EXHIBIT 1.1
GMAC EDUCATION LOAN FUNDING TRUST-I
$220,000,000
GMAC ELF STUDENT LOAN ASSET-BACKED NOTES
SERIES 2003-1
UNDERWRITING AGREEMENT
MARCH 20, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
GMAC Commercial Holding Capital Markets Corp.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
GMAC ELF LLC (the "SPONSOR") proposes to cause GMAC Education Loan Funding
Trust-I, a Delaware statutory trust (the "TRUST"), to issue and sell to Xxxxxxx
Xxxxx Xxxxxx Inc. and GMAC Commercial Holding Capital Markets Corp. (each an
"UNDERWRITER" and collectively, the "UNDERWRITERS"), pursuant to the terms of
this Underwriting Agreement (the "AGREEMENT"), the respective classes of the
Trust's GMAC ELF Student Loan Asset-Backed Notes, Series 2003-1 (the "NOTES") in
the classes and initial principal amounts set forth on Schedule I hereto. The
Trust has been formed by the Sponsor pursuant to a trust agreement, dated as of
January 15, 2003, amended and restated by an Amended and Restated Trust
Agreement, dated as of March 1, 2003 (as amended and supplemented from time to
time, the "TRUST AGREEMENT"), between the Sponsor and Wilmington Trust Company,
as Delaware Trustee (the "DELAWARE Trustee"). The assets of the Trust will
include, among other things, a pool of student loans (the "FINANCED STUDENT
LOANS") and all amounts collected thereunder on and after the Closing Date, as
defined below. Such Financed Student Loans will be acquired by the Trust from
the Sponsor pursuant to a loan sale agreement, to be dated as of March 1, 2003
(as amended and supplemented from time to time, the "SPONSOR LOAN PURCHASE
AGREEMENT"), between the Trust and the Sponsor. The Notes will be issued under
an Indenture of Trust, to be dated as of March 1, 2003 (the "MASTER INDENTURE"),
between the Trust, Zions First National Bank, as eligible lender trustee (the
"ELIGIBLE LENDER TRUSTEE") and as indenture trustee (the "TRUSTEE"), as
supplemented by the Series 2003-1 Supplemental Indenture of Trust to be dated as
of March 1, 2003 (the "SUPPLEMENTAL INDENTURE" and collectively with the Master
Indenture, the "INDENTURE") between the Trust and the Trustee. Upon issuance,
the Notes will be secured by, among other things, Financed Student Loans pledged
to the Trustee. GMAC Commercial Holding Capital Corp. ("CAPITAL CORP.") will
cause the Financed Student Loans to be serviced pursuant to a
servicing contractor agreement dated as of March 1, 2003 (the "Contractor
Agreement") between Capital Corp. and the Trust. The Sponsor is a wholly-owned
subsidiary of Capital Corp. Capital Corp. will enter into a loan subservicing
agreement with Great Lakes Educational Loan Services, Inc. ("GREAT LAKES" or the
"SUB-SERVICER"), dated as of January 28, 2003 (the "SUBSERVICING AGREEMENT")
pursuant to which the Sub-Servicer will service the Financed Student Loans. The
Trust and the Trustee have entered into a custodian agreement with Great Lakes,
dated as of March 1, 2003 (the "CUSTODIAN AGREEMENT"). In addition, pursuant to
an Administration Agreement, to be dated as of March 1, 2003 (as amended and
supplemented from time to time, the "ADMINISTRATION AGREEMENT"), among the
Trust, the Delaware Trustee, GMAC Commercial Holding Capital Corp. (in such
capacity, the "ADMINISTRATOR") and the Indenture Trustee, the Administrator will
agree to perform certain administrative tasks on behalf of the Trust. The Trust
will have the benefit of two LIBOR derivative product agreements entered into
under an ISDA Master Agreement and related schedule and confirmations, each
dated as of March 21, 2003 (the "LIBOR SWAP AGREEMENTS"), between the Trust and
Citibank, N.A. (the "LIBOR SWAP COUNTERPARTY").
In connection with determining the interest rates on the Notes, the Trust
and the Indenture Trustee will enter into an auction agent agreement, to be
dated as of March 1, 2003 (as amended and supplemented from time to time, the
"AUCTION AGENT AGREEMENT"), with Deutsche Bank Trust Company Americas, as
auction agent (the "AUCTION AGENT"). The Auction Agent will, in turn, enter into
separate broker-dealer agreements, each to be dated as of March 1, 2003 (each,
as amended and supplemented from time to time, a "BROKER-DEALER AGREEMENT"),
with the Underwriters.
