Exhibit 1.1
$224,221,791
(approximate)
GREATAMERICA LEASING RECEIVABLES 2002-1, L.L.C.
(ISSUER)
GREATAMERICA LEASING CORPORATION
(ORIGINATOR)
Class A-1
Class A-2
Class A-3
Class A-4
Class B
RECEIVABLE-BACKED NOTES, SERIES 2002-1
UNDERWRITING AGREEMENT
March __, 2002
First Union Securities, Inc.
One First Union Center, Mail Code: NC0610
301 South College Street
Charlotte, North Carolina 28288-0610
Ladies and Gentlemen:
GreatAmerica Leasing Receivables 2002-1, L.L.C. (the "Issuer") proposes
to pledge certain true leases, finance leases and other security agreements with
various companies to JPMorgan Chase Bank, as Indenture Trustee (the "Indenture
Trustee") and will issue the Receivable-Backed Notes, Series 2002-1, consisting
of (i) Class A-1, Class A-2, Class A-3, Class A-4 and Class B (the "Offered
Notes") and (ii) Class C and Class D (the "Non-offered Notes" and, together with
the Offered Notes, the "Notes"). The Notes are to be issued pursuant to the
Indenture, to be dated as of March 1, 2002 (the "Indenture"), between the
Indenture Trustee and the Issuer, the form of which Indenture shall
substantially be the form filed as an exhibit to the Registration Statement (as
defined herein). Any capitalized terms used herein but not defined shall have
the meaning set forth or referenced in the Transfer and Servicing Agreement (as
defined below).
The Issuer and GreatAmerica Leasing Corporation ("GreatAmerica") hereby
confirm their agreement through this agreement (the "Underwriting Agreement"),
with First Union Securities, Inc. (the "Underwriter") to sell the Offered Notes
to the Underwriter on the terms and
conditions hereof, in the amount set forth on Schedule A. The Offered Notes are
more fully described in the Registration Statement that the Issuer has furnished
to the Underwriter.
Simultaneously with the execution of the Indenture, the Issuer will
enter into a transfer and servicing agreement (the "Transfer and Servicing
Agreement") with GreatAmerica (in such capacity, the "Originator") and the
Indenture Trustee, dated as of March 1, 2002, pursuant to which the Originator
will transfer to the Issuer all of its right, title and interest in and to the
Conveyed Assets as of the Cutoff Date and the Issuer will pledge to the
Indenture Trustee all of its right, title and interest in and to the Pledged
Assets as of the Cutoff Date.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND
GREATAMERICA.
The Issuer and GreatAmerica, jointly and severally, represent and
warrant to the Underwriter that:
(a) The Issuer has all requisite power, authority and legal right to
own its property and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under the Notes and each of the Transaction Documents to which
it is a party.
(b) The Issuer has full power, authority and legal right to execute,
deliver and sell the Notes to the Underwriter and to perform its obligations
under the Notes and the Transaction Documents to which it is a party.
(c) The execution and delivery of the Notes and each of the Transaction
Documents to which it is a party, the incurrence of the obligations herein and
therein set forth and the consummation of the transactions contemplated
hereunder and thereunder have been duly authorized by the members of the Issuer
and all other necessary action has been taken.
(d) The Underwriting Agreement has been duly authorized and validly
executed and delivered by the Issuer.
(e) Each of the Transaction Documents to which it is a party and the
Notes will be executed and delivered by the Issuer on or before the Closing
Date, and when executed and delivered by the other parties thereto, will
constitute a valid and binding agreement of the Issuer, enforceable against the
Issuer in accordance with their respective terms, except to the extent that (i)
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, receivership or other similar laws now or hereafter
in effect affecting the enforcement of creditors' or other obligees' rights in
general or by the public policy underlying the federal or state securities laws,
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought and (iii) certain
remedial provisions of the Indenture may be unenforceable in whole or in part
under the Uniform Commercial Code (the "UCC"), but the inclusion of such
provisions does not render the other provisions of the Indenture invalid and,
notwithstanding that such provisions may be unenforceable in whole or in part,
the Indenture Trustee, on behalf of the Noteholders, will be
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able to enforce the remedies of a secured party under the UCC.
(f) The Notes will be issued pursuant to the terms of the Indenture
and, when executed by the Issuer and authenticated by the Indenture Trustee in
accordance with the Indenture and, with respect to the Offered Notes only,
delivered pursuant to the Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the Indenture. The Notes will be in
the form contemplated by the Indenture and will conform in all material respects
to the description thereof contained in the Prospectus (as defined herein) and
the Registration Statement, each as amended or supplemented.
(g) The Issuer is not in violation of any requirement of law or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
lease or other instrument to which it is a party or by which it is bound or to
which any of its property is subject, which violations or defaults separately or
in the aggregate would have a material adverse effect on the Issuer.
(h) Neither the issuance and sale of the Notes, nor the execution and
delivery by the Issuer of the Notes or the Transaction Documents to which it is
a party, nor the incurrence by the Issuer of the obligations herein and therein
set forth, nor the consummation of the transactions contemplated hereunder or
thereunder, nor the fulfillment of the terms hereof or thereof does or will (i)
violate any requirement of law presently in effect, applicable to it or its
properties or by which it or its properties are or may be bound or affected,
(ii) conflict with, or result in a breach of, or constitute a default under, any
indenture, contract, agreement, deed, lease, mortgage or instrument to which it
is a party or by which it or its properties are bound, or (iii) result in the
creation or imposition of any Lien (as defined herein) upon any of its property
or assets, except for those encumbrances created under the Indenture.
