1
$--------------------
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 1999-A
(ISSUER)
ORIX CREDIT ALLIANCE RECEIVABLES CORPORATION II
(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 1999-A
UNDERWRITING AGREEMENT
November ____, 1999
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
ORIX Credit Alliance Receivables Corporation II (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 1999-A (the "Trust") and the
Trust proposes to issue the Receivable-Backed Notes, Series 1999-A, consisting
of Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C (the
"Notes"). The Notes are to be issued pursuant to the Indenture, dated as of
November ____, 1999 (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.
2
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 (as defined herein) 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
2
3
part, the Indenture Trustee, on behalf of the Noteholders, will be able to
enforce the remedies of a secured party under the UCC.
(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 (as defined
herein), 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.
3
4
(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 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 333-84627), 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
4
5
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 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,
5
6
"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 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 ▇▇▇▇.
(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
6
7
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 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
7
8
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.
(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.
8
9
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.
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
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ time,
on November ____ 1999, 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
9
10
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 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
10
11
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.
(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
"F-1+/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"
11
12
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 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 in the form set forth on Annex A.
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the Underwriter their
written opinion, 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 (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 the form of ▇▇▇▇▇ B.
(f) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the Underwriter, their
written opinion(s), 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 in the
form of Annex C.
(h) ▇▇▇▇▇, Danzig, Scherer, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ shall have furnished to
the
12
13
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 in the
form of Annex D.
(i) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 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 E.
(j) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 in the form of ▇▇▇▇▇ ▇.
(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
13
14
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 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
14
15
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 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
15
16
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 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
16
17
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless: (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing; (ii) the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel; or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) at any
time for all such indemnified parties, which firm shall be designated in writing
by the Underwriter, if the indemnified parties under this Section 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 chart 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
17
18
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 ▇▇▇▇ 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
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
18
19
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 (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
19
20
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 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.
20
21
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 II
By:
Name:
Title:
ORIX CREDIT ALLIANCE RECEIVABLES
TRUST 1999-A
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:
21
22
SCHEDULE A
Date of Underwriting Agreement: November ____, 1999
Underwriter: First Union Securities, Inc.
Underwriter Address: First Union Securities, Inc.
One First Union Center, TW-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Title, Purchase Price and Description of Notes:
Class A-1 Notes
Title: $____ ____% Class A-1 Receivable-Backed
Notes, Series 1999-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
November 15, 1999
Maturity: ________________ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Servicer's option
if the Aggregate Contract Principal Balance
at such time is less than 10% of the initial
Aggregate Contract Principal Balance as of
the Cutoff Date.
Class A-2 Notes
Title: $________________ _____% Class A-2
Receivable-Backed Notes, Series 1999-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
November 15, 1999
Maturity: ___________________ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Servicer's option if
the Aggregate Contract Principal Balance at
such time is less than 10% of
22
23
the initial Aggregate Contract Principal
Balance as of the Cutoff Date.
Class A-3 Notes
Title: $________________ _____% Class A-3
Receivable-Backed Notes, Series 1999-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
November 15, 1999
Maturity: __________________ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Servicer's option
if the Aggregate Contract Principal Balance
at such time is less than 10% of the initial
Aggregate Contract Principal Balance as of
the Cutoff Date.
Class A-4 Notes
Title: $________________ _____% Class A-4
Receivable-Backed Notes, Series 1999-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
November 15, 1999
Maturity: __________________ Distribution Date
Redemption provisions: Notes remaining outstanding may
be redeemed in whole, but not in part, on
any Distribution Date at the Servicer's
option if the Aggregate Contract Principal
Balance at such time is less than 10% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Class B Notes
Title: $________________ _____% Class B
Receivable-Backed Notes, Series 1999-A
Price to public: $________________
Purchase price: $________________
Underwriting discount: $________________
23
24
Distribution Dates: The 15th calendar day of each month (if
such day is not a Business Day, then
next succeeding Business Day), commencing
November 15, 1999
Maturity:________________ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Servicer's option
if the Aggregate Contract Principal Balance
at such time is less than 10% of the initial
Aggregate Contract Principal Balance as of
the Cutoff Date.
Class C Notes
Title: $________________ _____% Class C
Receivable-Backed Notes, Series 1999-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
November 15, 1999
Maturity: __________________ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Servicer's option
if the Aggregate Contract Principal Balance
at such time is less than 10% of the initial
Aggregate Contract Principal Balance as of
the Cutoff Date.