This Agreement, the Trust Agreement, the Indenture, the Administration
Agreement, the Custodian Agreement, the Auction Agent Agreement, the
Broker-Dealer Agreements, the LIBOR Swap Agreements, the Sponsor Loan Purchase
Agreement, the loan purchase agreement dated as of January 28, 2003, between the
Sponsor and Education Lending Group, Inc. (the "ELG LOAN PURCHASE AGREEMENT"),
(the ELG Loan Purchase Agreement together with the Sponsor Loan Purchase
Agreement, the "SALE AGREEMENTS"), the eligible lender trust agreement, entered
into between the Sponsor and the Eligible Lender Trustee, the eligible lender
trust agreement to be entered into between the Trust and the Eligible Lender
Trustee, the Contractor Agreement, the Subservicing Agreement, and the Indenture
shall collectively hereinafter be referred to as the "BASIC DOCUMENTS."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus (defined below).
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Sponsor represents and warrants to, and agrees with the
Underwriters that:
(a) The Sponsor has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement (No. 333-102760) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "ACT"), of GMAC
ELF Student Loan Asset-Backed Notes, including the Notes, which registration
statement has become effective, and a copy of which, as amended to the date
hereof, has heretofore been delivered to the Underwriters. The
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Sponsor has filed with the Commission pursuant to Rule 424(b) under the rules
and regulations of the Commission under the Act (the "1933 ACT REGULATIONS") a
supplement dated March 17, 2003 (the "PROSPECTUS SUPPLEMENT"), to the prospectus
dated March 17, 2003 (the "BASIC PROSPECTUS"), relating to the Notes and the
method of distribution thereof. Such registration statement (No. 333-102760)
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"REGISTRATION STATEMENT;" the Basic Prospectus and the Prospectus Supplement and
any information incorporated therein by reference (including, without
limitation, and only for purposes of clarification, any information filed with
the Commission pursuant to a Current Report on Form 8-K), together with any
amendment thereof or supplement thereto authorized by the Sponsor on or prior to
the Closing Date for use in connection with the offering of the Notes, are
hereinafter called the "PROSPECTUS". Any preliminary form of the Prospectus
Supplement which has heretofore been filed pursuant to Rule 424, or prior to the
effective date of the Registration Statement pursuant to Rule 402(a), or 424(a)
is hereinafter called a "PRELIMINARY PROSPECTUS SUPPLEMENT."
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "EFFECTIVE DATE"), and the
Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Act and the 1933 Act
Regulations; and the Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date will not, contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that neither the Sponsor nor Capital Corp. makes any representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto
relating to the information identified by underlining or other highlighting as
shown in EXHIBIT A (the "EXCLUDED INFORMATION"); and PROVIDED, FURTHER, that
neither the Sponsor nor Capital Corp. makes any representations or warranties as
to either (i) any information in any Computational Materials or ABS Term Sheets
(each as hereinafter defined) required to be provided by the Underwriters to the
Sponsor pursuant to SECTION 4.2, or (ii) as to any information contained in or
omitted from the portions of the Prospectus identified by underlining or other
highlighting as shown in EXHIBIT B (the "UNDERWRITER INFORMATION"); and
PROVIDED, FURTHER, that neither the Sponsor nor Capital Corp. makes any
representations or warranties as to any information regarding the Subservicer or
the Guarantee Agencies contained in or omitted from the portions of the
Prospectus Supplement under the headings "Information Relating to the Guarantee
Agencies" and "Servicing of the Student Loans." The Sponsor acknowledges that,
except for any Computational Materials and ABS Term Sheets, the Underwriter
Information constitutes the only information furnished in writing by or on
behalf of any Underwriter for use in connection with the preparation of the
Registration Statement, any preliminary prospectus or the Prospectus, and the
Underwriters confirm that the Underwriter Information is correct.
(c) The Sponsor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware and has the requisite power to own its properties and to conduct its
business as presently conducted by it.
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(d) This Agreement has been duly authorized, executed and delivered
by the Sponsor and, assuming due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of the Sponsor,
enforceable against the Sponsor in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (ii) generally
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws liabilities.
(e) As of the Closing Date (as defined herein), the Notes will
conform in all material respects to the description thereof contained in the
Prospectus and the representations and warranties of the Sponsor in the Basic
Documents to which it is a party will be true and correct in all material
respects.