(i) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by the Issuer of the Notes or the Transaction
Documents to which it is a party, or to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfillment of the terms hereof
and thereof have been or will have been obtained on or before the Closing Date.
(j) All actions required to be taken by the Issuer as a condition to
the offer and sale of the Notes as described herein or the consummation of any
of the transactions described in the Prospectus, the Registration Statement and
the Transaction Documents have been or, prior to the Closing Date, will be
taken.
(k) The representations and warranties made by the Issuer in the
Transaction Documents and made in any Officer's Certificate of the Issuer
delivered pursuant to the Transaction Documents will be true and correct of the
time made and on and as of the Closing Date as if set forth herein.
(l) The Issuer agrees that it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right,
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title or interest in, the Pledged Assets except as provided in, or expressly
permitted by, the Transfer and Servicing Agreement or the Indenture, and agrees
to take all action required by the Transfer and Servicing Agreement and the
Indenture in order to maintain the security interest in the Pledged Assets
granted pursuant to the Indenture.
(m) The Issuer possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and the Issuer has not received notice of
any proceedings relating to the revocation or modification of any such license,
certificate, authority or permit that if decided adversely to the Issuer would,
singly or in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
(n) There are no actions, proceedings or investigations pending before
or, to the knowledge of the Issuer, threatened by any court, administrative
agency or other tribunal to which the Issuer is a party or of which any of its
properties are the subject (i) that if determined adversely to the Issuer would
have a material adverse effect on the business or financial condition of the
Issuer, (ii) asserting the invalidity of the Notes or any Transaction Document,
(iii) seeking to prevent the issuance of the Notes or the consummation by the
Issuer of any of the transactions contemplated by any Transaction Document or
(iv) that would materially and adversely affect the performance by the Issuer
under, or the validity or enforceability of, any Transaction Document or the
Notes.
(o) The Issuer meets the requirements for use of Form S-1 under the
Securities Act of 1933, as amended and the rules and regulations of the
Commission hereunder (collectively, the "Securities Act") and has prepared and
filed with the United States Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act, a
registration statement on Form S-1 (registration number 333-70892), including a
form of preliminary prospectus, relating to the Offered Notes. The registration
statement, and any post-effective amendment thereto, each in the form heretofore
delivered to the Underwriter and, excluding exhibits thereto, have been declared
effective by the Commission. As used in this Underwriting Agreement, "Effective
Time" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared effective
by the Commission and "Effective Date" means the date of the Effective Time. The
Issuer has furnished to the Underwriter copies of one or more preliminary
prospectuses (each, a "Preliminary Prospectus") relating to the Notes. Except
where the context otherwise requires, the Registration Statement, as amended at
the Effective Time, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the
registration statement as of the Effective Time pursuant to Rule 430A under the
Securities Act, is herein called the "Registration Statement", and the
prospectus, in the form filed by the Issuer with the Commission pursuant to Rule
424(b) under the Securities Act or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time it became
effective, is hereinafter called the "Prospectus". There are no contracts or
documents of the Issuer that are required to be described in the Prospectus, or
filed as exhibits to the Registration Statement pursuant to the Securities Act
or the Rules and Regulations that have not been so described, filed
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or incorporated by reference therein on or prior to the Closing Date. The
conditions for use of Form S-1, as set forth in the General Instructions
thereto, have been satisfied.
(p) The Registration Statement relating to the Offered Notes has been
filed with the Commission and such Registration Statement has become effective.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Issuer or GreatAmerica, threatened by the Commission.
(q) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and does not and will not, as of the
Effective Date as to the Registration Statement and any amendment thereto, as of
the applicable filing date as to the Prospectus and any amendment or supplement
thereto, and as of the Closing Date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to (i) that part of the Registration
Statement that shall constitute the Statement of Eligibility and Qualification
(Form T-1) of the Indenture Trustee under the Trust Indenture Act or (ii) any
Underwriter's Information (as defined in Section 9(d) hereof) contained therein.
The Indenture conforms in all respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder. As of
the Closing Date, the Issuer's representations and warranties in the Transfer
and Servicing Agreement and the Indenture will be true and correct in all
material respects.
(r) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Issuer, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(s) All the outstanding membership interests of the Issuer have been
duly authorized and validly issued and are owned by GreatAmerica free and clear
of any claim, lien, encumbrance, security interest or any other claim of any
third party.
(t) Deloitte & Touche LLP are independent public accountants with
respect to the Issuer as required by the Securities Act.
(u) At the time of execution and delivery of the Indenture, the Issuer
will: (i) have good title to the interest in the Conveyed Assets conveyed by
GreatAmerica, free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively, "Liens"); (ii) not have
assigned to any Person (other than the Indenture Trustee) any of its right,
title or interest in the Pledged Assets, or the Transaction Documents; and (iii)
have the power and authority to pledge its interest in the Pledged Assets to the
Indenture Trustee. Upon execution and delivery of the Indenture by the Indenture
Trustee and any related instruments of pledge, transfer or assignment by the
Issuer, the Indenture Trustee will have a valid security interest in all of the
Issuer's right, title and interest in and to the Pledged Assets.
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Upon delivery to the Underwriter of the Offered Notes, the Underwriter will have
good title to the Offered Notes free of any Liens.
(v) The Issuer is located (as such term is used in Article 9 of the
UCC) in Cedar Rapids, Iowa. The Issuer agrees that it will not change the
location of such office to a location outside of Cedar Rapids, Iowa, without at
least 30 days prior written notice to GreatAmerica, the Indenture Trustee and
the Rating Agencies.
