EXHIBIT 1.1
NEWCOURT RECEIVABLES CORPORATION II (Trust Depositor)
NEWCOURT FINANCIAL USA INC.(Servicer)
UNDERWRITING AGREEMENT
November __1997
First Union Capital Markets Corp.
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Newcourt Receivables Corporation II, a Delaware corporation (the
"Trust Depositor"), proposes to cause Newcourt Receivables Asset Trust 1997-1
(the "Trust") to issue the asset backed notes identified in Schedule I hereto
(the "Notes"). The Notes will be issued pursuant to and secured by an indenture
(the "Indenture") to be entered into between Manufacturers and Traders Trust
Company as trustee (the "Indenture Trustee"), the form of which has been filed
as an exhibit to the Registration Statement (as defined below). The Notes
identified in Schedule I hereto will be sold in a public offering through the
underwriters listed in Schedule II hereto, one or more of which may act as
representative of such underwriters (any underwriter through which Notes are
sold shall be referred to herein as an "Underwriter" or, collectively, all such
Underwriters may be referred to as the "Underwriters"; any representatives
thereof may be referred to herein as a "Representative"). To the extent not
defined herein, capitalized terms used herein have the meanings assigned to
such terms in the Sale and Servicing Agreement among the Trust Depositor, the
Trust, the Indenture Trustee and Newcourt Financial USA Inc. as Servicer (the
"Servicer") dated as of _________ __, 1997.
Section 1. REPRESENTATIONS AND WARRANTIES. The Trust Depositor and the
Servicer represent and warrant to each Underwriter that:
(a) The Trust Depositor has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-1 (registration number 333-36059),
including a form of prospectus, relating to the Notes.
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The registration statement, and any post-effective amendment thereto, each
in the form heretofore delivered to you and, excluding exhibits thereto,
have been declared effective by the Commission. As used in this Agreement,
"Effective Time" means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any,
was declared effective by the Commission and "Effective Date" means the
date of the Effective Time. The Trust Depositor has furnished to you, for
use by the Underwriters, copies of one or more preliminary prospectuses
(each, a "Preliminary Prospectus"), relating to the Notes. Except where
the context otherwise requires, the registration statement, as amended at
the Effective Time, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed
with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement as of the Effective Time pursuant to
Rule 430A under the Act, is herein called the "Registration Statement",
and the prospectus, in the form filed by the Trust Depositor with the
Commission pursuant to Rule 424(b) under the Act or, if no such filing is
required, the form of final prospectus included in the Registration
Statement at the time it became effective, is hereinafter called the
"Prospectus";
(b) The Registration Statement relating to the Notes, has been filed
with the Commission and such Registration Statement has become effective.
No stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Trust Depositor or the Servicer, threatened by the
Commission;
(c) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment thereto, as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, and as of the Closing
Date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Indenture Trustee under the Trust
Indenture Act or (ii) any Underwriters' Information (as defined in Section
10(b) hereof) contained therein. The Indenture conforms in all respects
to the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder.
(d) The representations and warranties of the Trust Depositor in
Section 3.01 of the Sale and Servicing Agreement will be true and correct
as of the Closing Date.
(e) The representations and warranties of the Servicer in Section 3.02
of the Sale and Servicing Agreement will be true and correct as of the
Closing Date.
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(f) The Servicer and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power or authority could not have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise), results
of operations, business or prospects of the Servicer and its subsidiaries
taken as a whole.
(g) All the outstanding shares of capital stock of the Trust Depositor
have been duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Registration
Statement, are owned by Newcourt Credit Group Inc. ("Newcourt") directly
or indirectly through one or more wholly-owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(h) (i) the Sale and Servicing Agreement, when duly executed by the
Trust Depositor and the Servicer and delivered by such parties, will
constitute a valid and binding agreement of the Trust Depositor and the
Servicer enforceable against them in accordance with its terms; (ii) the
Indenture, when duly executed by the Indenture Trustee and delivered by
the Indenture Trustee, will constitute a valid and binding agreement of
the Trust enforceable against the Trust in accordance with its terms;
(iii) the Notes, when duly executed, authenticated, issued and delivered
as provided in the Indenture, will be duly and validly issued and
outstanding and will constitute valid and binding obligations of the Trust
entitled to the benefits of the Indenture and enforceable in accordance
with its terms; and (iv) the Indenture, the Sale and Servicing Agreement,
the Trust Agreement between the Trust Depositor and Chase Manhattan Bank
Delaware, as Owner Trustee and the Transfer and Sale Agreement between
Newcourt Financial USA Inc. as the Seller, and the Trust Depositor
(collectively, the "Transaction Agreements") and the Notes conform to the
descriptions thereof contained in the Prospectus.