1.2 CAPITAL CORP. REPRESENTS AND WARRANTS TO AND AGREES WITH YOU THAT:
(a) As of the Closing Date, the representations and warranties of
Capital Corp. in the Basic Documents to which it is a party will be true and
correct in all material respects.
(b) This Agreement has been duly authorized, executed and delivered
by Capital Corp. and, assuming the due authorization, execution and delivery by
the Underwriters, constitutes a valid, legal and binding obligation of Capital
Corp., enforceable against Capital Corp. in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
1.3 EACH UNDERWRITER REPRESENTS AND WARRANTS TO AND AGREES WITH THE
SPONSOR AND CAPITAL CORP. THAT:
(a) With respect to each class of Notes being purchased by such
Underwriter, the fair market value of all such Notes sold to any single Person
on the date of initial sale thereof by such Underwriter will not be less than
$50,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder, including,
without limitation, SECTION 4.2, and, with respect to all Computational
Materials and ABS Term Sheets provided by such Underwriter to the Sponsor
pursuant to SECTION 4.2, if any, such Computational Materials and ABS Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth in the Computational Materials or ABS Term
Sheets, except to the extent of any errors therein that are caused by errors in
the information furnished to the Underwriters by the Sponsor) and include all
assumptions material to the preparation thereof. The Computational Materials and
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ABS Term Sheets provided by such Underwriter to the Sponsor constitute a
complete set of all Computational Materials and ABS Term Sheets delivered by
such Underwriter to prospective investors that are required to be filed with the
Commission.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Sponsor agrees to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Sponsor, the actual principal amounts or
percentage interests set forth in Schedule I hereto in the respective classes of
Notes at a price for each such class set forth in SCHEDULE I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes shall be made
at the offices of Xxxxx Xxxx LLP, Denver, Colorado 80202 at 11:00 a.m., Denver
time, on March 21, 2003, or such later date as the Underwriters shall designate,
which date and time may be postponed by agreement between the Underwriters and
the Sponsor (such date and time of delivery and payment for the Notes being
herein called the "CLOSING DATE"). Delivery of the Notes (also referred to
herein as the "DTC REGISTERED NOTES") shall be made to the respective accounts
of the Underwriters through DTC, in each case against payment by the
Underwriters to or upon the order of the Sponsor by wire transfer in immediately
available funds.
4. OFFERING BY UNDERWRITERS.
4.1 It is understood that the Underwriters propose to offer the Notes for
sale to the public as set forth in the Prospectus, and the Underwriters agree
that all offers and sales by the Underwriters shall be made in compliance with
all applicable laws and regulations. It is further understood that the Sponsor,
in reliance upon a no-filing letter from the Attorney General of the State of
New York granted pursuant to Policy Statement 105, has not and will not file an
offering statement pursuant to Section 352-e of the General Business Law of the
State of New York with respect to the Notes. As required by Policy Statement
105, each Underwriter therefore covenants and agrees with the Sponsor that sales
of the Notes made by such Underwriter in and from the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Notes, subject to the
following conditions to be satisfied by such Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "XXXXXX/PSA LETTER"), as well as the PSA Letter
referred to below. In connection with the use of ABS Term Sheets, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA LETTER" and, together with the Xxxxxx/PSA Letter, the
"NO-ACTION LETTERS").
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(b) For purposes hereof, "COMPUTATIONAL MATERIALS" as used herein
shall have the meaning given to such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of such Underwriter. For
purposes hereof, "ABS TERM Sheets" and "COLLATERAL TERM SHEETS" as used herein
shall have the meanings given such terms in the PSA Letter but shall include
only those ABS Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of such Underwriter.
(c) (i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend on each page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE NOTES
NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE
INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY
THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend shall
also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE FINANCED STUDENT LOANS CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE NOTES AND [, EXCEPT
WITH RESPECT TO THE INITIAL COLLATERAL TERM SHEET PREPARED
BY THE UNDERWRITERS,] SUPERSEDES ALL INFORMATION CONTAINED
IN ANY COLLATERAL TERM SHEETS RELATING TO THE FINANCED
STUDENT LOANS PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE]
UNDERWRITER]."
The Sponsor shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein. Notwithstanding the
foregoing, SUBSECTIONS (c)(i) and (c)(ii) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form previously approved in writing by the Sponsor.
