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EXHIBIT 1.1
$287,081,347
(approximate)
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 2000-A
(ISSUER)
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION III
(TRUST DEPOSITOR)
ORIX CREDIT ALLIANCE, INC.
(ORIGINATOR)
CLASS A-1
CLASS A-2
CLASS A-3
CLASS A-4
CLASS B
CLASS C
RECEIVABLE-BACKED NOTES, SERIES 2000-A
UNDERWRITING AGREEMENT
February ____, 2000
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
ORIX Credit Alliance Receivables Corporation III (the "Trust
Depositor") proposes to transfer certain equipment installment loans and sales
contracts, finance leases, and title retention and other security agreements
with various companies to ORIX Credit Alliance Receivables Trust 2000-A (the
"Trust") and the Trust proposes to issue the Receivable-Backed Notes, Series
2000-A, consisting of Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class B and
Class C (the "Notes"). The Notes are to be issued pursuant to the Indenture, to
be dated as of February 25, 2000 (the "Indenture"), between ▇▇▇▇▇▇ Trust and
Savings Bank, as Indenture Trustee (the "Indenture Trustee") and the Trust, 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
Indenture.
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The Trust Depositor and Orix Credit Alliance, Inc. ("OCAI") hereby
confirm their agreement through this agreement (the "Underwriting Agreement"),
with First Union Securities, Inc. (the "Underwriter") to sell the Notes to the
Underwriter on the terms and conditions hereof, in the amount set forth opposite
its name on Schedule A. The Notes are more fully described in the Registration
Statement that the Trust Depositor has furnished to the Underwriter.
Simultaneously with the execution of the Indenture, the Trust
Depositor will enter into a transfer and servicing agreement (the "Transfer and
Servicing Agreement") with ORIX Credit Alliance, Inc. (in such capacity, the
"Originator"), pursuant to which the Originator will transfer to the Trust
Depositor all of its right, title and interest in and to the Contract Assets as
of the Cutoff Date and the Trust Depositor will transfer to the Trust all of its
right, title and interest in and to the Contract Assets as of the Cutoff Date.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor and OCAI, jointly and severally, represent and warrant to
the Underwriter that:
(a) The Trust Depositor has all requisite corporate 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 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 board of
directors of the Trust Depositor and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and validly
executed and delivered by the Trust Depositor.
(d) Each of the Transaction Documents (other than the Underwriting
Agreement) to which it is a party and the Notes will be executed and delivered
by the Trust Depositor 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 Trust Depositor, enforceable against the Trust Depositor 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,
(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 able to enforce the
remedies of a secured party under the UCC.
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(e) The Notes will be issued pursuant to the terms of the Indenture
and, when executed by the Trust and authenticated by the Indenture Trustee in
accordance with the Indenture and 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 Registration Statement, each as
amended or supplemented.
(f) The Trust Depositor 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 Trust
Depositor.
(g) Neither the issuance and sale of the Notes, nor the execution
and delivery by the Trust Depositor of the Notes or the Transaction Documents to
which it is a party, nor the incurrence by the Trust Depositor 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.
(h) 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 Trust Depositor 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.
(i) All actions required to be taken by the Trust Depositor 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.
(j) The representations and warranties made by the Trust Depositor
in the Transaction Documents and made in any Officer's Certificate of the Trust
Depositor 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.
(k) The Trust Depositor 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 except as provided in, or expressly
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permitted by, the Transfer and Servicing Agreement, and agree 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.
(l) The Trust Depositor 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 Trust Depositor 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 Trust Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
(m) There are no actions, proceedings or investigations pending
before or, to the knowledge of the Trust Depositor, threatened by any court,
administrative agency or other tribunal to which the Trust Depositor is a party
or of which any of its properties are the subject (i) that if determined
adversely to the Trust Depositor would have a material adverse effect on the
business or financial condition of the Trust Depositor, (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 Trust Depositor of any of
the transactions contemplated by any Transaction Document or (iv) that would
materially and adversely affect the performance by the Trust Depositor under, or
the validity or enforceability of, any Transaction Document or the Notes.
(n) The Trust Depositor has prepared and filed with the United
States 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 333-95489), including a
form of preliminary prospectus, relating to the 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
Trust Depositor 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 Trust Depositor with the Commission
pursuant to Rule 424(b) under the Securities Act or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is hereinafter called the "Prospectus". There are
no contracts or documents of the Trust Depositor 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 or incorporated by reference
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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.