(i) The execution, delivery and performance of this Agreement, the
Transaction Agreements to which the Servicer or its subsidiary, as the
case may be, is a party and the issuance and sale of the Notes, the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Servicer or any of its subsidiaries is a party or by which the
Servicer or any of its subsidiaries is bound or to which any of the
property or assets of the Servicer or any of its subsidiaries is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws of the Servicer or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body
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having jurisdiction over the Servicer or any of its subsidiaries or any
of their properties or assets; and except for the registration of the
Notes under the Securities Act, the qualification of the Indenture
under the Trust Indenture Act, such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing of any
financing statements required to perfect the Trust's interest in the Trust
Assets, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement or
the Transaction Agreements, the issuance and sale of the Notes and the
consummation of the transactions contemplated hereby and thereby.
(j) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act and which have not been so described or
filed.
(k) There are no legal or governmental proceedings pending to which
the Servicer or any of its subsidiaries is a party or of which any property
or assets of the Servicer or any of its subsidiaries is the subject which,
individually or in the aggregate, if determined adversely to the Servicer
or any of its subsidiaries, are reasonably likely to have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Servicer and its subsidiaries
taken as a whole; and to the best of the Servicer's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(l) Neither the Servicer nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) is in violation in any
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject, except any
violation or default that could not have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a whole.
(m) This Agreement has been duly authorized, executed and delivered by
each of the Trust Depositor and the Servicer; and
(n) Neither the Trust nor the Trust Depositor is required to be
registered under the Investment Company Act of 1940, as amended.
Section 2. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, the Trust
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Depositor agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust Depositor, the
principal amount of Notes set forth opposite such Underwriter's name in
Schedule II hereto. The purchase price for the Notes shall be as set forth in
Schedule I hereto.
Section 3. DELIVERY AND PAYMENT. Payment for the Notes shall be made to
the Trust Depositor or to its order by wire transfer of same day funds at the
office of Winston & ▇▇▇▇▇▇ in Chicago, Illinois at 9:00 A.M., Illinois time,
on the Closing Date (as hereinafter defined), or at such other time on the
same or such other date as the Representative and the Trust Depositor may
agree upon. The time and date of such payment for the Notes as specified in
Schedule I hereto are referred to herein as the "Closing Date." As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in
writing not later than two full Business Days prior to the Closing Date. The
Trust Depositor shall make the Notes available for inspection by the
Representative in New York, New York not later than one full Business Day prior
to the Closing Date.
Section 4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Prospectus.
Section 5. COVENANTS OF THE TRUST DEPOSITOR. The Trust Depositor covenants
and agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representative
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act.
(b) During the period that a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with sales
of such Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"), before filing any amendment or supplement
to the Registration Statement or the Prospectus, the Trust Depositor will
furnish to the Representative a copy of the proposed amendment or
supplement for review and will not file any such proposed amendment or
supplement to which the Representative reasonably objects.
(c) During the prospectus delivery period, the Trust Depositor will
advise the Representative promptly after it receives notice thereof, (i)
when any amendment to the Registration Statement shall have become
effective; (ii) of any request by the
First Union Capital Markets Corp. 6
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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 promptly use its best efforts to
obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply with
the Securities Act, the Trust Depositor promptly will prepare and file
with the Commission, an amendment or a supplement which will correct such
statement or omission or effect such compliance.
(e) The Trust Depositor will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the Notes; PROVIDED, HOWEVER, that the Trust Depositor shall not be obli
gated to qualify to do business in any jurisdiction in which it is not
currently so qualified; and PROVIDED, FURTHER, that the Trust Depositor
shall not be required to file a general consent to service of process in
any jurisdiction.