(d) Such Underwriter shall provide the Sponsor with representative
forms of all Computational Materials and ABS Term Sheets prior to their first
use, to the extent such forms have not previously been approved by the Sponsor
for use by the Underwriters. Such
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Underwriter shall provide to the Sponsor, for filing on Form 8-K as provided in
SECTION 5.9, copies (in such format as required by the Sponsor) of all
Computational Materials and ABS Term Sheets that are required to be filed with
the Commission pursuant to the No-Action Letters. Such Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and ABS Term
Sheets described in this SUBSECTION (d) must be provided to the Sponsor not
later than 10:00 a.m. Denver time one business day before filing thereof is
required pursuant to the terms of this Agreement. Such Underwriter agrees that
it will not provide to any investor or prospective investor in the Notes any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be provided to the
Sponsor pursuant to this SECTION 4.2(d) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Sponsor in accordance
with this SECTION 4.2(d) for filing pursuant to SECTION 5.9), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(e) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that are required to
be filed were based on assumptions with respect to the Financed Student Loans
that differ from the final pool of Financed Student Loans in any material
respect or on Note structuring terms that were revised in any material respect
prior to the printing of the Prospectus, such Underwriter shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based on the
final pool of Financed Student Loans and final structuring assumptions,
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to such
Underwriter they would purchase all or any portion of the Notes, and include
such revised Computational Materials and ABS Term Sheets (marked, "as revised")
in the materials delivered to the Sponsor pursuant to SUBSECTION (d) above.
(f) The Sponsor shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any material
error or omission, provided that, at the request of the applicable Underwriter,
the Sponsor will file Computational Materials or ABS Term Sheets that contain a
material error or omission if clearly marked "superseded by materials dated
____________" and accompanied by corrected Computational Materials or ABS Term
Sheets that are marked "material previously dated ____________, as corrected."
In the event that within the period during which the Prospectus relating to the
Notes is required to be delivered under the Act, any Computational Materials or
ABS Term Sheets delivered by an Underwriter are determined, in the reasonable
judgment of the Sponsor or such Underwriter, to contain a material error or
omission, such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Notes, or actually purchased all or any
portion thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the Sponsor for filing
with the Commission in a subsequent Form 8-K submission (subject to the
Sponsor's obtaining an
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accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which shall be at the expense of such Underwriter).
(g) If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Sponsor pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Notes that is required to
be filed with the Commission in accordance with the No-Action Letters, and such
Underwriter shall provide the Sponsor with a certification to that effect on the
Closing Date.
(h) In the event of any delay in the delivery by such Underwriter to
the Sponsor of all Computational Materials and ABS Term Sheets required to be
delivered in accordance with SUBSECTION (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to SECTION 5.9, the
Sponsor shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other appropriate
actions, in each case as necessary in order to allow the Sponsor to comply with
its agreement set forth in SECTION 5.9 to file the Computational Materials and
ABS Term Sheets by the time specified therein.
(i) Each Underwriter represents and warrants that it has in place,
and covenants that it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term Sheets in connection
with the offering of the Notes.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the Notes,
all of the conditions set forth in CLAUSES (a) through (h) above have been or,
to the extent the relevant condition requires action to be taken after the date
hereof, will be, satisfied with respect thereto.
5. AGREEMENTS. The Sponsor agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Notes, the Sponsor will furnish the Underwriters
with a copy of each such proposed amendment or supplement.
5.2 The Sponsor will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Notes in which a prospectus relating to the Notes is required to be
delivered under the Act, any event occurs as a result of which it is necessary
to amend or supplement the Prospectus, as then amended or supplemented, in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or the
1933 Act Regulations, the Sponsor promptly will prepare and furnish, at its own
expense, to the
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Underwriters, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
5.4 The Sponsor will furnish to the Underwriters, without charge, a copy
of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as the Underwriters may
reasonably request.
5.5 The Sponsor agrees, so long as the Notes shall be outstanding, or
until such time as the several Underwriters shall cease to maintain a secondary
market in the Notes, whichever first occurs, to deliver to the Underwriters the
annual statement as to compliance delivered to the Trustee pursuant to Section
12.01 of the Indenture and the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 12.02 of the Indenture,
as soon as such statements are furnished to the Sponsor.