Closing Date, Time and Location:
Date:
Time:
Location:
24
25
ANNEX A
(i) Each of the Trust Depositor and OCAI has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction.
(ii) The Transaction Documents to which OCAI is a party have
been duly authorized, executed and delivered by ▇▇▇▇.
(iii) There are no actions, proceedings or investigations
pending before or, to the knowledge of such counsel, threatened by any
court, administrative agency or other tribunal to which (A) the Trust
Depositor is a party or of which any of its properties are the subject:
(1) that if determined adversely to the Trust Depositor would have a
material adverse effect on the business, results of operations or
financial condition of the Trust Depositor; (2) asserting the
invalidity of the Indenture, the Transfer and Servicing Agreement or
the Notes; (3) seeking to prevent the issuance of the Notes or the
consummation by the Trust Depositor of any of the transactions
contemplated by the Indenture, the Transfer and Servicing Agreement, or
the Underwriting Agreement, as the case may be; or (4) that would
materially and adversely affect the performance by the Trust Depositor
of its obligations under, or the validity or enforceability of the
Transaction Documents to which it is a party or the Notes or (B) OCAI
is a party or which any of its properties is subject that would
materially and adversely affect the performance by OCAI of its
obligations under any of the Transaction Documents to which it is a
party.
25
26
ANNEX B
(i) The Trust Depositor and OCAI have been duly incorporated
and are validly existing corporations in good standing under the laws
of the State of Delaware and the state of New York, respectively.
(ii) The Transaction Documents to which OCAI or the Trust
Depositor, as the case may be, is a party have been duly authorized,
executed and delivered by the Trust Depositor or OCAI, as applicable.
(iii) OCAI has full corporate power and authority to enter
into and fulfill its obligations under the Transaction Documents and to
transfer the Contract Assets to the Trust Depositor as contemplated in
the OCAI Transfer Agreement.
(iv) Assuming the Indenture has been duly authorized, executed
and delivered by the Trust, the Indenture has been duly qualified under
the Trust Indenture Act of 1939 and constitutes a valid and legally
binding obligation of the Trust, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(v) Assuming the Notes have been duly authorized, executed,
authenticated, issued and delivered by the Trust, the Notes constitute
valid and legally binding obligations of the Trust, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(vi) Each Transaction Document (other than the Trust Agreement
as to which such counsel need not express an opinion) to which OCAI,
the Trust Depositor or the Trust, as the case may be, is a party
constitutes a valid and legally binding obligation of OCAI, the Trust
Depositor or the Trust, as the case may be, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(vii) The execution and delivery of the Transaction Documents
to which OCAI or the Trust Depositor, as the case may be, is a party
and the consummation of the transactions contemplated therein will not
conflict with or constitute a breach of, or default under, the charter
or by-laws of OCAI or the Trust Depositor, as the case may be, or any
agreement, indenture, or other instrument known to such counsel to
which OCAI or the Trust Depositor, as the case may be, or any of OCAI's
other subsidiaries is a party or by which OCAI or the Trust Depositor
or any of OCAI's other subsidiaries or their
26
27
respective parents may be bound, or any judgment, administrative or
court order or decree known to such counsel to be applicable to either
OCAI or the Trust Depositor or any of OCAI's other subsidiaries.
(viii) The execution, delivery and performance of this
Underwriting Agreement, the Indenture and the Transfer and Servicing
Agreement by the Trust Depositor and OCAI, the consummation of the
transactions contemplated hereby and thereby, and the issuance and
delivery of the Notes do not and will not conflict with or result in a
material breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Trust Depositor or OCAI are parties or by which the Trust Depositor or
OCAI are bound or to which any of the property or assets of the Trust
Depositor or OCAI or any of their subsidiaries are subject, nor will
such actions result in any violation of the provisions of the articles
of incorporation or bylaws of the Trust Depositor or OCAI or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust Depositor or OCAI or
any of their properties or assets.
(ix) The Subordination Agreement establishes the relative
rights and priorities of the Trust and OCAI in collateral securing
certain of the Contracts and other contracts originated by OCAI and
does not provide for the performance of obligations or duties by either
OCAI or the Trust. Accordingly, the Subordination Agreement should not
be construed as an executory contract for purposes of Section 365 of
the Bankruptcy Code.
(x) To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein as filed or
incorporated by reference as exhibits thereto.
(xi) The Indenture and the Notes conform in all material
respects to the description thereof contained in the Prospectus.
(xii) The information in the Prospectus under "Description of
the Notes and Indenture" (other than of the portion thereof under the
caption "Book-Entry Registration," as to which such counsel need not
express an opinion) and "The Transfer and Servicing Agreement," insofar
as it constitutes a summary of certain provisions of the Notes and the
Transaction Documents, summarizes fairly such provisions.
(xiii) The information in the Prospectus under "Material
Federal Income Tax Considerations" and "ERISA Considerations," to the
extent that it constitutes statements of matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects. For federal income tax purposes, in such counsel's
opinion, the Notes will be considered debt and the Trust will not be an
association taxable as a corporation.
27
28
(xiv) All consents, authorizations, approvals, registration,
qualifications and filings required to be obtained or made with any
court or governmental agency or body having jurisdiction over OCAI or
the Trust Depositor for the issuance, sale and delivery of the Notes to
the Underwriter, the sale of the Contract Assets from OCAI to the Trust
Depositor, the transfer of the Contract Assets from the Trust Depositor
to the Trust, and the other transactions contemplated by the
Underwriting Agreement and the Transaction Documents to which the Trust
Depositor or OCAI is a party, have been obtained or made.
(xv) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Notes, and the
sale of the Notes to the Underwriter, or the consummation by the Trust
Depositor of the other transactions contemplated by the Transaction
Documents, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Act or state securities or blue sky laws in connection with the
purchase and distribution of the Notes by the Underwriters or as have
been previously obtained.
(xvi) The issuance of the Notes and the sale of the Notes by
the Trust to the Underwriter pursuant to the Underwriting Agreement do
not, and the performance by each of the Trust Depositor and OCAI of its
obligations under the Transaction Documents to which the Trust
Depositor or OCAI is a party will not, violate any Federal law of the
United States or law of the State of New York applicable to the Trust
Depositor or OCAI, provided, however, that, for the purpose of this
paragraph (xvi), such counsel need not express an opinion with respect
to state securities laws, other antifraud laws and fraudulent transfer
laws; provided, further, that insofar as performance by each of the
Trust Depositor and OCAI of their obligations under the Transaction
Documents to which the Trust Depositor or OCAI is a party is concerned,
such counsel need not express an opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
(xvii) Neither the Trust Depositor nor the Trust is subject to
registration as an "investment company" as such term is defined under
the Investment Company Act of 1940.
(xviii) The Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939.
(xix) The Trust Depositor has full corporate power and
authority to enter into and fulfill its obligations under the
Transaction Documents and to transfer the Contract Assets to the Trust
as contemplated in the Transfer and Security Assessment.
(xx) The OCAI Transfer Agreement constitutes a valid
assignment of all of OCAI's right, title and interest in the Contract
Assets. To the extent that the Contracts constitute "chattel paper"
under the New York Uniform Commercial Code, the perfection
28
29
of such security interest is governed by the law of the State of New
Jersey.
(xxi) The Transfer and Servicing Agreement either (a) validly
assigns to the Trust all of the Trust Depositor's right, title and
interest in the Contract Assets or (b) creates a valid security
interest in the Contract Assets and the proceeds thereof in favor of
the Trust. To the extent that the transfer constitutes (a) a sale of
Contract Assets that constitute "chattel paper" under the New York
Uniform Commercial Code, the perfection of such security interest is
governed by the law of the State of New Jersey and (b) a security
interest in Contracts that are "chattel paper" under the New York
Uniform Commercial Code, the perfection of such security interest is
governed by the law of the State of New Jersey.
(xxii) The Indenture creates a valid security interest in all
of the Trust's right, title and interest in and to the Contract Assets.
To the extent that the Contract Assets constitute "chattel paper" under
the New York Uniform Commercial Code, the perfection of such security
interest is governed by the law of the State of Delaware.
29
30
ANNEX C
(i) No authorization, approval, consent or order of any New
Jersey court or governmental authority or agency is required in
connection with the sale of the Notes to the Underwriter, the sale of
the Contract Assets by OCAI to the Trust Depositor and the subsequent
sale of the Contract Assets by the Trust Depositor to the Trust, and
the other transactions contemplated by the Transaction Documents,
except such as may have been obtained or be required under any state,
federal and other securities laws (including, but not limited to, the
Securities Act, the Exchange Act, the Investment Company Act of 1940,
or the Trust Indenture Act of 1939) or any other laws governing or
affecting the issuance, sale, registration, underwriting or other
transfer of securities or the trading or marketing thereof and any
rules and regulations promulgated thereunder (collectively, the
"Securities Laws").
(ii) The execution and delivery of the Underwriting Agreement
and the other Transaction Documents and the consummation of the
transactions contemplated thereunder will not result in the violation
of the provisions of any applicable New Jersey law or administrative
regulation, except that such counsel need not express any opinion as to
the applicability or violation of any Securities Laws.
(iii) The Trust Depositor's UCC- 1 Statement (the "Trust
Depositor Statement") and the OCAI UCC-1 Statement (the "OCAI
Statement") are in an appropriate form for filing with the New Jersey
Department of Treasury, Division of Revenue, Uniform Commercial Code
Section.
(iv) (A) Upon proper execution and filing of the OCAI
Statement in the New Jersey Department of Treasury, Division of
Revenue, Uniform Commercial Code Section, and assuming the valid
transfer of the Contract Assets to the Trust Depositor pursuant to the
Transaction Documents, the Trust Depositor shall have an ownership
interest in the Contract Assets, which interest shall be free and clear
of any lien or encumbrance which may be created and perfected under the
New Jersey Uniform Commercial Code.
(B) (1) To the extent that the transfer of the Contract Assets
to the Trust may be determined under relevant law to be a "true sale"
(a matter as to which such counsel need not express an opinion), upon
proper execution and filing of the Trust Depositor Statement in the New
Jersey Department of Treasury, Division of Revenue, Uniform Commercial
Code Section, and assuming the valid transfer of the Contract Assets to
the Trust, the Trust will have an ownership interest in the Contract
Assets, free and clear of any lien or encumbrance which may be created
and perfected under the New Jersey Uniform Commercial Code (other than
any lien or encumbrance theretofore granted to the Trust Depositor);
and
30
31
(2) To the extent that the transfer of the Contract
Assets to the Trust may be determined under relevant law to be a
"transfer for the purposes of granting a security interest" (a matter
as to which such counsel need not express an opinion), upon proper
execution and filing of the Trust Depositor Statement in the New Jersey
Department of Treasury) Division of Revenue, Uniform Commercial Code
Section, and assuming the creation of a valid security interest, the
Trust shall have a valid perfected, first priority security interest in
the Contract Assets and proceeds thereof (other than any lien or
encumbrance theretofore granted to the Trust Depositor).
31
32
ANNEX D
(i) The Trust will be classified as a partnership and will not
be an association taxable as a corporation for New Jersey income tax
purposes.
(ii) The Trust would not be subject to any special tax status
under New Jersey tax law based upon any characterization as a publicly
traded partnership.
(iii) The Notes will be treated as indebtedness of the Trust
for New Jersey income tax purposes.
(iv) The information in the Prospectus under the heading
"State and Local Tax Considerations - New Jersey" has been reviewed by
such counsel and is correct in all material respects.
32
33
ANNEX E
(i) The Bank of New York ("BNY (DE)") is duly incorporated and
validly existing as a banking corporation under the laws of the State
of Delaware.
(ii) BNY (DE) has the power and authority to execute, deliver
and perform its obligations under the Trust Agreement.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by BNY (DE) and constitutes a legal, valid and binding
agreement of BNY (DE), enforceable against BNY (DE), in accordance with
its terms.
(iv) Neither the execution, delivery and performance by BNY
(DE) of the Trust Agreement, nor the consummation by BNY (DE) of any of
the transactions contemplated thereby, requires the consent,
authorization, order or approval of, the giving of notice to, the
registration with or the taking of any other action in respect of, any
governmental authority or agency under the laws of the State of
Delaware or any federal law of the United States governing the banking
or trust powers of BNY (DE), other than the filing of the Certificate
of Trust with the Secretary of State (which Certificate of Trust has
been duly filed).
(v) Neither the execution, delivery and performance by BNY
(DE) of the Trust Agreement, nor the consummation by BNY (DE) of any of
the transactions contemplated thereby, (i) conflicts with or
constitutes a breach of or default under the Certificate of Trust, the
Trust Agreement, the certificate of incorporation or by-laws of BNY
(DE) or, to the knowledge of such counsel, without independent
investigation, any agreement, indenture or other instrument to which
BNY (DE) is a party or by which it or any of its properties may be
bound or (ii) violates any law, governmental rule or regulation of the
State of Delaware or any federal law of the United States of America
governing the banking or trust powers of BNY (DE), or, to the knowledge
of such counsel, without independent investigation, any court decree of
the State of Delaware applicable to BNY (DE).
(vi) To the knowledge of such counsel, without independent
investigation, there are no actions or proceedings pending or
threatened against BNY (DE) in any court or before any governmental
authority, arbitration board or tribunal of the State of Delaware which
involve the Trust Agreement or would question the right, power or
authority of BNY (DE) to enter into or perform its obligations under
the Trust Agreement.
(vii) To the knowledge of such counsel, without independent
investigation, there exist no liens, security interests or charges
affecting any of the property of the Trust resulting from acts of or
claims against BNY (DE) that are unrelated to the transactions
33
34
contemplated by the Trust Agreement.
34
35
ANNEX F
(i) The Trust has been duly formed and is validly existing as
a business trust under the Delaware Business Trust Act, 12 Del.C.
Section 3801, et seq. (the "Act"), and has the power and authority
under the Trust Agreement and the Act to execute, deliver and perform
its obligations under the Transaction Documents to which the Trust is a
party (the "Trust Documents").
(ii) The Trust Documents have been duly authorized, executed
and delivered by the Trust.
(iii) The Trust Agreement is a legal, valid and binding
obligation of the Depositor and the Owner Trustee, enforceable against
the Trust Depositor and the Owner Trustee, in accordance with its
terms.
(iv) Neither the execution, delivery and performance by the
Trust of the Trust Documents, nor the consummation by the Trust of any
of the transactions contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or the
taking of any other action in respect of, any governmental authority or
agency of the State of Delaware, other than the filing of the
Certificate of Trust with the Secretary of State.
(v) Neither the execution, delivery and performance by the
Trust of the Trust Documents, nor the consummation by the Trust of the
transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule or regulation of the State of Delaware
applicable to the Trust.
(vi) Under Section 3805(b) of the Act, no creditor of any
Certificateholder (including the Trust Depositor in its capacity as
such) shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the property of
the Trust.
(vii) Under the Act, the Trust is a separate legal entity and,
assuming that the Transfer and Servicing Agreement conveys good title
to the property transferred thereunder to the Trust as a true sale and
not as a security arrangement, the Trust rather than the
Certificateholder will hold whatever title to the property as may be
conveyed to it from time to time pursuant to the Transfer and Servicing
Agreement, except to the extent that the Trust has taken action to
dispose of or otherwise transfer or encumber any part of the Trust's
property.
(viii) Under Section 3805(c) of the Act, except to the extent
otherwise provided in the Trust Agreement, a Certificate holder
(including the Trust Depositor in its capacity as such) has no interest
in specific property of the Trust.
35
36
(ix) Assuming that the Trust will not be characterized as an
association taxable as a corporation under the Code and assuming that
the Notes are treated as debt and the Certificates are treated as
representing an undivided interest in the assets of the Trust, (i)
neither the Trust nor any of its assets will be subject to income
taxation by the State of Delaware and (ii) a Certificateholder that
would not be subject to taxation by the State of Delaware, but for its
ownership of Certificates in the Trust, will not be subject to such
taxation solely as a result of such ownership.
(x) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Contract Assets has been duly created and has attached, upon the filing
of the UCC-1 statement with the Secretary of State the Indenture
Trustee will have a perfected security interest in the Trust's rights
in that portion of the Contract Assets that constitutes "chattel
paper," "general intangibles" or "accounts" (as such terms are defined
in the Delaware UCC) and the proceeds thereof; and such security
interest will be prior to any other security interest granted by the
Trust that is perfected solely by the filing of financing statements
under the Delaware UCC, excluding purchase money security interests
under "9-312 of the Delaware UCC and temporarily perfected security
interests in proceeds under "9-306 of the Delaware UCC.
(xi) No re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except as described therein.
36
37
ANNEX G
(i) The Indenture Trustee is a national banking association
with trust powers, duly and validly existing under the laws of the
United States of America, with corporate power and authority (corporate
and other) to execute, deliver and perform its obligations under the
Indenture and to act as Indenture Trustee.
(ii) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee.
(iii) The execution and delivery of the Indenture by the
Indenture Trustee and the performance by the Indenture Trustee of its
terms do not conflict with or result in a violation of (x) any law or
regulation of the United States of America governing the banking or
trust powers of the Indenture Trustee or (y) the organization
certificate or by-laws of the Indenture Trustee.
(iv) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America having
jurisdiction over the banking or trust powers of the Indenture Trustee
is required in connection with the execution and delivery by the
Indenture Trustee of the Indenture or the performance by the Indenture
Trustee thereunder.
37