(f) The Trust Depositor will furnish to the Representative, without
charge, two copies of the Registration Statement (including exhibits
thereto), one of which will be signed, and to each Underwriter conformed
copies of the Registration Statement (without exhibits thereto) and,
during the prospectus delivery period. as many copies of any Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever first occurs, the
Trust Depositor will deliver to the Underwriters (i) the annual statements
of compliance, (ii) the annual independent certified public accountants'
reports furnished to the Indenture Trustee, (iii) all documents required
to be distributed to Noteholders of the Trust and (iv) all documents filed
with the Commission pursuant to the Exchange Act or any order of the Com
mission 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.
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(h) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other
actions by the Trust Depositor, the Trust Depositor shall furnish such
documents and take any such other actions.
(i) The Trust Depositor will cause the Trust to make generally
available to Noteholders and to the Representative as soon as practicable
an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after the
Effective Date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Com
mission promulgated thereunder.
(j) For a period of 90 days from the date hereof, the Trust Depositor
will not offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce
any offering of, any securities collateralized by, or evidencing an
ownership interest in, any asset-backed securities of the Trust Depositor
or the Trust (other than the Notes purchased hereunder) without the prior
written consent of the Underwriters.
Section 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
respective obligations of the several Underwriters hereunder are subject to
the accuracy, when made and on the Closing Date, of the representations and
warranties of the Trust Depositor and the Servicer contained herein, to the
accuracy of the statements of the Trust Depositor and the Servicer made in
any certificates pursuant to the provisions hereof, to the performance by the
Trust Depositor and the Servicer of their respective obligations hereunder
and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 in the manner and within the applicable time period prescribed
for such filing by the rules and regulations of the Commission under the
Securities Act and in accordance with Section 5(a) of this Agreement; and,
prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceedings for such purpose shall have been initiated or threatened by
the Commission; and all requests for additional information from the
Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Transaction
Agreements, the Notes, the Registration Statement, the Preliminary
Prospectus and the Prospectus, and all other legal matters relating to
such agreements and the transactions contemplated hereby and thereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Trust Depositor shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters and (ii) prior to or contemporaneously with
the purchase of Notes hereunder, all transactions contemplated to be
consummated under such Transaction
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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 Underwriters.
(c) Winston & ▇▇▇▇▇▇ shall have furnished to the Representative their
written opinion, as U.S. counsel to the Trust Depositor and the Servicer,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(d) (x) [▇▇▇▇ ▇▇▇▇▇▇▇▇▇] shall have furnished to the Representative
his written opinion, as [Secretary] to the Servicer, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and (y) ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have
furnished to the Representative his written opinion, as General Counsel to
the Servicer, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters.
(e) Winston & ▇▇▇▇▇▇ shall have furnished to the Representative their
written opinion, as U.S. counsel to the Trust Depositor and the Servicer,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, with respect to the
characterization of the transfer of the Assets by the Seller to the Trust
Depositor pursuant to the Transfer and Sale Agreement as a sale and the
non-consolidation of the Trust Depositor and the Servicer.
(f) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Underwriters may
require, and the Trust Depositor shall have furnished to such counsel such
documents as they reasonably request for enabling them to pass upon such
matters.
(g) (i) ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Goodyear shall have furnished
to the Representative their written opinion, as counsel to the Indenture
Trustee, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriters and (ii) Pryon,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have furnished to the Representative their
written opinion, as counsel to the Owner Trustee, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(h) Each of the Trust Depositor and the Servicer shall have furnished
to the Representative a certificate, dated the Closing Date, of any of its
Chairman of the Board, President or Vice President and its chief financial
officer stating that (i) such officers have carefully examined the
Registration Statement and the Prospectus, (ii) the Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading (provided that each of the Trust Depositor and
the Servicer may exclude Underwriters' Information (as defined herein)
from such representation), (iii) the representations and
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warranties of the Servicer or the Trust Depositor, as the case may be,
contained in this Agreement and the Transaction Agreements are true and
correct in all material respects on and as of the Closing Date, (iv) the
Servicer or the Trust Depositor, as the case may be, has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied hereunder
and under such agreements at or prior to the Closing Date, (v) no stop
order suspending the effectiveness of the Registration Statement has been
issued and is outstanding and no proceedings for that purpose have been
instituted and not terminated or, to the best of his or her knowledge, are
contemplated by the Commission, and (vi) since the date of its most recent
financial statements, there has been no material adverse change in the
financial position or results of operations of the Servicer or the Trust
Depositor, as applicable, or the Trust or any change, or any development
including a prospective change, in or affecting the condition (financial or
otherwise), results of operations or business of the Servicer or the Trust
Depositor or the Trust except as set forth in or contemplated by the
Registration Statement and the Prospectus.