5.6 The Sponsor will endeavor to arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as the Underwriters may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Notes; provided, however, that the
Sponsor shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
5.7 Except as herein provided, the several Underwriters shall be
responsible only for paying all costs and expenses incurred by them, including
the fees and disbursements of their counsel, in connection with the purchase and
sale of the Notes.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Notes is required to be delivered under the Act, the Sponsor
receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Notes is in
effect, the Sponsor will advise the Underwriters of the issuance of such stop
order.
5.9 The Sponsor shall file the Computational Materials and ABS Term Sheets
(if any) provided to it by the Underwriters under SECTION 4.2(d) hereof with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriters or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m.
Denver time, on the second business day following the first day on which such
Collateral Term Sheet has been sent to a prospective investor; provided,
however, that prior to such filing of the Computational Materials and ABS Term
Sheets by the Sponsor, each Underwriter must comply with its obligations
pursuant to SECTION 4.2 and the Sponsor must receive a letter from
PricewaterhouseCoopers, LLP, certified public accountants, satisfactory in form
and substance to the Sponsor, Capital Corp. and their respective counsels, to
the effect that such accountants have performed certain specified procedures,
all of which have been agreed to by the Sponsor, as a result of which they
determined that all information that is included in the Computational Materials
and ABS Term Sheets (if any) provided by the Underwriters to the
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Sponsor for filing on Form 8-K, as provided in SECTION 4.2 and this SECTION 5.9,
is accurate except as to such matters that are not deemed by the Sponsor to be
material. The Sponsor shall file any corrected Computational Materials described
in Section 4.2(f) as soon as practicable following receipt thereof. The Sponsor
also will file with the Commission within fifteen days of the issuance of the
Notes a Current Report on Form 8-K (for purposes of filing the Basic Documents).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The Underwriters'
obligation to purchase the Notes shall be subject to the following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Sponsor, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since January 1, 2003, there shall have been no material adverse
change (not in the ordinary course of business) in the condition of the Sponsor
or Capital Corp.
6.3 The Sponsor shall have delivered to the Underwriters a certificate,
dated the Closing Date, of an authorized officer of the Sponsor to the effect
that:
(a) the representations and warranties of the Sponsor in the Basic
Documents to which it is a party are true and correct in all material respects;
(b) the Sponsor has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(c) the information regarding the Sponsor contained in the
Prospectus is fair and accurate in all material respects.
6.4 Capital Corp. shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of Capital Corp. to the effect that the signer of such
certificate has examined this Agreement and the Basic Documents and that, to the
best of his or her knowledge after reasonable investigation, the representations
and warranties of Capital Corp. contained in this Agreement and the other Basic
Documents to which Capital Corp. is a party are true and correct in all material
respects.
6.5 The Underwriters shall have received the opinions of Xxxxx Xxxx
LLP, special counsel for the Sponsor and Capital Corp., dated the Closing Date
as to such matters reasonably requested by the Underwriters, and the opinion of
General Counsel for the Sponsor and Capital Corp., dated the Closing date as
to such matters reasonably requested by the Underwriters.
6.6 You shall have received an opinion addressed to you of Stroock &
Stroock & Xxxxx LLP, in its capacity as Underwriter's Counsel, dated the Closing
Date, in form and substance satisfactory to you.
10
6.7 You shall have received the opinions addressed to you of Xxxxxxxx,
Xxxxxx & Xxxxxx, in its capacity as counsel to the Owner Trustee and the Trust,
dated the Closing Date and in form and substance satisfactory to you and your
counsel.
6.8 You shall have received an opinion addressed to you of counsel to the
Trustee and the Eligible Lender Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel.
6.9 You shall have received certificates addressed to you dated the
Closing Date of the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting officer
of the Sub-Servicer in which such officer shall state that, to the best of his
or her knowledge after reasonable investigation, (i) the representations and
warranties of the Sub-Servicer contained in the Subservicing Agreement are true
and correct in all material respects, that the Sub-Servicer has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, (ii) that he or
she has reviewed the Prospectus and that the information therein regarding the
Sub-Servicer is fair and accurate in all material respects, and (iii) since the
date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change in, or affecting particularly the business
or properties of the Sub-Servicer has occurred.
6.10 The Underwriters shall have received an opinion of counsel to Great
Lakes and Great Lakes Higher Education Guaranty Corporation, dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
6.11 You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being filed
in the office of the Secretary of State of the State of Delaware reflecting the
grant of the security interest by the Trust in the Financed Student Loans and
the proceeds thereof to the Trustee.
