx at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Depositor and XxxxxxXxxxxx.xxx
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any Rule
430A Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d)) any such settlement is effected with the
written consent of the Depositor and XxxxxxXxxxxx.xxx; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating,
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preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under clause (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Depositor or XxxxxxXxxxxx.xxx by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Depositor and XxxxxxXxxxxx.xxx. Each
Underwriter severally agrees to indemnify and hold harmless the Depositor,
XxxxxxXxxxxx.xxx, each person who signed the Registration Statement, each person
who was a director of the Depositor at the time of filing the Registration
Statement and each person, if any, who controls the Depositor or
XxxxxxXxxxxx.xxx within the meaning of Section 15 of the 1993 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including any Rule 430A Information or any Preliminary Prospectus Supplement or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Depositor or
XxxxxxXxxxxx.xxx by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a), counsel
to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case
of parties indemnified pursuant to Section 6(b), counsel to the indemnified
parties shall be selected by the Depositor or XxxxxxXxxxxx.xxx, as applicable.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which
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indemnification or contribution could be sought under this Section or Section 7
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 7. Contribution. If the indemnification provided for in Section
6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor and
XxxxxxXxxxxx.xxx, on the one hand, and the Underwriters, on the other hand, from
the offering of the Notes pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 Depositor and XxxxxxXxxxxx.xxx, on
the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Depositor and XxxxxxXxxxxx.xxx,
on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses) received by the
Depositor and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial offering price of the Notes as set forth on the cover.
The relative fault of the Depositor and XxxxxxXxxxxx.xxx, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or XxxxxxXxxxxx.xxx or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
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The Depositor, XxxxxxXxxxxx.xxx and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Underwriters are treated as one
entity for such purposes) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, 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 exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Depositor, each person who signed the Registration
Statement, and each person, if any, who controls the Depositor or
XxxxxxXxxxxx.xxx within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Depositor and
XxxxxxXxxxxx.xxx. The Underwriters' respective obligations to contribute
pursuant to this Section are several in proportion to the principal amount of
Notes set forth opposite their respective names in Schedule A and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Depositor, XxxxxxXxxxxx.xxx and
their respective Affiliates submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Depositor,
XxxxxxXxxxxx.xxx and their respective Affiliates, and shall survive delivery of
the Notes to the Underwriters.
Section 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Depositor and XxxxxxXxxxxx.xxx, at any time at or
prior to the Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Depositor,
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XxxxxxXxxxxx.xxx or XxxxxxXxxxxx.xxx and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Notes or to enforce contracts for
the sale of the Notes, (iii) if trading in any securities of the Depositor or
XxxxxxXxxxxx.xxx has been suspended or materially limited by the Commission or
if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority or (iv) if a banking moratorium has
been declared by either Federal, New York or Texas authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Notes which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the aggregate principal amount of the Notes to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Depositor shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration
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Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Xxxxxxxx X. Xxxxx;
notices to the Depositor or XxxxxxXxxxxx.xxx shall be directed to it at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx Xx (in the case of
XxxxxxXxxxxx.xxx) or to the Depositor at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000, Attention: E. Xxxxx Xxxxxxx (in the case of the Depositor).
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters, the Depositor, XxxxxxXxxxxx.xxx 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 Depositor, XxxxxxXxxxxx.xxx and their respective
successors and the controlling persons, directors and officers referred to in
Sections 6 and 7 and their heirs and legal representatives any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Depositor, XxxxxxXxxxxx.xxx and their respective successors,
and the controlling persons, directors and officers referred to in Sections 6
and 7 and their heirs and legal representatives and for the benefit of no other
person, firm or corporation. No purchaser of Notes from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not effect the
construction hereof.
31
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor and XxxxxxXxxxxx.xxx a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Depositor and
XxxxxxXxxxxx.xxx in accordance with its terms.
Very truly yours,
FIRST SIERRA RECEIVABLES III, INC.
By: /s/ E. Xxxxx Xxxxxxx
------------------------------------
E. Xxxxx Xxxxxxx
Vice President
XXXXXXXXXXXX.XXX INC.
By: /s/ E. Xxxxx Xxxxxxx
------------------------------------
E. Xxxxx Xxxxxxx
Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxxx X. Xxxxx
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
33
SCHEDULE A
Principal Amount of
Principal Amount of Principal Amount of Class B
Name of Underwriter Class A-1 Notes Class A-2 Notes Notes
------------------- ------------------- ------------------- -------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................... $ 63,000,000 $ 83,600,000 $ 14,052,729.00
First Union Securities, Inc................... 12,000,000 16,000,000 0
------------------- ------------------- -------------------
Total $ 75,000,000.00 $ 99,600,000.00 $ 13,306,118.00
=================== =================== ===================
SA-1