(i) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Trust Depositor or the Servicer which materially impairs the investment
quality of the Notes; (ii) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the over-the-counter market
shall have been suspended or limited, or minimum prices shall have been
established on either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Trust Depositor or
the Servicer on any exchange or in the over-the-counter market shall have
been suspended or (iii) a general moratorium on commercial banking
activities shall have been declared by Federal or New York State
authorities or (iv) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Representative, impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the
manner contemplated in the Prospectus.
(j) With respect to the letter of Ernst & Young LLP, delivered to the
Underwriters concurrently with the execution of this Agreement (the
"initial letter"), the Trust Depositor shall have furnished to the
Underwriters a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated the Closing Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualifications of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to
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the date of such bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered
by its initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in its initial letter.
(k) The Underwriters shall receive evidence satisfactory to them that,
on or before the Closing Date, UCC-1 financing statements have been or are
being filed in each office in each jurisdiction in which such financing
statements are required to perfect the first priority security interests
created by the Sale and Servicing Agreement reflecting the interest of the
Trust Depositor in the Receivables and the proceeds thereof.
(l) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Notes or any of
the Trust Depositor's other debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Securities Act 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 or any of
the Trust Depositor's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
Section 7. TERMINATION. The obligations of the Underwriters
hereunder may be terminated by the Representative, in its absolute
discretion, by notice given to and received by the Trust Depositor and the
Servicer prior to delivery of and payment for the Notes if, prior to that
time, any of the events described in Section 6(i) or Section 6(m) shall have
occurred.
Section 8. DEFAULTING UNDERWRITERS. (a) If, on the Closing Date,
any Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements
for the purchase of such Notes by other persons satisfactory to the Trust
Depositor and the Representative, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase the Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date in the respective proportions which the
principal amount of Notes set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule I hereto bears to the aggregate
principal amount of Notes set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule I hereto; PROVIDED, HOWEVER, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
of the Notes on the Closing Date if the aggregate principal amount of Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds one-eleventh of the aggregate principal amount
of the Notes to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter
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shall not be obligated to purchase in total more than 110% of the principal
amount of the Notes which it agreed to purchase on the Closing Date pursuant
to the terms of Section 2. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the
Representative and the Trust Depositor do not elect to purchase the Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Trust Depositor, except that the provisions
of Sections 9 and 13 shall not terminate and shall remain in effect. As used
in this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule I hereto who, pursuant to this Section 8, purchases Notes which a
defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Notes of a defaulting
Underwriter, either the Representative or the Trust Depositor may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Trust Depositor or counsel for the Under
writers may be necessary in the Registration Statement, the Prospectus or in
any other document or arrangement, and the Trust Depositor agrees to file
promptly any amendment or supplement to the Registration Statement or the
Prospectus that effects any such changes.