6.12 You shall have received a certificate addressed to you dated the
Closing Date from a responsible officer acceptable to you of the Trustee in the
form and substance satisfactory to you and your counsel and to which shall be
attached each Guarantee Agreement.
6.13 The Underwriters shall have received a certificate dated the Closing
Date from Great Lakes Higher Education Guaranty Corporation, satisfactory to the
Underwriters and counsel for the Underwriters, certifying as to certain
information with respect to such Guarantee Agency contained in the Prospectus.
6.14 The Underwriters shall have received on the Closing Date from
PricewaterhouseCoopers, LLP a letter dated the Closing Date, and in form and
substance satisfactory to the Underwriters, to the effect that they have carried
out certain specified procedures, not constituting an audit, with respect to
certain information regarding the Financed Student Loans and setting forth the
results of such specified procedures.
6.15 The respective classes of Notes shall have been rated as set forth on
SCHEDULE I.
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6.16 The Sponsor will furnish the Underwriters with conformed copies of the
above opinions, certificates, letters and documents as they reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Sponsor and Capital Corp., jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Notes as originally filed or
in any amendment thereof or other filing incorporated by reference therein, or
in the Prospectus or incorporated by reference therein (if used within the
period set forth in SECTION 5.3 hereof and as amended or supplemented if the
Sponsor shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon any information
with respect to which the Underwriters have agreed to indemnify the Sponsor
pursuant to SECTION 7.2; provided that none of the Sponsor, Capital Corp. or any
Underwriter will be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein relating
to the Excluded Information, or any information included in Computational
Materials or ABS Term Sheets that have been superseded by revised Computational
Materials or ABS Terms Sheets (any such information, the "EXCLUDED POOL
INFORMATION") provided that such Underwriter has complied with its obligation to
circulate revised Computational Materials and ABS Terms Sheets in accordance
with SECTION 4.2(e) and has delivered them to the Sponsor no later than one (1)
Business Day after delivery to investors.
7.2 Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Sponsor, Capital Corp., their respective directors or officers
and any person who controls the Sponsor or Capital Corp. within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in SECTION 7.1 above from the Sponsor and
Capital Corp. to the Underwriters, but only with respect to (i) the Underwriter
Information relating to such Underwriter or supplied by such Underwriter to the
Sponsor for inclusion in the Prospectus Supplement and (ii) the Computational
Materials and ABS Term Sheets delivered to investors in the Notes by such
Underwriter, except to the extent of any errors in the Computational Materials
or ABS Term Sheets that are caused by errors in the tape provided by the Sponsor
that was used to create such Computational Materials or ABS Term Sheets;
provided, however, that the indemnification set forth in this SECTION 7.2 shall
not apply to the extent of any errors in the Computational Materials or ABS Term
Sheets that are caused by Excluded Information provided that such Underwriter
has complied with its obligation to circulate revised Computational Materials
and ABS Terms Sheets in accordance with SECTION 4.2(e) and has delivered them to
the Sponsor (or its counsel) no later than one (1) Business Day after delivery
to investors. In addition, the Underwriter agrees to indemnify and hold harmless
the Sponsor, Capital Corp., their respective directors or officers and any
person who controls the Sponsor or Capital Corp. within the meaning of either
Section 15 of the Act or Section 20 of the
12
Exchange Act against any and all losses, claims, damages, liabilities and
expenses (including, without limitation, reasonable attorneys' fees) caused by,
resulting from, relating to, or based upon any legend regarding original issue
discount on any Underwritten Certificate resulting from incorrect information
provided by such Underwriter in the certificate described in SECTION 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either SECTION 7.1 or 7.2, such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Underwriters, in the case of parties
indemnified pursuant to SECTION 7.1, and by the Sponsor or Capital Corp., in the
case of parties indemnified pursuant to SECTION 7.2. The indemnifying party may,
at its option, at any time upon written notice to the indemnified party, assume
the defense of any proceeding and may designate counsel reasonably satisfactory
to the indemnified party in connection therewith, provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this SECTION 7 is unavailable
to an indemnified party under SECTION 7.1 or 7.2 hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Sponsor
and Capital Corp. on the one hand and any of the Underwriters on the other from
the offering of the Notes but also the relative fault of the Sponsor and Capital
Corp. on the one hand and any of the Underwriters on the other in
13
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Sponsor and Capital Corp. on the one
hand and of any of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Sponsor or Capital Corp. or by an
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
7.5 The Sponsor, Capital Corp. and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this SECTION 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in SECTION 7.4 above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in this SECTION 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses pursuant to SECTION 7.4; which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Sponsor and Capital Corp. in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Sponsor or Capital Corp. and their respective directors or officers or any
person controlling the Sponsor or Capital Corp. and (iii) acceptance of and
payment for any of the Notes.