(w) As of the Cutoff Date, the Contracts met the eligibility criteria
described in the Prospectus and conformed to the descriptions thereof contained
in the Prospectus.
(x) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Transaction Documents and the Notes
have been paid or will be paid at or prior to the Closing Date.
(y) All GreatAmerica-Provided Information was true and correct in all
material respects as of the date it was provided to the Underwriter. The term
"GreatAmerica-Provided Information" means the information contained on any
computer tape furnished to the Underwriter or provided by other written means,
electronic transmission or computer disk by the Issuer or GreatAmerica
concerning the assets comprising the Contract Assets; and
(z) The Issuer is not required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and regulations
of the Commission thereunder.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF GREATAMERICA.
GreatAmerica represents and warrants to the Underwriter that:
(a) The execution and delivery of each of the Transaction Documents to
which it is a party, the incurrence of the obligations herein and therein set
forth and the consummation of the transactions contemplated hereunder and
thereunder have been duly authorized by the board of directors of GreatAmerica
and all other necessary action has been taken.
(b) The Underwriting Agreement has been duly authorized and validly
executed and delivered by GreatAmerica.
(c) Each of the Transaction Documents to which it is a party will be
executed and delivered by GreatAmerica on or before the Closing Date, and when
executed and delivered by the other parties thereto, will constitute a valid and
binding agreement of GreatAmerica, enforceable against GreatAmerica in
accordance with their terms, except to the extent that (i) the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership or other similar laws now or hereafter in effect
affecting the enforcement of creditors' or other obligees' rights in general or
by the public policy underlying the federal or state securities laws, (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) certain remedial
provisions
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of the Indenture may be unenforceable in whole or in part under the UCC, but the
inclusion of such provisions does not render the other provisions of the
Indenture invalid and, notwithstanding that such provisions may be unenforceable
in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will
be able to enforce the remedies of a secured party under the UCC.
(d) The representations and warranties made by GreatAmerica in the
Transaction Documents and made in any Officer's Certificate of GreatAmerica
delivered pursuant to the Transaction Documents will be true and correct as of
the time made and on and as of the Closing Date as if set forth herein.
(e) GreatAmerica possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and has not received notice of any
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit that if decided adversely to GreatAmerica
would, singly or in the aggregate, materially and adversely affect the conduct
of their business, operations or financial condition.
(f) GreatAmerica has been duly incorporated and is validly existing as
a corporation in good standing under the law of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and has
all power and authority necessary to own or hold properties and to conduct the
businesses in which engaged, except where the failure to so qualify or have such
power or authority could not have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of operations,
business or prospects of GreatAmerica taken as a whole, and to execute, deliver
and perform its obligations under the Transaction Documents.
(g) There are no actions, proceedings or investigations pending before
or, to the knowledge of GreatAmerica, threatened by any court, administrative
agency or other tribunal to which GreatAmerica is a party or of which any of its
properties are the subject (i) that if determined adversely to GreatAmerica
would have a material adverse effect on the business or financial condition of
GreatAmerica, (ii) asserting the invalidity of the Notes or any Transaction
Document, (iii) seeking to prevent the issuance of the Notes or the consummation
by GreatAmerica of any of the transactions contemplated by any Transaction
Document or (iv) that would materially and adversely affect the performance by
GreatAmerica under, or the validity or enforceability of, any Transaction
Document to which GreatAmerica is a party.
(h) GreatAmerica (i) is not in violation of its charter or by-laws,
(ii) is not in default in any material respect, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) is not in violation in
any respect of any law, ordinance, governmental rule, regulation or court decree
to which it or its property or assets may be subject,
7
except any violation or default that would not have a material adverse effect on
the condition (financial or otherwise), results of operations, business or
prospects of GreatAmerica.
(i) GreatAmerica agrees that it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Contract
Assets (i) except such interests that have or will be released as of the Closing
Date and (ii) except as provided in, or expressly permitted by, the Transfer and
Servicing Agreement, and agrees to take all action required by the Transfer and
Servicing Agreement in order to maintain the security interest in the Contract
Assets granted pursuant to the Transfer and Servicing Agreement.
SECTION 3. PURCHASE AND SALE.
Subject to the terms and conditions and in reliance upon the covenants,
representations and warranties herein set forth, the Issuer agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Issuer, the
principal amount of Offered Notes set forth on Schedule A hereto. The purchase
price for the Offered Notes shall be as set forth in Schedule A hereto.
SECTION 4. DELIVERY AND PAYMENT.
The Issuer will deliver the Offered Notes to the Underwriter against
payment of the purchase price in immediately available funds, paid at the
direction of the Issuer, at the office of Moore & Van Allen, PLLC, 100 North
Tryon Street, Suite 4700, Charlotte, North Carolina 28202-4003, on March ___,
2002, or at such other time not later than seven (7) full business days
thereafter as the Underwriter and the Issuer determine, such time being herein
referred to as the "Closing Date." Each of the Offered Notes to be so delivered
shall be represented by one or more Definitive Notes registered in the name of
Cede & Co., as nominee for The Depository Trust Company ("DTC"). Definitive
Notes evidencing the Offered Notes will be available only under the limited
circumstances specified in the Indenture (other than such Offered Notes issued
in the name of Cede & Co. as nominee for DTC). The Issuer shall make such
Definitive Notes representing the Offered Notes available for inspection by the
Underwriter at the office at which the Offered Notes are to be delivered no
later than five hours before the close of business in Charlotte, North Carolina
on the business day prior to the Closing Date.
SECTION 5. OFFERING BY UNDERWRITER.
It is understood that the Underwriter proposes to offer the Offered
Notes for sale to the public, which may include selected dealers, as set forth
in the Prospectus.
SECTION 6. COVENANTS OF THE ISSUER AND GREATAMERICA.
The Issuer and GreatAmerica, jointly and severally, covenant and agree
with the Underwriter as follows:
(a) The Issuer will prepare the Prospectus in a form approved by the
Underwriter, and will file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the
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Commission's close of business on the second business day following the
execution and delivery of this Underwriting Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Securities Act.
(b) During the period that a prospectus relating to the Offered Notes
is required to be delivered under the Securities Act in connection with sales of
such Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"), before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Issuer will furnish to the
Underwriter a copy of the proposed amendment or supplement for review and will
not file any such proposed amendment or supplement to which the Underwriter
reasonably objects.
(c) During the prospectus delivery period, the Issuer will advise the
Underwriter, promptly after it receives notice thereof, (i) when any amendment
to the Registration Statement shall have become effective; (ii) of any request
by the Commission for any amendment or supplement to the Registration Statement
or the Prospectus or for any additional information; (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, (iv) of the issuance by the Commission of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceedings for that purpose and (v) of any
notification with respect to any suspension of the qualification of the Notes
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and will use its best efforts to prevent the
issuance of any such stop order or suspension and, if any is issued, will use
its best efforts to obtain the withdrawal thereof as soon as possible.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act, the Issuer will
promptly notify the Underwriter and prepare and file with the Commission an
amendment or a supplement that will correct such statement or omission or effect
such compliance. Any such filing shall not operate as a waiver or limitation of
any right of the Underwriter hereunder.
(e) The Issuer will endeavor to qualify the Offered Notes for offer and
sale under the securities or blue sky laws of such jurisdictions as the
Underwriter shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Offered Notes;
provided, however, that the Underwriter shall not be obligated to qualify to do
business in any jurisdiction in which it is currently not so qualified; and
provided, further, that the Issuer shall not be required to qualify to do
business in any jurisdiction where it is not now qualified.
(f) The Issuer will furnish to the Underwriter, without charge, two
copies of the Registration Statement (including exhibits thereto), one of which
will be signed during the prospectus delivery period, and as many copies of the
Prospectus and any supplement thereto as the Underwriter may reasonably request.
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(g) For a period from the date of this Underwriting Agreement until the
retirement of the Notes, or until such time as the Underwriter shall cease to
maintain a secondary market in the Notes, whichever first occurs, the Issuer
will deliver to the Underwriter, (i) the annual statements of compliance
furnished to the Indenture Trustee, (ii) the annual independent certified public
accountants' reports furnished to the Indenture Trustee, (iii) all documents
required to be distributed to the Noteholders, (iv) all documents filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder, in each case as provided to the Indenture Trustee or filed with the
Commission, as soon as such statements and reports are furnished to the
Indenture Trustee or filed or as soon thereafter as practicable, (v) any order
of the Commission under the Securities Act or the Exchange Act in regard to the
Issuer or to GreatAmerica with respect to the Issuer, or pursuant to a "no
action" letter obtained from the staff of the Commission by the Issuer or
GreatAmerica with respect to the Issuer and affecting the Issuer or GreatAmerica
and (vi) from time to time, such other information concerning the Issuer as the
Underwriter, may reasonably request.
(h) To the extent, if any, that the rating provided with respect to the
Offered Notes by the rating agency or agencies that initially rate the Offered
Notes is conditional upon the furnishing of documents or the taking of any other
actions by the Issuer, the Issuer shall furnish such documents and take any such
other actions.
(i) If required by the Securities Act or the rules of the Commission
promulgated thereunder, the Issuer will cause the Indenture Trustee to make
generally available to Noteholders and to the Underwriter, as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter occurring after the Effective Date of
the Registration Statement, which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission promulgated thereunder if
then applicable.
(j) For a period of 90 days from the date hereof, the Issuer will not
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering of,
any securities collateralized by, or evidencing an ownership interest in, any
asset-backed securities of the Issuer (other than the Offered Notes purchased
hereunder and the Non-Offered Notes) without the prior written consent of the
Underwriter.
SECTION 7. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS.
The obligations of the Underwriter hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Issuer and GreatAmerica contained herein, to the accuracy of
the statements of the Issuer and GreatAmerica made in any certificates pursuant
to the provisions hereof, to the performance by the Issuer and GreatAmerica of
their respective obligations hereunder and to each of the following additional
terms and conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 in the manner and within the applicable time period prescribed for
such filing by the rules and regulations of the Commission under the Securities
Act and in accordance with Section 6(a) of
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this Underwriting Agreement, and the Underwriter shall have received
confirmation of the effectiveness of the Registration Statement; and, prior to
the Closing Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceedings for such
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information from the Commission with respect to the
Registration Statement shall have been complied with to the reasonable
satisfaction of the Underwriter.
(b) The Underwriter, shall have received evidence satisfactory to it
that the Class A-1 Notes shall be rated "A-1+" by S&P, "F1+/AAA" by Fitch and
"P-1" by Moody's, the Class A-2 Notes shall be rated no lower than "AAA" by S&P,
"AAA" by Fitch and "Aaa" by Moody's, the Class A-3 Notes shall be rated no lower
than "AAA" by S&P, "AAA" by Fitch and "Aaa" by Moody's, the Class A-4 Notes
shall be rated no lower than "AAA" by S&P, "AAA" by Fitch and "Aaa" by Moody's,
the Class B Notes shall be rated no lower than "AA" by S&P, "AA" by Fitch and
"Aa2" by Moody's, the Class C Notes shall be rated no lower than "A" by S&P, "A"
by Fitch and "A2" by Moody's and the Class D Notes shall be rated no lower than
"BBB" by S&P and "BBB" by Fitch.
(c) (i) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Underwriting Agreement, the
Transaction Documents, the Notes, the Registration Statement, the Preliminary
Prospectus and the Prospectus, and all other legal matters relating to such
agreements and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the Underwriter,
and the Issuer shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters and (ii) prior to or contemporaneously with the purchase of Notes
hereunder, all transactions contemplated to be consummated under such
Transaction Documents on the Closing Date (including, without limitation, the
issuance and placement of any subordinated, privately-placed securities) shall
have been so consummated to the reasonable satisfaction of the Underwriter.
(d) Chapman and Cutler shall have furnished to the Underwriter their
written opinions, as counsel to GreatAmerica and the Issuer, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter.
(e) Paul Gamez, in-house counsel to GreatAmerica and the Issuer, shall
have furnished his written opinion, addressed to the Underwriter and dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(f) Chapman and Cutler shall have furnished to the Underwriter their
written opinions, as counsel to the Issuer and GreatAmerica, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee), with respect to the (i) characterization of the transfer of the
Contract Assets by GreatAmerica to the Issuer pursuant to the Transfer and
Servicing Agreement as a sale, (ii) the nonrejection of leases by the bankruptcy
trustee of the Issuer under Section 365 of
11
the Bankruptcy Code and (iii) such other opinions agreed to by the Issuer,
GreatAmerica and the Underwriter.
(g) Chapman and Cutler shall have furnished to the Underwriter their
written opinion, as counsel to GreatAmerica and the Issuer, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee) that, with respect to the insolvency of GreatAmerica, neither the
Issuer nor its assets would be consolidated with GreatAmerica.
(h) Chapman and Cutler shall have furnished to the Underwriter their
written opinion, as special tax counsel to GreatAmerica and the Issuer,
addressed to the Underwriter and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter (which opinion will also be delivered
to the Rating Agencies, all of whom shall be entitled to rely on such opinion as
if an addressee) substantially to the effect set forth on Annex A.
(i) Thacher Proffitt & Wood shall have furnished to the Underwriter
their written opinion, as special counsel to the Indenture Trustee, addressed to
the Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee) substantially to the effect set forth on Annex B.
(j) The Underwriter shall have received from Moore & Van Allen, PLLC,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Underwriter may require, and the Issuer
shall have furnished to such counsel such documents as they reasonably request
for enabling them to pass upon such matters.
(k) The Underwriter shall have received from the Issuer, copies of any
opinions of counsel to GreatAmerica and the Issuer supplied to the Rating
Agencies. Any such opinions shall be dated the Closing Date and either addressed
to the Underwriter or accompanied by reliance letters addressed to the
Underwriter.
(l) Both of the Issuer and GreatAmerica shall have furnished to the
Underwriter a certificate, dated the Closing Date, of any of its Chairman of the
Board, President, Executive Vice President or Vice President and its chief
financial officer stating that (i) such officers have carefully examined the
Registration Statement and the Prospectus, (ii) the Prospectus does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (provided that each of the Issuer and GreatAmerica may exclude the
Underwriter's Information (as defined in Section 9(d) herein) from such
representation), (iii) the representations and warranties of GreatAmerica or the
Issuer, as the case may be, contained in this Underwriting Agreement and the
Transaction Documents are true and correct in all material respects on and as of
the Closing Date, (iv) GreatAmerica or the Issuer, as the case may be, have
complied in all material respects with all agreements and satisfied in all
material respects all conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the Closing Date, (v) no stop
order suspending the
12
effectiveness of the Registration Statement has been issued and is outstanding
and no proceedings for that purpose have been instituted and not terminated or,
to the best of his or her knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements, there has been no
material adverse change in the financial position or results of operations of
GreatAmerica or the Issuer, as applicable, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations or business of GreatAmerica or the Issuer, except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(m) The Indenture Trustee shall have furnished to the Underwriter a
certificate of the Indenture Trustee, signed by one or more duly authorized
officers of the Indenture Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of the Indenture by the Indenture Trustee
and the acceptance by the Indenture Trustee of the Pledged Assets and such other
matters as the Underwriter shall reasonably request.
(n) Subsequent to the date of this Underwriting Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or prospects of the Issuer or
GreatAmerica that, in the judgment of the Underwriter, materially impairs the
investment quality of the Notes or makes it impractical to market the Notes;
(ii) any suspensions or limits of trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the over-the-counter market
or minimum prices shall have been established on either of such exchanges or
such market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
state authorities; or (iv) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the Underwriter,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Prospectus.
(o) With respect to the letter of Deloitte & Touch LLP, delivered to
the Underwriter, concurrently with the execution of this Underwriting Agreement
(the "initial letter"), the Issuer shall have furnished to the Underwriter, a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriter and dated the Closing Date (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of such bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by its initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in its initial letter.
(p) The Underwriter shall receive evidence satisfactory to it that, on
or before the Closing Date, UCC-l financing statements have been or are being
filed in each office in those
13
states in which such financing statements are required (i) to perfect the first
priority security interests created by the Transfer and Servicing Agreement
reflecting the interest of the Issuer in the Contract Assets and the proceeds
thereof and (ii) to perfect the first priority security interest created by the
Indenture, reflecting the interest of the Indenture Trustee in the Pledged
Assets and the proceeds thereof as described in the Prospectus.
(q) Subsequent to the execution and delivery of this Underwriting
Agreement, (i) no downgrade, withdrawal or qualification shall have occurred
with respect to the rating accorded the Notes or any of GreatAmerica's other
debt securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement may
be terminated by the Underwriter by notice to the Issuer at any time at or prior
to the Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 9.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriter.
SECTION 8. PAYMENT AND EXPENSES.
If (i) the Issuer shall fail to tender the Notes for delivery to the
Underwriter for any reason not permitted under this Underwriting Agreement or
(ii) the Underwriter shall decline to purchase the Notes for any reason
permitted under this Underwriting Agreement, the Issuer shall reimburse the
Underwriter for the fees and expenses of its counsel and for such other
out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Underwriting Agreement and the proposed purchase of the
Notes, and upon demand the Issuer shall pay the full amount thereof to the
Underwriter.
SECTION 9. INDEMNIFICATION.
(a) GreatAmerica and the Issuer shall, jointly and severally, indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Securities Act against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Underwriter may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement as originally filed or
in any amendment thereof or supplement thereto, or in any Preliminary Prospectus
or the Prospectus or in any amendment thereof or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse the Underwriter for any legal or other expenses reasonably
incurred by the
14
Underwriter in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that neither GreatAmerica nor the Issuer shall be liable (i) in any
such case, to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any Registration Statement as originally
filed or in any amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto
in reliance upon and in conformity with the Underwriter's Information (as
defined in Section 9(d) herein); or (ii) if such statement or omission was
contained or made in any Preliminary Prospectus and corrected in the Prospectus
and (1) any such loss, claim, damage or liability suffered or incurred by the
Underwriter (or any person who controls the Underwriter) resulted from an
action, claim or suit by any person who purchased Offered Notes which are the
subject thereof from the Underwriter in the Offering and (2) the Underwriter
failed to deliver or provide a copy of the Prospectus to such person prior to
the confirmation of the sale of such Offered Notes in any case where such
delivery is required by the Securities Act.
(b) The Underwriter shall indemnify and hold harmless GreatAmerica and
the Issuer, against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which GreatAmerica and the Issuer or any one
or more thereof may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriter's Information (as defined in Section 9(d)
herein), and shall reimburse GreatAmerica and the Issuer for any legal or other
expenses reasonably incurred by GreatAmerica or the Issuer directly in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim, damage
or liability (or any action in respect thereof) as such expenses are incurred.
(c) Promptly after receipt by any indemnified party under this Section
9 of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 9, except to the extent it has
been materially prejudiced by such failure; and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate
15
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it that are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriter, if the indemnified
parties under this Section 9 consist of the Underwriter or any of its directors
and controlling persons, or by GreatAmerica or the Issuer, if the indemnified
parties under this Section 9 consist of GreatAmerica or the Issuer or any of the
Issuer's or GreatAmerica's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 9(a) and (b), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent, but if settled with its written consent or
if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) The Underwriter confirms that the Underwriter's Information, as
defined herein, contained in the Prospectus is correct and constitutes the only
information furnished in writing to the Issuer and GreatAmerica by or on behalf
of the Underwriter specifically for inclusion in the Registration Statement and
the Prospectus. The "Underwriter's Information" includes the following under the
caption "Plan of Distribution": (i) the chart listing the Underwriter of the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes
and the Class B Notes, (ii) the paragraph immediately following the chart
described in clause (i), and (iii) the charts listing the Underwriter's Selling
Concession and Reallowance Concession.
16
(e) The obligations of GreatAmerica, the Issuer and the Underwriter in
this Section 9 are in addition to any other liability that GreatAmerica, the
Issuer or the Underwriter, as the case may be, may otherwise have.
SECTION 10. CONTRIBUTION.
If the indemnification provided for in Section 9 is unavailable or
insufficient to hold harmless an indemnified party under Section 9(a) or (b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or any action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by GreatAmerica and the Issuer on the one hand and the
Underwriter on the other from the offering of the Offered Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of GreatAmerica and
the Issuer on the one hand and the Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or any action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by GreatAmerica and the Issuer on
the one hand and the Underwriter on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Notes purchased hereunder (before deducting expenses)
received by the Issuer bear to the total underwriting discounts and commissions
received by the Underwriter with respect to the Offered Notes purchased
hereunder, in each case as set forth in the table under the caption "Plan of
Distribution" in the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by GreatAmerica or the Issuer on the one hand or
the Underwriter on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. GreatAmerica, the Issuer and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
Section 10 were to be determined by pro rata allocation (even if the Underwriter
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability referred to above in this Section 10 shall be
deemed to include for purposes of this Section 10, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim or any action. Notwithstanding the provisions of
this Section 10, the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Notes underwritten
by it and distributed to the public were offered to the public less the amount
of any damages that the Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
17
SECTION 11. TERMINATION OF AGREEMENT.
The Underwriter may terminate this Underwriting Agreement immediately
upon notice to GreatAmerica and the Issuer, at any time at or prior to the
Closing Date if any of the events or conditions described in Section 7(k) of
this Underwriting Agreement shall occur and be continuing. In the event of any
such termination, the covenants set forth in Section 6, the provisions of
Section 9, the indemnity agreement set forth in Section 9 and the provisions of
Sections 10 and this Section 11 shall remain in effect.
SECTION 12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Underwriting Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Issuer, GreatAmerica and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Issuer and GreatAmerica and their respective
successors and the controlling persons and officers and directors, and their
heirs and legal assigns, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or any provision contained herein.
SECTION 13. EXPENSES.
The Issuer and GreatAmerica, jointly and severally, agree with the
Underwriter to pay (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Offered Notes and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus and the
Prospectus, all as provided in this Underwriting Agreement; (iv) the costs of
reproducing and distributing this Underwriting Agreement and any other
underwriting and selling group documents by mail, telex or other means of
communications; (v) the fees and expenses of qualifying the Offered Notes under
the securities laws of the several jurisdictions as provided in Section 6(e) and
of preparing, printing and distributing "blue sky memoranda" and "legal
investment surveys" (including the related reasonable and documented fees and
expenses of counsel to the Underwriter; provided, however, that if the
transaction is successfully closed and the Notes are delivered to the
Underwriter, the Underwriter shall be responsible for paying to its counsel an
amount equal to the lesser of (1) 50% of such counsel's fee or (2) $75,000; any
amount in excess thereof shall be the obligation of the Issuer and
GreatAmerica); (vi) any fees charged by the Rating Agencies for rating the
Offered Notes; (vii) all fees and expenses of the Indenture Trustee and its
counsel; (viii) any transfer taxes payable in connection with its sale of the
Offered Notes pursuant to this Underwriting Agreement; and (ix) all other costs
and expenses incident to the performance of the obligations of the Issuer and
GreatAmerica under this Underwriting Agreement.
18
SECTION 14. SURVIVAL.
The respective indemnities, rights of contribution, representations,
warranties and agreements of the Issuer, GreatAmerica and the Underwriter
contained in this Underwriting Agreement or made by or on their behalf,
respectively, pursuant to this Underwriting Agreement, shall survive the
delivery of and payment for the Offered Notes and shall remain in full force and
effect, regardless of any termination or cancellation of this Underwriting
Agreement or any investigation made by or on behalf of any of them or any person
controlling any of them.
SECTION 15. NOTICES.
All communication hereunder shall be in writing and, (i) if sent to the
Underwriter will be mailed, delivered or telecopied and confirmed to them at
First Union Securities, Inc., Asset Securitization Division, One First Union
Center, Mail Code: NC0610, 301 South College Street, Charlotte, North Carolina,
28288-0610, Telecopy Number: (704) 374-3254; if sent to the Issuer, will be
mailed, delivered or telecopied and confirmed to them at the addresses of the
Issuer set forth in the Registration Statement, Attention: Senior Vice President
and Chief Financial Officer; and (iii) if sent to GreatAmerica, will be mailed,
delivered or telecopied and confirmed to them at the address of GreatAmerica set
forth in the Registration Statement, Attention: Chief Financial Officer. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof. The Issuer and GreatAmerica shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Underwriter.
SECTION 16. GOVERNING LAW, JURY WAIVER.
(a) THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK; AND
(b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PERSON HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 16(b).
SECTION 17. COUNTERPARTS.
This Underwriting Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall, together constitute one and the same instrument.
19
SECTION 18. HEADINGS.
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Underwriting Agreement.
SECTION 19. EFFECTIVENESS.
This Underwriting Agreement shall become effective upon execution and
delivery.
20
If you are in agreement with the foregoing, please sign the counterpart
hereof and return it to the Issuer, whereupon this letter and your acceptance
shall become a binding agreement among the Issuer, GreatAmerica and the
Underwriter.
Very truly yours,
GREATAMERICA LEASING RECEIVABLES 2002-1, L.L.C.
By: GreatAmerica Leasing Corporation, as member
By:
----------------------------------------
Name:
Title:
GREATAMERICA LEASING CORPORATION
By:
----------------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date hereof.
FIRST UNION SECURITIES, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
21
SCHEDULE A
Date of Underwriting Agreement: March 1, 2002
Underwriter: First Union Securities, Inc.
Underwriter Address: First Union Securities, Inc.
One First Union Center, Mail Code: NC0610
301 South College Street
Charlotte, NC 28288-0610
Title, Purchase Price and Description of Notes:
Class A-1 Notes
---------------
Title: _________% Class A-1 Receivable-Backed Notes, Series 2002-1
Price to public: 100.00000%
Purchase price: _________%
Underwriting discount: _________%
Payment Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
April 15, 2002
Maturity: April 15, 2003 Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed in whole, but not
in part, on any Payment Date at the Issuer's option if the
Pool Balance at such time is less than 15% of the Original
Pool Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in full on
any Payment Date if the aggregate amounts on deposit in the
Collection Account, the Reserve Fund, the Residual Account
and the Payahead Account are greater than or equal to the
sum of (i) the entire outstanding note principal balance,
(ii) the interest accrued thereon, (iii) any accrued and
unpaid Servicing Fee (including therein amounts owed to the
Indenture Trustee) and (iv) unreimbursed Servicer Advances.
22
Class A-2 Notes
---------------
Title: _________% Class A-2 Receivable-Backed Notes, Series 2002-1
Price to public: _________%
Purchase price: _________%
Underwriting discount: _________%
Payment Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
April 15, 2002
Maturity: November 15, 2003 Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed in whole, but not
in part, on any Payment Date at the Issuer's option if the
Pool Balance at such time is less than 15% of the Original
Pool Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in full on
any Payment Date if the aggregate amounts on deposit in the
Collection Account, the Reserve Fund, the Residual Account
and the Payahead Account are greater than or equal to the
sum of (i) the entire outstanding note principal balance,
(ii) the interest accrued thereon, (iii) any accrued and
unpaid Servicing Fee (including therein amounts owed to the
Indenture Trustee) and (iv) unreimbursed Servicer Advances.
Class A-3 Notes
---------------
Title: _________% Class A-3 Receivable-Backed Notes, Series 2002-1
Price to public: _________%
Purchase price: _________%
Underwriting discount: _________%
Payment Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day),
commencing April 15, 2002
Maturity: November 15, 2005 Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed in whole, but not
in part, on any Payment Date at the Issuer's option if the
Pool Balance at such time is less than 15% of the Original
Pool Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in full on
any Payment Date if the aggregate amounts on deposit in the
Collection Account, the Reserve
23
Fund, the Residual Account and the Payahead Account are
greater than or equal to the sum of (i) the entire outstanding
note principal balance, (ii) the interest accrued thereon,
(iii) any accrued and unpaid Servicing Fee (including therein
amounts owed to the Indenture Trustee) and (iv) unreimbursed
Servicer Advances.
Class A-4 Notes
---------------
Title: _________% Class A-4 Receivable-Backed Notes, Series 2002-1
Price to public: _________%
Purchase price: _________%
Underwriting discount: _________%
Payment Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
April 15, 2002
Maturity: November 15, 2006 Payment Date
Redemption provisions: Notes remaining outstanding may be redeemed in whole, but not
in part, on any Payment Date at the Issuer's option if the
Pool Balance at such time is less than 15% of the initial
Original Pool Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in full on
any Payment Date if the aggregate amounts on deposit in the
Collection Account, the Reserve Fund, the Residual Account
and the Payahead Account are greater than or equal to the
sum of (i) the entire outstanding note principal balance,
(ii) the interest accrued thereon, (iii) any accrued and
unpaid Servicing Fee (including therein amounts owed to the
Indenture Trustee) and (iv) unreimbursed Servicer Advances.
Class B Notes
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Title: _________% Class B Receivable-Backed Notes, Series 2002-1
Price to public: _________%
Purchase price: _________%
Underwriting discount: _________%
Payment Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day),
commencing April 15, 2002
Maturity: June 15, 2007 Payment Date
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Redemption provisions: Notes remaining outstanding may be redeemed in whole, but not
in part, on any Payment Date at the Issuer's option if the
Pool Balance at such time is less than 15% of the Original
Pool Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in full on
any Payment Date if the aggregate amounts on deposit in the
Collection Account, the Reserve Fund, the Residual Account
and the Payahead Account are greater than or equal to the
sum of (i) the entire outstanding note principal balance,
(ii) the interest accrued thereon, (iii) any accrued and
unpaid Servicing Fee (including therein amounts owed to the
Indenture Trustee) and (iv) unreimbursed Servicer Advances.
Closing Date, Time and Location:
Date: March ____, 2002
Time: 9:00 a.m.
Location: Moore & Van Allen, PLLC
100 North Tryon Street, Suite 4700
Charlotte, NC 28202-4003
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ANNEX A
(i) The Issuer will not be subject to the Business Tax on
Corporations imposed by the State of Iowa under Chapter 422.32 of the
Iowa code or to the Iowa Business Corporation Act under Chapter 490.101
of the Iowa Code.
(ii) Noteholders that are not otherwise subject to income
taxation by the State of Iowa will not become subject to income
taxation by the State of Iowa solely as a result of their ownership of
Notes.
ANNEX B
(i) The Indenture Trustee is a banking corporation with trust
powers, duly and validly existing and in good standing under the laws
of the state of New York, with full power and authority (corporate and
other) to execute, deliver and perform its obligations under the
Transaction Documents to which it is a party and to act as Indenture
Trustee.
(ii) The Transaction Documents to which the Indenture Trustee
is a party have been duly authorized, executed and delivered by the
Indenture Trustee.
(iii) There are no actions, suits or proceedings pending or,
to the best of such counsel's knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal, state,
municipal or other governmental department, commission, board, bureau
or governmental agency or instrumentality, or arbitrator which would,
if adversely determined, affect in any material respect the
consummation, validity or enforceability against the Indenture Trustee
of any of the Transaction Documents to which it is a party.
(iv) The Notes have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
(v) Each of the Transaction Documents to which the Indenture
Trustee is a party constitute a legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms, except that certain of such obligations may
be enforceable only against the Pledged Assets and except that such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidator or similar laws offering the enforcement of
creditors' rights generally, and by general principles of equity,
including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding at equity or at law).
(vi) The execution and delivery of the Transaction Documents
to which the Indenture Trustee is a party by the Indenture Trustee and
the performance by the Indenture Trustee of their terms do not conflict
with or result in a violation of (x) any law or regulation of the
United States of America or the state of New York governing the banking
or trust powers of the Indenture Trustee or (y) the organization
certificate or by-laws of the Indenture Trustee or, to such counsel's
knowledge, any order, writ, injunction or decree of any court or
governmental authority against the Indenture Trustee or by which it or
any of its properties is bound or, to such counsel's knowledge, any
indenture, mortgage or contract or other agreement or instrument to
which the Indenture Trustee is a party or by which it or any of its
properties is bound, or results in the creation or imposition of any
lien, charge or encumbrance upon any of its properties pursuant to any
agreement or instrument, except encumbrances and security interests
contemplated by the Transaction Documents to which it is a party.
(vii) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers
of the Indenture Trustee is required in connection with the execution
and delivery by the Indenture Trustee of the Transaction Documents to
which the Indenture Trustee is a party or the performance by the
Indenture Trustee thereunder.
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