(o) 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 OCAI, threatened by the Commission.
(p) 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 10(d) hereof) contained
therein. The Indenture conforms in all respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder.
(q) 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 Trust
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(r) 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 OCAI directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien, encumbrance, security interest
or any other claim of any third party.
(s) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with
respect to the Trust Depositor as required by the Securities Act.
(t) At the time of execution and delivery of the Transfer and
Servicing Agreement, the Trust Depositor will: (i) have good title to the
interest in the Contract Assets conveyed by OCAI, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security interest
not permitted under the Transfer and Servicing Agreement (collectively,
"Liens"); (ii) not have assigned to any Person (other than the Trust) any of its
right, title or interest in the Contract Assets, or the Transaction Documents;
and (iii) have the power and authority to pledge its interest in the Contract
Assets to the Trust. Upon execution and delivery of the Transfer and Servicing
Agreement by the Indenture Trustee and any related instruments of pledge,
transfer or assignment by the Trust Depositor, the Trust will have a valid
security interest
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in all of the Trust Depositor's right, title and interest in and to the Contract
Assets. Upon execution of the Indenture, the Indenture Trustee will have a valid
security interest in all of the Trust's right, title and interest in and to the
Contract Assets. Upon delivery to the Underwriter of the Notes, the Underwriter
will have good title to the Notes free of any Liens.
(u) 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.
(v) 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.
(w) All OCAI-Provided Information was true and correct in all
material respects as of the date it was provided to the Underwriter. The term
"OCAI-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 Trust Depositor or OCAI concerning the
assets comprising the Trust Estate; and
(x) Neither the Trust nor the Trust Depositor are 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 OCAI. OCAI represents
and warrants to the Underwriter that:
(a) 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 board of
directors of OCAI and all other necessary action has been taken.
(b) The Underwriting Agreement has been duly authorized and validly
executed and delivered by OCAI.
(c) Each of the Transaction Documents (other than the Underwriting
Agreement) to which it is a party will be executed and delivered by OCAI on or
before the Closing Date, and when executed and delivered by the other parties
thereto, will constitute a valid and binding agreement of OCAI, enforceable
against OCAI 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, (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 UCC, but the inclusion of such provisions does not render the
other provisions of the Indenture invalid and, notwithstanding that such
provisions may be
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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 OCAI in the
Transaction Documents and made in any Officer's Certificate of OCAI 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) OCAI 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 OCAI would, singly or in the
aggregate, materially and adversely affect the conduct of their business,
operations or financial condition.
(f) OCAI has been duly incorporated and is validly existing as
corporation in good standing under the law of its jurisdictions 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 OCAI taken as a whole, and to execute, deliver and
perform its obligations under the Notes and the Transaction Documents.
(g) There are no actions, proceedings or investigations pending
before or, to the knowledge of OCAI, threatened by any court, administrative
agency or other tribunal to which OCAI is a party or of which any of its
properties are the subject (i) that if determined adversely to OCAI would have a
material adverse effect on the business or financial condition of OCAI, (ii)
asserting the invalidity of the Notes or any Transaction Document, (iii) seeking
to prevent the issuance of the Notes or the consummation by OCAI of any of the
transactions contemplated by any Transaction Document or (iv) that would
materially and adversely affect the performance by OCAI under, or the validity
or enforceability of, any Transaction Document to which OCAI is a party.
(h) OCAI (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, 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 OCAI.
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(i) OCAI 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 except as provided in, or expressly permitted by, the OCAI Transfer
Agreement and the Transfer and Servicing Agreement, and agree 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. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust,
the Trust Depositor and OCAI, jointly and severally, represents and warrants to
the Underwriter that:
(a) The Trust has full power, authority and legal right to execute,
deliver and sell the Notes to the Underwriter and to perform its obligations
under Notes and the Transaction Documents to which it is a party.
(b) The execution and delivery of the Transaction Documents to which
it is a party and the consummation of the transactions provided for therein have
been duly authorized by all necessary action on its part.
(c) The execution and delivery of the Transaction Documents to which
it is a party, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof will not conflict with, result in any breach of
any of the materials terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Trust is a
party or by which it or any of its property is bound.
(d) The execution and delivery of the Transaction Documents to which
it is a party, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof will not conflict with or violate, in any
material respect, any requirements of law applicable to the Trust.
(e) All approvals, authorizations, consents, orders or other actions
of any Person or any governmental authority required in connection with the
execution and delivery of the Transaction Documents to which it is a party, the
performance of the transactions contemplated thereby and the fulfillment of the
terms thereof have been obtained.
(f) The Trust has its chief executive office and place of business
(as such terms are used in Article 9 of the UCC) in Newark, Delaware. The Trust
agrees that it will not change the location of such office to a location outside
of Newark, Delaware, without at least 30 days prior written notice to the OCAI,
the Indenture Trustee and the Rating Agencies.
SECTION 4. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, the Trust Depositor agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Trust Depositor, the principal amount of
Notes set forth Schedule A hereto. The purchase price for the Notes shall be as
set forth in Schedule A hereto.
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SECTION 5. DELIVERY AND PAYMENT. The Trust Depositor will deliver
the Notes to the Underwriter against payment of the purchase price in
immediately available funds, paid at the direction of the Trust Depositor, at
the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ City time, on February 25, 2000, or at such other time not later than seven
(7) full business days thereafter as the Underwriter and the Trust Depositor
determine, such time being herein referred to as the "Closing Date." Each of the
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 Notes will be available only
under the limited circumstances specified in the Indenture (other than such
Notes issued in the name of Cede & Co. as nominee for of DTC). The Trust
Depositor shall make such Definitive Notes representing the Notes available for
inspection by the Underwriter at the office at which the Notes are to be
delivered no later than five hours before the close of business in New York City
on the business day prior to the Closing Date.
SECTION 6. OFFERING BY UNDERWRITER. It is understood that the
Underwriter proposes to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Prospectus.
SECTION 7. COVENANTS OF THE TRUST DEPOSITOR AND OCAI. The Trust
Depositor and OCAI, jointly and severally, covenant and agree with the
Underwriter as follows:
(a) The Trust Depositor 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 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 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 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 Trust Depositor 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
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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 will promptly prepare and file with the Commission an amendment or a
supplement that 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
Underwriter shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Notes; provided,
however, that the Underwriter shall not be obligated to qualify to do business
in any jurisdiction in which they currently are not 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 Underwriter, without
charge, two copies of the Registration Statement (including exhibits thereto),
one of which will be signed during the prospectus delivery period, as many
copies of the Prospectus and any supplement thereto as the Underwriter may
reasonably request.
(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 Trust
Depositor will deliver to the Underwriter, (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 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 Trust, the Trust Depositor
or to OCAI with respect to the Trust or the Trust Depositor, or pursuant to a
"no action" letter obtained from the staff of the commission by the Trust, the
Trust Depositor or OCAI with respect to the Trust or the Trust Depositor and
affecting the Trust, the Trust Depositor or OCAI and (vi) from time to time,
such other information concerning the Trust, the Trust Depositor as the
Underwriter, may reasonably request.
(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 or the Trust Depositor, the Trust Depositor or the Trust, as
applicable shall furnish such documents and take any such other actions.
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(i) If required by the Securities Act or the rules of the Commission
promulgated hereunder, the Trust Depositor 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 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 (other than the
Notes purchased hereunder) without the prior written consent of the Underwriter.
SECTION 8. 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 Trust, the
Trust Depositor and OCAI contained herein, to the accuracy of the statements of
the Trust, the Trust Depositor and OCAI made in any certificates pursuant to the
provisions hereof, to the performance by the Trust, the Trust Depositor and OCAI
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 7(a) of 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 "P-1" by ▇▇▇▇▇'▇, "A-1+" by S&P and
"F1+/AAA" by Fitch, the Class A-2 Notes shall be rated no lower than "Aaa" by
▇▇▇▇▇'▇, "AAA" by S&P and "AAA" by Fitch, the Class A-3 Notes shall be rated no
lower than "Aaa" by ▇▇▇▇▇'▇, "AAA" by S&P and "AAA" by Fitch, the Class A-4
Notes shall be rated no lower than "Aaa" by ▇▇▇▇▇'▇, "AAA" by S&P and "AAA", by
Fitch, the Class B Notes shall be rated no lower than "A2" by ▇▇▇▇▇'▇, "A" by
S&P and "A" by Fitch, and the Class C Notes shall be rated no lower than "Baa2"
by ▇▇▇▇▇'▇, "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 Trust
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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 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) ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall have furnished to the Underwriter his
written opinion, as general counsel to OCAI and the Trust Depositor, 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.
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the Underwriter
their written opinions, as special New York counsel to OCAI, the Trust Depositor
and the Trust, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriter substantially to the
effect of Annexes B-1 and B-2 (which Annex B-1 opinion will also be delivered to
the Rating Agencies, all of whom shall be entitled to rely on such opinion as if
an addressee).
(f) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the Underwriter,
their written opinions, as counsel to the Trust Depositor and OCAI, 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 OCAI to the Trust Depositor pursuant to the Transfer and
Servicing Agreement as a sale and the non-consolidation of the Trust Depositor
and OCAI and (ii) such other opinions agreed to by the Trust Depositor, OCAI and
the Underwriter.
(g) ▇▇▇▇▇, Danzig, Scherer, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ shall have furnished
to the Underwriter their written opinion, as special New Jersey counsel to OCAI,
the Trust Depositor and the Trust, 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 C.
(h) ▇▇▇▇▇, Danzig, Scherer, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ shall have furnished
to the Underwriter their written opinion, as special New Jersey tax counsel to
OCAI, the Trust Depositor and the Trust, 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 D.
(i) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. shall have furnished to the
Underwriter their written opinion, as special Delaware counsel to The Bank of
New York (Delaware) ("BNY (DE)"), addressed to the Underwriter and dated the
Closing Date, in form and substance
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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 E.
(j) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. shall have furnished to the
Underwriter their written opinion, as special Delaware counsel to the Trust
Depositor and the Trust, 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 in form of
Annex F.
(k) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 G.
(l) The Underwriter shall have received from ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇,
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 Trust
Depositor shall have furnished to such counsel such documents as they reasonably
request for enabling them to pass upon such matters.
(m) Each of the Trust Depositor, the Trust and OCAI shall have
furnished to the Underwriter 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 OCAI may exclude the Underwriter's
Information (as defined in Section 10(d) herein) from such representation),
(iii) the representations and warranties of OCAI or the Trust Depositor, 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) OCAI or the Trust Depositor, 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
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
OCAI or the Trust Depositor, as applicable, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations or business of OCAI or the Trust Depositor except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(n) 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
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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 Trust Estate and such other matters as the Underwriter shall reasonably
request.
(o) Subsequent to the date of this Underwriting Agreement, there
shall not have occurred (i) 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 OCAI on any exchange or in the
over-the-counter market shall have been suspended; (ii) a general moratorium on
commercial banking activities shall have been declared by Federal or New York
State authorities; or (iii) 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.
(p) With respect to the letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, delivered to
the Underwriter, concurrently with the execution of this Underwriting Agreement
(the "initial letter"), the Trust Depositor 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.
(q) 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 each jurisdiction 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 Trust Depositor
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 Contract Assets and the proceeds thereof as
described in the Prospectus.
(r) 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 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
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has under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes or the Trust
Depositor's other debt securities.
If any condition specified in this Section 8 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 Trust Depositor 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 10.
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 9. PAYMENT AND EXPENSES. If (i) the Trust 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 Trust Depositor 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 Trust Depositor shall
pay the full amount thereof to the Underwriter.
SECTION 10. INDEMNIFICATION. (a) OCAI, the Trust Depositor and the
Trust 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 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 OCAI nor the Trust Depositor shall be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any Registration Statement as originally filed or in
any amendment thereof or supplement thereto, or in any Preliminary Prospectus or
the Prospectus or in any amendment thereof or supplement thereto in reliance
upon and in conformity with the Underwriter's Information (as defined in Section
10(d) herein).
(b) The Underwriter shall indemnify and hold harmless OCAI and the
Trust Depositor, against any loss, claim, damage or liability, joint or several,
or any action in respect thereof, to which OCAI and the Trust Depositor or any
one or more thereof may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action
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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 10(d) herein), and shall reimburse OCAI and the Trust
Depositor for any legal or other expenses reasonably incurred by OCAI or the
Trust Depositor 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 10 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 10, 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 10, 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 10.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
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
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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 10 consist of the Underwriter or any of its directors and controlling
persons, or by OCAI or the Trust Depositor, if the indemnified parties under
this Section 10 consist of OCAI or the Trust Depositor or any of the Trust
Depositor's or OCAI's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 10(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 Trust Depositor and OCAI 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,
the Class B Notes and the Class C 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.
(e) The obligations of OCAI, the Trust Depositor and the Underwriter
in this Section 10 are in addition to any other liability that OCAI, the Trust
Depositor or the Underwriter, as the case may be, may otherwise have.
SECTION 11. CONTRIBUTION.
If the indemnification provided for in Section 10 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 OCAI and the Trust Depositor on the one hand and the
Underwriter 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 OCAI and the
Trust Depositor 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 OCAI and the Trust
Depositor 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 Notes
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purchased hereunder (before deducting expenses) received by the Trust Depositor
bear to the total underwriting discounts and commissions received by the
Underwriter with respect to the 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 OCAI or the Trust Depositor 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. OCAI, the Trust Depositor and the Underwriter agrees 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 Underwriter 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, 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.
SECTION 12. TERMINATION OF AGREEMENT. The Underwriter may terminate
this Underwriting Agreement immediately upon notice to OCAI and the Trust
Depositor, at any time at or prior to the Closing Date if any of the events or
conditions described in Section 8(k) of this Underwriting Agreement shall occur
and be continuing. In the event of any such termination, the covenants set forth
in Section 7, the provisions of Section 9, the indemnity agreement set forth in
Section 10 and the provisions of Sections 11 and this Section 12 shall remain in
effect.
SECTION 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Underwriting Agreement shall inure to the benefit of and be binding upon the
Underwriter, the Trust Depositor, OCAI, 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 Trust Depositor and OCAI 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 14. EXPENSES. The Trust Depositor and OCAI, jointly and
severally, agree with the Underwriter 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
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(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 Notes under the
securities laws of the several jurisdictions as provided in Section 7(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); (vi) any fees charged by rating agencies for rating
the Notes; (vii) all fees and expenses of the Indenture Trustee and its counsel;
(viii) any transfer taxes payable in connection with its sale of the Notes
pursuant to this Underwriting Agreement; and (ix) all other costs and expenses
incident to the performance of the obligations of the Trust Depositor and OCAI
under this Underwriting Agreement.
SECTION 15. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Trust Depositor,
OCAI 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 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 16. 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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the Trust Depositor, will be mailed,
delivered or telecopied and confirmed to them at the addresses of the Trust
Depositor set forth in the Registration Statement, Attention: Treasurer; and
(iii) if sent to OCAI, will be mailed, delivered or telecopied and confirmed to
them at the address of OCAI 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 Trust Depositor and OCAI
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriter.
SECTION 17. 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
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PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17(b).
SECTION 18. 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.
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 Underwriting Agreement.
SECTION 20. EFFECTIVENESS. This Underwriting Agreement shall become
effective upon execution and delivery.
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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,
OCAI, and the Underwriter.
Very truly yours,
ORIX CREDIT ALLIANCE RECEIVABLES
CORPORATION III
By:
-------------------------------------
Name:
Title:
ORIX CREDIT ALLIANCE RECEIVABLES
TRUST 2000-A
By: ORIX Credit Alliance Receivables
Corporation III, as Trust Depositor
By:
------------------------------
Name:
Title:
ORIX CREDIT ALLIANCE, INC.
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date hereof.
FIRST UNION SECURITIES, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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SCHEDULE A
Date of Underwriting Agreement: February ____, 2000
Underwriter: First Union Securities, Inc.
Underwriter Address: First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Title, Purchase Price and Description of Notes:
Class A-1 Notes
---------------
Title: _____________% Class A-1 Receivable-Backed
Notes, Series 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day is
not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: March 15, 2001 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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.
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Class A-2 Notes
---------------
Title: _____________% Class A-2 Receivable-Backed
Notes, Series 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day
is not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: April 15, 2002 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day is
not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: May 15, 2004 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
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amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day is
not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: March 15, 2005 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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
-------------
Title: _____________% Class B Receivable-Backed
Notes, Series 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day is
not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: September 15, 2005 Distribution Date
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Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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 C Notes
-------------
Title: _____________% Class C Receivable-Backed
Notes, Series 2000-A
Price to public: _____________%
Purchase price: _____________%
Underwriting discount: _____________%
Distribution Dates: The 15th calendar day of each month (if such day is
not a Business Day, then next succeeding Business
Day), commencing March 15, 2000
Maturity: November 15, 2007 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the Aggregate
Contract Principal Balance at such time is less than
15% of the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Notes remaining outstanding shall be redeemed in
full on any Distribution Date if the aggregate
amounts on deposit in the Collection Account, the
Reserve Fund and the Spread Fund 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.
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Closing Date, Time and Location:
Date: February 25, 2000
Time: 9:00 a.m.
Location: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York
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