8. TERMINATION. This Agreement shall be subject to termination by notice given
to the Sponsor and Capital Corp., if the sale of the Notes provided for herein
is not consummated because of any failure or refusal on the part of the Sponsor
or Capital Corp. to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Sponsor or Capital Corp. shall be
unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this SECTION 8, the
Sponsor or Capital Corp. will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of outside
counsel) that shall have been reasonably incurred by the Underwriters in
connection with the proposed purchase and sale of the Notes.
9. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail to purchase and
pay for any of the Notes agreed to be purchased by such Underwriter hereunder
and such failure to purchase shall constitute a default in the performance of
its obligations under this Agreement, the
14
remaining Underwriters shall be obligated to take up and pay for the Notes that
the defaulting Underwriter agreed but failed to purchase; provided, however,
that in the event that the initial principal amount of Notes that the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
principal balance of all of the Notes set forth in SCHEDULE I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriters do not purchase all of the Notes, this Agreement will terminate
without liability to the nondefaulting Underwriters, the Sponsor or Capital
Corp.. In the event of a default by any Underwriter as set forth in this SECTION
9, the Closing Date for the Notes shall be postponed for such period, not
exceeding seven days, as the nondefaulting Underwriters shall determine in order
that the required changes in the Registration Statement, the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Sponsor and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Sponsor, Capital Corp., the Underwriters or the officers of any of the Sponsor,
Capital Corp. and the Underwriters set forth in or made pursuant to this
Agreement, will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or made by or on behalf of the Sponsor or Capital Corp. or any
of their respective officers, directors or controlling persons, and will survive
delivery of and payment for the Notes.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, and GMAC Commercial Holding
Capital Markets Corp., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx Xxxxxxxxx; or, if sent to the Sponsor, will be mailed,
delivered or telegraphed and confirmed to it at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx; or, if sent to Capital
Corp., will be mailed, delivered or telegraphed and confirmed to it at 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxx.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in SECTION 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
15
[SIGNATURES FOLLOW]
16
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Sponsor, Capital
Corp. and the Underwriters.
Very truly yours,
GMAC ELF LLC
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GMAC COMMERCIAL HOLDING
CAPITAL CORP.
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
GMAC COMMERCIAL HOLDING CAPITAL
MARKETS CORP.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-102760 filed by GMAC ELF LLC and GMAC Education
Loan Funding Trust-I on Form S-3 and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED NOTES
GMAC ELF Student Loan Asset-Backed Notes, Series 2003-1, Class A-1AR, Class
A-2AR, Class A-3AR and Class B-1AR
Underwriters: Xxxxxxx Xxxxx Xxxxxx Inc. ("SSMB") and GMAC Commercial Holding
Capital Markets Corp. ("Capital Corp.")
Underwriting Agreement, dated March 20, 2003
Cut-off Date: Closing Date
Allocations: Subject to the terms and conditions of the Underwriting Agreement,
each Underwriter has agreed to purchase the percentage of each class of Notes as
set forth below:
ALLOCATION TABLE
UNDERWRITER CLASS A-1AR CLASS A-2AR CLASS A-3AR CLASS B-1AR
----------- ----------- ----------- ----------- -----------
SSMB 100% 100% 0% 100%
Capital Corp. 0% 0% 100% 0%
Total 100% 100% 100% 100%
Class Initial Class Principal Ratings
Designation Balance Purchase Price(1) Fitch/Xxxxx'x/S&P
----------- ----------------------- ---------------- -----------------
A-1AR $ 78,000,000 99.65% AAA/Aaa/AAA
A-2AR $ 78,000,000 99.65% AAA/Aaa/AAA
A-3AR $ 50,000,000 99.65% AAA/Aaa/AAA
B $ 14,000,000 99.65% A/A2/A
Total $ 220,000,000 $219,230,000
----------
(1) Expressed as a percentage of the Class Principal Balance of the
relevant class of Notes to be purchased hereunder.