Section 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (i) the Trust
Depositor shall fail to tender the Notes for delivery to the Underwriters for
any reason permitted under this Agreement or (ii) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement,
the Trust Depositor shall reimburse the Underwriters for the fees and expenses
of their counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and the proposed
purchase of the Notes, and upon demand the Trust Depositor shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 8 by reason of the default of one or more Underwriters, the Trust
Depositor shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
Section 10. INDEMNIFICATION. (a) The Servicer, the Trust
Depositor and Newcourt shall, jointly and severally, indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act (collectively referred
to for the purposes of this Section 10 as the Underwriter) against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which that Underwriter may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or in any
Preliminary Prospectus or the Prospectus or in any amendment thereof or
supplement thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter for
any legal or other expenses reasonably incurred by that Underwriter directly
in connection with investigating or preparing to defend or defending against
or appearing as a
First Union Capital Markets Corp. 12
November __, 1997
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that
neither the Servicer, the Trust Depositor nor Newcourt shall be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any Registration Statement
as originally filed or in any amendment thereof or supplement thereto, or in
any Preliminary Prospectus or the Prospectus or in any amendment thereof or
supplement thereto in reliance upon and in conformity with the Underwriters'
Information.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Trust Depositor, each of its directors, each officer of the
Trust Depositor who signed the Registration Statement and each person, if any,
who controls the Trust Depositor within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the Trust
Depositor), against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Trust Depositor may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof or supplement
thereto, or in any Preliminary Prospectus or the Prospectus or in any amendment
thereof or supplement thereto or (ii) 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 written information
furnished to the Trust Depositor through the Representative by or on behalf of
such Underwriter specifically for use therein (the "Underwriters'
Information"), and shall reimburse the Trust Depositor for any legal or other
expenses reasonably incurred by the Trust Depositor in connection with
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage or liability (or
any action in respect thereof) as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure; and, PROVIDED, FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
First Union Capital Markets Corp. 13
November __, 1997
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that the Representative shall have
the right to employ counsel to represent jointly the Representative and the
other Underwriters (and their respective controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought under this Section 10) if, in the reasonable judgment of the
Representative, it is advisable for the Representative and the other
Underwriters and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate counsel shall
be paid by the Trust Depositor, the Servicer and Newcourt. Each indemnified
party, as a condition of the indemnity agreements contained in Sections 10(a)
and 10(b), shall use all reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No indemnifying party shall
be liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
The obligations of the Servicer, the Trust Depositor, Newcourt and
the Underwriters in this Section 10 are in addition to any other liability
which the Servicer, the Trust Depositor, Newcourt or the Underwriters, as the
case may be, may otherwise have.
Section 11. CONTRIBUTION. If the indemnification provided for in
this Section 11 is unavailable or insufficient to hold harmless an
indemnified party under Section 10(a) or (b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or any action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Servicer, the Trust Depositor and Newcourt on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Servicer, the Trust Depositor and Newcourt on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Servicer, the Trust Depositor and Newcourt
on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes purchased hereunder (before deducting
expenses) received by the Trust Depositor bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Notes purchased hereunder, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Servicer, the Trust
Depositor and Newcourt on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Servicer, the Trust Depositor,
First Union Capital Markets Corp. 14
November __, ▇▇▇▇
▇▇▇▇▇▇▇▇ and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 11 were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability referred to above in this Section 11 shall be deemed to include,
for purposes of this Section 11, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such claim or any action. Notwithstanding the provisions of
this Section 11, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten
by it and distributed to the public were offered to the public less the
amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to indemnify and contribute
as provided in this Section 11 are several in proportion to their respective
underwriting obligations and not joint.
Section 12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Trust Depositor, the Servicer and Newcourt and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Trust Depositor, the Servicer and Newcourt and their
respective successors and the controlling persons and officers and directors
referred to in Sections 10 and 11 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
Section 13. EXPENSES. The Trust Depositor and the Servicer,
jointly and severally, agrees with the Underwriters to pay (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of
the Notes and any taxes payable in that connection; (ii) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (iii) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus and the Prospectus, all as
provided in this Agreement; (iv) the costs of reproducing and distributing
this Agreement and any other underwriting and selling group documents by
mail, telex or other means of communications; (v) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions
as provided in Section 5(e) and of preparing, printing and distributing Blue
Sky Memoranda and Legal Investment Surveys (including the related reasonable
and documented fees and expenses of counsel to the Underwriters); (vi) any
fees charged by rating agencies for rating the Notes; (vii) all fees and
expenses of the Indenture Trustee and the Owner Trustee and each of their
counsel; (viii) any transfer taxes payable in connection with its sale of the
Notes pursuant to this Agreement; and (ix) all other costs and expenses
incident to the performance of the obligations of the Trust Depositor and the
Servicer under this Agreement; PROVIDED that, except as otherwise provided in
this Section 13, the Underwriters shall pay their own costs and expenses,
including, the
First Union Capital Markets Corp. 15
November __, 1997
costs and expenses of their counsel and the expenses of advertising any
offering of the Notes made by the Underwriters.