Closing Time, Date and Location: 11:00 a.m. Denver time on March 21, 2003 at the
offices of Xxxxx Xxxx LLP. Issuance and delivery of Registered Notes: Each class
of Registered Notes will be issued as one or more Notes registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Notes through the book-entry facilities of The
Depository Trust Company, in minimum denominations of initial principal balance
of $50,000 and in any whole dollar denomination in excess thereof.
I-1
EXHIBIT A
EXCLUDED INFORMATION OF PROSPECTUS SUPPLEMENT
None.
A-1
EXHIBIT B
UNDERWRITER INFORMATION
(All circled text and tables are excluded)
B-1
PLAN OF DISTRIBUTION
SUBJECT TO THE TERMS AND CONDITIONS OF THE
UNDERWRITING AGREEMENT BETWEEN
US AND THE UNDERWRITERS NAMED BELOW, WE AGREE TO SELL TO EACH OF THE
UNDERWRITERS, AND EACH OF THE UNDERWRITERS WILL AGREE TO PURCHASE FROM US, THE
PRINCIPAL AMOUNT OF THE NOTES SET FORTH OPPOSITE ITS NAME.
CLASS A-1AR CLASS A-2AR CLASS A-3AR CLASS B-1AR
UNDERWRITER NOTES NOTES NOTES NOTES
----------- ------------ ------------ ------------ ------------
XXXXXXX XXXXX XXXXXX INC. $ 78,000,000 $ 78,000,000 $ 0 $ 14,000,000
GMAC COMMERCIAL HOLDING CAPITAL
MARKETS CORP. $ 0 $ 0 $ 50,000,000 $ 0
------------ ------------ ------------ ------------
TOTAL $ 78,000,000 $ 78,000,000 $ 50,000,000 $ 14,000,000
------------ ------------ ------------ ------------
The underwriters have agreed to purchase all of the notes listed above if
any of the notes are purchased. THE UNDERWRITERS HAVE ADVISED THAT THEY PROPOSE
TO OFFER THE NOTES TO THE PUBLIC INITIALLY AT THE RESPECTIVE OFFERING PRICES SET
FORTH ON THE COVER PAGE OF THIS PROSPECTUS SUPPLEMENT. Until the distribution of
notes is completed, the rules of the Securities and Exchange Commission may
limit the ability of the underwriters and selling group members to bid for and
purchase the notes. As an exception to these rules, the underwriters are
permitted to engage in transactions that stabilize the price of the notes. These
transactions consist of bids to purchase and open market purchases and sales for
the purpose of pegging, fixing or maintaining the price of the notes.
Purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of those purchases.
In addition, the underwriters may impose a penalty bid on the
broker-dealers who sell the notes. This means that if an underwriter purchases
notes in the open market to reduce a broker-dealer's short position or to
stabilize the prices of the notes, it may reclaim the selling concession from
the broker-dealer who sold those notes as part of the offering.
In general, over-allotment transactions and open market purchases of the
notes for the purpose of stabilization or to reduce a short position could cause
the price of a note to be higher than it might be in the absence of such
transactions.
Neither we nor any of the underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the prices of the notes. In addition, neither we nor
any of the underwriters make any representation that the underwriters will
engage in these transactions or that these transactions, once commenced, will
not be discontinued without notice.
WE HAVE BEEN ADVISED BY THE UNDERWRITERS THAT THEY PRESENTLY INTEND TO MAKE
A MARKET IN THE NOTES; HOWEVER, THEY ARE NOT OBLIGATED TO DO SO. In addition,
any market-making may be discontinued at any time, and an active public market
for the notes may not develop.
From time to time, the underwriters or their affiliates may perform
investment banking and advisory services for, and may provide general financing
and banking services to us and its affiliates. From time to time, we may invest
funds in the reserve fund and other accounts under the indenture in eligible
instruments either acquired from the underwriters or issued by affiliates of the
underwriters.
The
underwriting agreement will provide that we will indemnify the
underwriters against certain civil liabilities, including liabilities under the
Securities Act of 1933, and we have agreed to reimburse the underwriters for the
fees and expenses of their counsel.
This prospectus supplement and the prospectus may be used by our
affiliates, to the extent required, in connection with market making
transactions in the offered notes. The affiliates may act as principal or agent
in such transactions.
XXXXXXX XXXXX XXXXXX INC., WHICH IS ONE OF THE UNDERWRITERS OF THE NOTES,
IS RELATED TO CITIBANK, N.A., THE COUNTERPARTY FOR THE LIBOR DERIVATIVE PRODUCT
AGREEMENTS.
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