Section 14. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Trust
Depositor, the Servicer, Newcourt and the Underwriters contained in this
Agreement or made by or on their behalf, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any of them or any person controlling any of them.
Section 15. NOTICES. All communication hereunder shall be in
writing and, (i) if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at First Union Capital Markets Corp., Asset
Securitization Division, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇; PROVIDED, HOWEVER,
that any notice to an Underwriter pursuant to Section 9(c) shall be delivered
or sent by mail, delivery or telecopy to such Underwriter at its address set
forth in its acceptance telex to the Representative, which address will be
supplied to any other party hereto by the Representative upon request; (ii)
if sent to the Trust Depositor, will be mailed, delivered or telecopied and
confirmed to them at the address of the Trust Depositor set forth in the
Registration Statement, Attention: Chief Financial Officer; (iii) if sent to
the Servicer, will be mailed, delivered or telecopied and confirmed to them
at the address of the Servicer set forth in the Registration Statement,
Attention: Vice President and Treasurer and (iv) if sent to Newcourt, will
be mailed, delivered or telecopied and confirmed to them at the address of
Newcourt set forth in the Registration Statement, Attention: Vice President
and Treasurer. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Trust Depositor, the
Servicer and Newcourt shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
the Representative.
Section 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 17. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; CURRENCY INDEMNITY.
(a) To the fullest extent permitted by applicable law, each of the
Trust Depositor, the Servicer and Newcourt irrevocably submits to the
jurisdiction of any Federal or State court in the City, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court. Each
of the Trust Depositor, the Servicer and Newcourt hereby irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding. Each of the Trust Depositor, the Servicer and Newcourt
hereby irrevocably designates and appoints CT Corporation (the "Process
Agent"), as its authorized agent upon whom process may be served in any such
suit or proceeding, it being understood that the designation and appointment
of CT Corporation as such authorized agent shall become effective immediately
without any further action on the part of the Trust Depositor, the Servicer
or Newcourt. Each of the Trust
First Union Capital Markets Corp. 16
November __, 1997
Depositor, the Servicer and Newcourt represents to each Underwriter that it
has notified the Process Agent of such designation and appointment and that
the Process Agent has accepted the same in writing. Each of the Trust
Depositor, the Servicer and Newcourt hereby irrevocably authorizes and
directs the Process Agent to accept such service. Each of the Trust
Depositor, the Servicer and Newcourt further agrees that service of process
upon the Process Agent and written notice of said service to the Trust
Depositor, the Servicer or Newcourt, as the case may be, mailed by first
class mail or delivered to the Process Agent at its principal office, shall
be deemed in every respect effective service of process upon the Trust
Depositor, the Servicer or Newcourt, as the case may be, in any such suit or
proceeding. Nothing herein shall affect the right of any Underwriter or any
person controlling any Underwriter to serve process in any other manner
permitted by law. Each of the Trust Depositor, the Servicer and Newcourt
agrees that a final action in any such suit or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other lawful manner.
(b) The obligation of the parties to make payments hereunder is in
U.S. dollars (U.S. dollars and such other currencies referred to above being
called the "Obligation Currency") and such obligation shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder, and the party liable to make such
payment agrees to indemnify the party which is to receive such payment (as an
additional, separate and independent cause of action) for the amount (if any)
by which such effective receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and such obligation to
indemnify shall not be affected by judgment being obtained for any other sums
due under this Agreement.
Section 18. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
Section 19. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
Section 20. EFFECTIVENESS. This Agreement shall become effective
upon execution and delivery.
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Trust Depositor, whereupon this letter
and your acceptance shall become a binding agreement among the Trust Depositor,
the Servicer, Newcourt and the several Underwriters.
Very truly yours,
NEWCOURT RECEIVABLES CORPORATION II
By: ____________________________________
Name:
Title:
NEWCOURT FINANCIAL USA INC.
By: _____________________________________
Name:
Title:
NEWCOURT CREDIT GROUP INC.
By: _____________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP., as
Representative of the Underwriters
named in Schedule II hereto
By: _____________________________________
Name:
Title: