EXHIBIT 1.1
NEWCOURT RECEIVABLES CORPORATION (Seller)
NEWCOURT CREDIT GROUP INC. (Servicer)
UNDERWRITING AGREEMENT
(STANDARD TERMS)
December 9, 1996
First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Newcourt Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to cause Newcourt
Receivables Asset Trust (the "Trust") to issue the asset backed
notes designated in the applicable Terms Agreement (as
hereinafter defined) (the "Notes"). The Notes will be issued
pursuant to an indenture (the "Indenture") described in the
applicable Terms Agreement among the Trust, Fleet National Bank,
as collateral agent (the "Collateral Agent") and the trustee
identified in the applicable Terms Agreement (the "Indenture
Trustee") and will be secured pursuant to a Pooling, Collateral
Agency and Servicing Agreement (the "Pooling Agreement")
described in the applicable Terms Agreement among the Seller,
Newcourt Credit Group Inc., as servicer (the "Servicer"), the
Collateral Agent and Chase Manhattan Bank Delaware (formerly
Chemical Bank Delaware), as issuer trustee (the "Issuer
Trustee"), as supplemented by the Series Supplement, dated the
date specified in the applicable Terms Agreement, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(the "Supplement"). The Series of Notes designated in the
applicable Terms Agreement will be sold in a public offering
through the underwriters listed on Schedule I to the applicable
Terms Agreement, one or more of which may act as representative
of such underwriters (any underwriter through which Notes are
sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the
"Underwriters"; any representatives thereof may be referred to
herein as a "Representative"). Notes of any Series sold to the
Underwriters shall be sold pursuant to a Terms Agreement by and
among the Seller, the Servicer and the Representative, a form of
which is attached hereto as Exhibit A (a "Terms Agreement"),
which incorporates by reference this Underwriting Agreement (the
"Agreement", which may include the applicable Terms Agreement if
the context so requires). The term "applicable Terms Agreement"
means the Terms Agreement dated the date hereof. To the extent
not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling Agreement. Unless
otherwise stated herein or in the applicable Terms Agreement, as
the context otherwise requires or if such term is otherwise
defined in the Pooling Agreement, each capitalized term used or
defined herein or in the applicable Terms Agreement shall relate
only to the Series of Notes designated in the applicable Terms
Agreement and no other Series of Asset Backed Notes issued by the
Trust.
Section 1. Representations and Warranties. Upon the
execution of the applicable Terms Agreement, the Seller and the
Servicer, represent and warrant to each Underwriter that:
(a) The Seller has prepared and filed with the
Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"),
a registration statement on Form S-3 (registration number
33-98378), including a form of prospectus, relating to the
Notes. The registration statement, as amended, has been
declared effective by the Commission. If any post-effective
amendment has been filed with respect thereto, prior to the
execution and delivery of the applicable Terms Agreement,
the most recent such amendment has been declared effective
by the Commission. Such registration statement, as amended
at the time it was declared effective by the Commission,
including all material incorporated by reference therein and
including all information (if any) deemed to be part of the
registration statement at the time it was declared effective
by the Commission, is referred to in this Agreement as the
"Registration Statement". Copies of the Registration
Statement, together with any post-effective amendments have
been furnished to the Underwriters. The Seller proposes to
file with the Commission pursuant to Rule 424 ("Rule 424")
under the Securities Act a supplement (the "Prospectus
Supplement") to the form of prospectus included in the
Registration Statement (such prospectus, in the form it
appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to
Rule 424 is hereinafter referred to as the "Basic
Prospectus") relating to the Notes and the plan of
distribution thereof. The Basic Prospectus and the
Prospectus Supplement, together with any amendment thereof
or supplement thereto, is hereinafter referred to as the
"Final Prospectus". Except to the extent that the
Representative shall agree in writing to a modification, the
Final Prospectus shall be in all substantial respects in the
form furnished to the Underwriters prior to the execution of
the relevant Terms Agreement. Any preliminary form of the
Prospectus Supplement which has heretofore been filed
pursuant to Rule 424 is hereinafter called a "Preliminary
Final Prospectus";
(b) The Registration Statement, including such
amendments thereto as may have been required on the date of
the applicable Terms Agreement, relating to the Notes, has
been filed with the Commission and such Registration
Statement as amended 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 Seller or the
Servicer, threatened by the Commission;
(c) The Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus
will conform, in all material respects to the requirements
of the Securities Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and do not and will
not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, as of the
applicable filing date as to the Final Prospectus and any
supplement thereto, and as of the Closing Date, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided,
however, that this representation and warranty shall not
apply to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the
Trust Indenture Act or (ii) any Underwriters' Information
(as defined in Section 10(b) hereof) contained therein. The
Indenture conforms in all respects to the requirements of
the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(d) The representations and warranties of the Seller
in Sections 2.4 and 2.5 of the Pooling Agreement and Section
8 of the Supplement will be true and correct as of the
Closing Date.
(e) The representations and warranties of the Servicer
in Section 3.6 of the Pooling Agreement and Section 8 of the
Supplement will be true and correct as of the Closing Date.
(f) The Servicer and each of its subsidiaries have
been duly incorporated and are validly existing as
corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have
all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or
have such power or authority could not have, individually or
in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole.
(g) All the outstanding shares of capital stock of the
Seller 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 the
Servicer directly or indirectly through one or more wholly-
owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(h) (i) each of the Pooling Agreement and the
Supplement, when duly executed by the Seller and the
Servicer and delivered by such parties, will constitute a
valid and binding agreement of the Seller and the Servicer
enforceable against them in accordance with its terms; (ii)
the Indenture, when duly executed by the Issuer Trustee and
delivered by the Issuer Trustee, will constitute a valid and
binding agreement if the trust enforceable against the Trust
in accordance with its terms; (iii) the Notes, when duly
executed, authenticated, issued and delivered as provided in
the Indenture, will be duly and validly issued and
outstanding and will constitute valid and binding
obligations of the Trust entitled to the benefits of the
Indenture and enforceable in accordance with its terms; and
(iv) the Indenture, the Pooling Agreement, the Supplement
(collectively, the "Transaction Agreements") and the Notes
conform to the descriptions thereof contained in the Final
Prospectus.
(i) The execution, delivery and performance of this
Agreement, the Transaction Agreements to which the Servicer
or its subsidiary, as the case may be, is a party and the
issuance and sale of the Notes, the consummation of the
transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Servicer or any
of its subsidiaries is a party or by which the Servicer or
any of its subsidiaries is bound or to which any of the
property or assets of the Servicer or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Servicer or any of its subsidiaries or any statute or any
order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Servicer or any
of its subsidiaries or any of their properties or assets;
and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the
Trust Indenture Act, such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing
of any financing statements required to perfect the Trust's
interest in the Trust Assets, no consent, approval,
authorization or order of, or filing or registration with,
any such court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement or the Transaction Agreements, the issuance and
sale of the Notes and the consummation of the transactions
contemplated hereby and thereby.
(j) There are no contracts or other documents which
are required to be described in the Final Prospectus or
filed as exhibits to the Registration Statement by the
Securities Act and which have not been so described or
filed.
(k) There are no legal or governmental proceedings
pending to which the Servicer or any of its subsidiaries is
a party or of which any property or assets of the Servicer
or any of its subsidiaries is the subject which,
individually or in the aggregate, if determined adversely to
the Servicer or any of its subsidiaries, are reasonably
likely to have a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole; and to the best of the Servicer's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(l) Neither the Servicer nor any of its subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in
default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would
constitute such a default, in the due performance or
observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its
property or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or
assets may be subject, except any violation or default that
could not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole.
(m) Each of this Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered
by each of the Seller and the Servicer; and
(n) Neither the Trust nor the Seller is required to be
registered under the Investment Company Act of 1940, as
amended.
Section 2. Purchase and Sale. Subject to the terms
and conditions and in reliance upon the covenants,
representations and warranties herein set forth, the Seller
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Seller, the
principal amount of Notes set forth opposite such Underwriter's
name in Schedule I to the applicable Terms Agreement. The
purchase price for the Notes shall be as set forth in the
applicable Terms Agreement.
Section 3. Delivery and Payment. Unless otherwise
provided in the applicable Terms Agreement, payment for the Notes
shall be made to the Seller or to its order by wire transfer of
same day funds at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in New
York, New York at 10:00 A.M., New York City time, on the Closing
Date (as hereinafter defined) specified in the Terms Agreement,
or at such other time on the same or such other date as the
Representative and the Seller may agree upon. The time and date
of such payment for the Notes as specified in the applicable
Terms Agreement are referred to herein as the "Closing Date." As
used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New
York City.
Unless otherwise provided in the applicable Terms
Agreement, payment for the Notes shall be made against delivery
to the Representative for the respective accounts of the several
Underwriters of the Notes registered in the name of Cede & Co. as
nominee of The Depository Trust Company and in such denominations
as the Representative shall request in writing not later than two
full Business Days prior to the Closing Date. The Seller shall
make the Notes available for inspection by the Representative in
New York, New York not later than one full Business Day prior to
the Closing Date.
Section 4. Offering by Underwriters. It is understood
that the several Underwriters propose to offer the Notes for sale
to the public, which may include selected dealers, as set forth
in the Final Prospectus.
Section 5. Covenants of the Seller. The Seller
covenants and agrees with the Underwriters that upon the
execution of the applicable Terms Agreement:
(a) Immediately following the execution of such
applicable Terms Agreement, the Seller will prepare a
Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such
Notes are to be purchased by the Underwriters, the initial
public offering price, the selling concessions and
allowances, and such other information as the Seller deems
appropriate. The Seller will file such Prospectus
Supplement with the Commission pursuant to Rule 424 within
the time prescribed therein and will provide evidence
satisfactory to the Representative of such timely filing.
(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 Final Prospectus, the
Seller will furnish to the Representative a copy of the
proposed amendment or supplement for review and will not
file any such proposed amendment or supplement to which the
Representative reasonably objects.
(c) During the prospectus delivery period, the Seller
will advise the Representative promptly after it receives
notice thereof, (i) when any amendment to the Registration
Statement shall have become effective; (ii) of any request
by the Commission for any amendment or supplement to the
Registration Statement or the Final Prospectus or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening
of any proceeding for that purpose, (iv) of the issuance by
the Commission of any order preventing or suspending the use
of any Preliminary Final Prospectus or Final 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 Final
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 Final Prospectus to comply with the
Securities Act, the Seller promptly will prepare and file
with the Commission, an amendment or a supplement which will
correct such statement or omission or effect such
compliance.
(e) The Seller will endeavor to qualify the Notes for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request
and will continue such qualification in effect so long as
reasonably required for distribution of the Notes; provided,
however, that the Seller shall not be obligated to qualify
to do business in any jurisdiction in which it is not
currently so qualified; and provided further, that the
Seller shall not be required to file a general consent to
service of process in any jurisdiction.
(f) The Seller will furnish to the Representative,
without charge, two copies of the Registration Statement
(including exhibits thereto), one of which will be signed,
and to each Underwriter conformed copies of the Registration
Statement (without exhibits thereto) and, during the
prospectus delivery period, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and
any supplement thereto as the Underwriters may reasonably
request.
(g) For a period from the date of this Agreement until
the retirement of the Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in
the Notes, whichever first occurs, the Seller will deliver
to the Underwriters (i) the annual statements of compliance,
(ii) the annual independent certified public accountants'
reports furnished to the Issuer Trustee and the Indenture
Trustee (collectively, the "Trustees"), (iii) all documents
required to be distributed to Noteholders of the Trust and
(iv) all documents filed with the Commission pursuant to the
Exchange Act or any order of the Commission thereunder, in
each case as provided to the Trustees or filed with the
Commission, as soon as such statements and reports are
furnished to the Trustees or filed or as soon thereafter as
practicable.
(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 Seller, the Seller shall furnish such documents and
take any such other actions.
(i) The Seller will cause the Trust to make generally
available to Noteholders and to the Representative as soon
as practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter
of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder.
(j) For a period of 90 days from the date hereof, the
Seller 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 Seller or
the Trust (other than the Notes purchased hereunder) without
the prior written consent of the Underwriters.
(k) Without First Union Capital Markets Corp.'s prior
written consent, the Seller will not, and the Servicer will
not cause the Seller to, offer and sell the securities
registered under the Securities Act on the registration
statement on Form S-3 (registration number 33-98378).
Section 6. Conditions to the Obligations of the
Underwriters. The respective obligations of the several
Underwriters hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties of the
Seller and the Servicer contained herein, to the accuracy of the
statements of the Seller and the Servicer made in any
certificates pursuant to the provisions hereof, to the
performance by the Seller and the Servicer of their respective
obligations hereunder and under the applicable Terms Agreement
and to each of the following additional terms and conditions:
(a) The Final Prospectus shall have been filed with
the Commission pursuant to Rule 424 in the manner and within
the applicable time period prescribed for such filing by the
rules and regulations of the Commission under the Securities
Act and in accordance with Section 5(a) of this Agreement;
and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for such
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information from
the Commission with respect to the Registration Statement
shall have been complied with to the reasonable satisfaction
of the Representative.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Transaction Agreements, the Notes, the
Registration Statement, the Preliminary Final Prospectus and
the Final Prospectus, and all other legal matters relating
to such agreements and the transactions contemplated hereby
and thereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Seller
shall have furnished to such counsel all documents and
information that they may reasonably request to enable them
to pass upon such matters.
(c) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall
have furnished to the Representative their written opinion,
as counsel to the Seller and the Servicer, addressed to the
Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(d) (x) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have furnished to the
Representative his written opinion, as Secretary to the
Servicer, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory
to the Underwriters and (y) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have
furnished to the Representative his written opinion, as
General Counsel to Newcourt Financial USA Inc., addressed to
the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(e) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall
have furnished to the Representative their written opinion,
as counsel to the Seller and the Servicer, addressed to the
Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, with
respect to the characterization of the transfer of the
Assets by the Financing Originators to the Seller pursuant
to the Purchase Agreement as a sale and the non-
consolidation of Newcourt USA and the Seller.
(f) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have furnished to the
Representative their written opinion as counsel to the
Seller, addressed to the Underwriters and dated the Closing
Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that the Issuer has a perfected
priority first security interest in the Additional Series
Contracts.
(g) The Representative shall have received from
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to such matters as the Underwriters may require, and
the Seller shall have furnished to such counsel such
documents as they reasonably request for enabling them to
pass upon such matters.
(h) Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have
furnished to the Representative their written opinion, as
counsel to the Issuer Trustee, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(i) Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ shall have furnished to the
Representative their written opinion, as counsel to the
Indenture Trustee, addressed to the Underwriters and dated
the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(j) Each of the Seller and the Servicer shall have
furnished to the Representative a certificate, dated the
Closing Date, of any of its Chairman of the Board, President
or Vice President and its chief financial officer stating
that (i) such officers have carefully examined the
Registration Statement and the Final Prospectus, (ii) the
Final 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, (iii) the
representations and warranties of the Servicer or the
Seller, as the case may be, contained in this Agreement, the
Purchase Agreement and the Transaction Agreements are true
and correct in all material respects on and as of the
Closing Date, (iv) the Servicer or the Seller, as the case
may be, has complied in all material respects with all
agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the
Closing Date, (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and is
outstanding and no proceedings for that purpose have been
instituted and not terminated or, to the best of his or her
knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements,
there has been no material adverse change in the financial
position or results of operations of the Servicer or the
Seller, as applicable, or the Trust or any change, or any
development including a prospective change, in or affecting
the condition (financial or otherwise), results of
operations or business of the Servicer, the Seller or the
Trust except as set forth in or contemplated by the
Registration Statement and the Final Prospectus.
(k) Subsequent to the date of this Agreement, there
shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly
the business or properties of the Seller or the Servicer
which materially impairs the investment quality of the
Notes; (ii) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the over-the-
counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Seller
or the Servicer on any exchange or in the over-the-counter
market shall have been suspended or (iii) a general
moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (iv) an
outbreak or escalation of hostilities or a declaration by
the United States of a national emergency or war or such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with
the public offering or the delivery of the Notes on the
terms and in the manner contemplated in the Final
Prospectus.
(l) With respect to the letter of Ernst & Young LLP,
delivered to the Underwriters concurrently with the
execution of the applicable Terms Agreement (the "initial
letter"), the Seller shall have furnished to the
Underwriters a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to
the qualifications of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or with respect to matters
involving changes or developments since the respective dates
as of which specified financial information is given in the
Final 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.
(m) The Underwriters shall receive evidence
satisfactory to them that, on or before the Closing Date,
UCC-1 financing statements have been or are being filed in
each office in each jurisdiction in which such financing
statements are required to perfect the first priority
security interests created by the Pooling Agreement
reflecting the interest of the Collateral Agent in the
Receivables and the proceeds thereof.
(n) Subsequent to the execution and delivery of this
Agreement and the applicable Terms Agreement, (i) no
downgrading shall have occurred in the rating accorded the
Notes or any of the Seller's other debt securities by any
"nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with
positive implications of a possible upgrading), its rating
of the Notes or any of the Seller's other debt securities.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for the
Underwriters.
Section 7. Termination. The obligations of the
Underwriters hereunder may be terminated by the Representative,
in its absolute discretion, by notice given to and received by
the Seller and the Servicer prior to delivery of and payment for
the Notes if, prior to that time, any of the events described in
Section 6(i) or Section 6(m) shall have occurred.
Section 8. Defaulting Underwriters. (a) If, on the
Closing Date, any Underwriter or Underwriters default in the
performance of its or their obligations under this Agreement, the
Representative may make arrangements for the purchase of such
Notes by other persons satisfactory to the Seller and the
Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to
purchase the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date in
the respective proportions which the principal amount of Notes
set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I to the Term Agreement bears to the
aggregate principal amount of Notes set forth opposite the names
of all the remaining non-defaulting Underwriters in Schedule I to
the Terms Agreement; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase
any of the Notes on the Closing Date if the aggregate principal
amount of Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds one-eleventh
of the aggregate principal amount of the Notes to be purchased on
the Closing Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase in total more than 110% of the
principal amount of the Notes which it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representative and the
Seller do not elect to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Seller, except that the
provisions of Sections 9 and 13 shall not terminate and shall
remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not listed in Schedule
I to the Terms Agreement who, pursuant to this Section 8,
purchases Notes which a defaulting Underwriter agreed but failed
to purchase.
(b) Nothing contained herein shall relieve a
defaulting Underwriter of any liability it may have for damages
caused by its default. If other Underwriters are obligated or
agree to purchase the Notes of a defaulting Underwriter, either
the Representative or the Seller may postpone the Closing Date
for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Seller or counsel for the
Underwriters may be necessary in the Registration Statement, the
Final Prospectus or in any other document or arrangement, and the
Seller agrees to file promptly any amendment or supplement to the
Registration Statement or the Final Prospectus that effects any
such changes.
Section 9. Reimbursement of Underwriters' Expenses.
If (i) the Seller shall fail to tender the Notes for delivery to
the Underwriters for any reason permitted under this Agreement or
(ii) the Underwriters shall decline to purchase the Notes for any
reason permitted under this Agreement, the Seller shall reimburse
the Underwriters for the fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and
the proposed purchase of the Notes, and upon demand the Seller
shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Section 8 by reason of the
default of one or more Underwriters, the Seller shall not be
obligated to reimburse any defaulting Underwriter on account of
those expenses.
Section 10. Indemnification. (a) The Servicer and
the Seller shall, jointly and severally, indemnify and hold
harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as
the Underwriter) against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that
Underwriter may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment
thereof or supplement thereto, or in any Preliminary Final
Prospectus or the Final Prospectus or in any amendment thereof or
supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
shall reimburse each Underwriter for any legal or other expenses
reasonably incurred by that Underwriter directly in connection
with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Servicer nor the
Seller 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 Final Prospectus or the Final
Prospectus or in any amendment thereof or supplement thereto in
reliance upon and in conformity with the Underwriters'
Information.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Seller, each of its directors,
each officer of the Seller who signed the Registration Statement
and each person, if any, who controls the Seller within the
meaning of the Securities Act (collectively referred to for the
purposes of this Section 10 as the Seller), against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof, to which the Seller 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 Final Prospectus or the Final Prospectus or in any
amendment thereof or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the
written information furnished to the Seller through the
Representative by or on behalf of such Underwriter specifically
for use therein (the "Underwriters' Information"), and shall
reimburse the Seller for any legal or other expenses reasonably
incurred by the Seller in connection with investigating or
preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage or
liability (or any action in respect thereof) as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 10 except
to the extent it has been materially prejudiced by such failure;
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representative
shall have the right to employ counsel to represent jointly the
Representative and the other Underwriters (and their respective
controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought under
this Section 10) if, in the reasonable judgment of the
Representative, it is advisable for the Representative and the
other Underwriters and controlling persons to be jointly
represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Seller and
the Servicer. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall
use all reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
The obligations of the Servicer, the Seller and the
Underwriters in this Section 10 are in addition to any other
liability which the Servicer, the Seller or the Underwriters, as
the case may be, may otherwise have.
Section 11. Contribution. If the indemnification
provided for in this Section 11 is unavailable or insufficient to
hold harmless an indemnified party under Section 10(a) or (b),
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or any action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative
benefits received by the Servicer and the Seller on the one hand
and the Underwriters on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Servicer and the
Seller on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Servicer and the Seller on
the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased
hereunder (before deducting expenses) received by the Seller bear
to the total underwriting discounts and commissions received by
the Underwriters with respect to the Notes purchased hereunder,
in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Servicer or the Seller on the one hand or the Underwriters
on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Servicer, the
Seller and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 11 were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability referred to above in this Section 11 shall be deemed to
include, for purposes of this Section 11, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or any
action. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to
the public less the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to indemnify and contribute as provided in this Section 11 are
several in proportion to their respective underwriting
obligations and not joint.
Section 12. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Seller, the Servicer, and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Seller and the
Servicer and their respective successors and the controlling
persons and officers and directors referred to in Sections 10 and
11 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
Section 13. Expenses. The Seller and the Servicer,
jointly and severally, agrees with the Underwriters to pay (i)
any fees charged by rating agencies for rating the Notes; (ii)
all fees and expenses of the Issuer Trustee and the Indenture
Trustee and their respective counsel; (iii) any transfer taxes
payable in connection with its sale of the Notes pursuant to this
Agreement; and (iv) all other costs and expenses incident to the
performance of the obligations of the Seller and the Servicer
under this Agreement; provided that, except as otherwise provided
in this Section 13, the Underwriters shall pay their own costs
and expenses, including, the costs and expenses of their counsel,
the expenses of advertising any offering of the Notes made by the
Underwriters and the costs and expenses of KPMG Peat Marwick
incurred in connection with the delivery of certain comfort
letter(s); and provided further that the Underwriters shall pay
the costs of printing the Prospectus Supplement and the Basic
Prospectus for use in connection with the distribution of the
Notes.
Section 14. Survival. The respective indemnities,
rights of contribution, representations, warranties and
agreements of the Seller, the Servicer and the Underwriters
contained in this Agreement or made by or on their behalf,
respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of
any of them or any person controlling any of them.
Section 15. Notices. All communication hereunder
shall be in writing and, (i) if sent to the Underwriters will be
mailed, delivered or telecopied and confirmed to them at First
Union Capital Markets Corp., Asset Securitization Division, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-
0610, Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇
Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Asset Backed Finance Group, Telecopy Number:
(▇▇▇) ▇▇▇-▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) shall be delivered or sent
by mail, delivery or telecopy to such Underwriter at its address
set forth in its acceptance telex to the Representative, which
address will be supplied to any other party hereto by the
Representative upon request; (ii) if sent to the Seller, will be
mailed, delivered or telecopied and confirmed to them at the
address of the Seller set forth in the Registration Statement,
Attention: Chief Financial Officer; and (iii) if sent to the
Servicer, will be mailed, delivered or telecopied and confirmed
to them at the address of the Servicer set forth in the
Registration Statement, Attention: Vice President and Treasurer.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Seller and the
Servicer shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the
Underwriters by the Representative.
Section 16. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 17. Submission to Jurisdiction; Appointment of
Agent for Service; Currency Indemnity. (a) To the fullest
extent permitted by applicable law, each of the Seller and the
Servicer irrevocably submits to the jurisdiction of any Federal
or State court in the City, County and State of New York, United
States of America, in any suit or proceeding based on or arising
under this Agreement or any Terms Agreement, and irrevocably
agrees that all claims in respect of such suit or proceeding may
be determined in any such court. Each of the Seller and the
Servicer hereby irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding.
Each of the Seller and the Servicer hereby irrevocably designates
and appoints CT Corporation (the "Process Agent"), as its
authorized agent upon whom process may be served in any such suit
or proceeding, it being understood that the designation and
appointment of CT Corporation as such authorized agent shall
become effective immediately without any further action on the
part of the Seller or the Servicer. Each of the Seller and the
Servicer represents to each Underwriter that it has notified the
Process Agent of such designation and appointment and that the
Process Agent has accepted the same in writing. Each of the
Seller and the Servicer hereby irrevocably authorizes and directs
the Process Agent to accept such service. Each of the Seller and
the Servicer further agrees that service of process upon the
Process Agent and written notice of said service to the Seller or
the Servicer, as the case may be, mailed by first class mail or
delivered to the Process Agent at its principal office, shall be
deemed in every respect effective service of process upon the
Seller or the Servicer, as the case may be, in any such suit or
proceeding. Nothing herein shall affect the right of any
Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law. Each of the Seller
and the Servicer agrees that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful
manner.
(b) The obligation of the parties to make payments
hereunder is in U.S. dollars (U.S. dollars and such other
currencies referred to above being called the "Obligation
Currency") and such obligation shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the
Obligation Currency or any other realization in such other
currency, whether as proceeds of set-off, security, guarantee,
distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective
receipt by the party which is to receive such payment of the full
amount of the Obligation Currency expressed to be payable
hereunder, and the party liable to make such payment agrees to
indemnify the party which is to receive such payment (as an
additional, separate and independent cause of action) for the
amount (if any) by which such effective receipt shall fall short
of the full amount of the Obligation Currency expressed to be
payable hereunder and such obligation to indemnify shall not be
affected by judgment being obtained for any other sums due under
this Agreement or the applicable Terms Agreement.
Section 18. Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
Section 19. Headings. The headings herein are
inserted for convenience of reference only and are not intended
to be part of, or to affect the meaning or interpretation of,
this Agreement.
Section 20. Effectiveness. This Agreement shall
become effective upon execution and delivery of the applicable
Terms Agreement.
If you are in agreement with the foregoing, please sign
the counterpart hereof and return it to the Seller, whereupon
this letter and your acceptance shall become a binding agreement
among the Seller, the Servicer and the several Underwriters.
Very truly yours,
NEWCOURT RECEIVABLES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Martitsch
____________________________
Name: ▇. ▇▇▇▇▇▇▇▇ Martitsch
Title: Assistant Secretary
NEWCOURT CREDIT GROUP INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Treasurer
By: /s/ Geoff Ichii
_________________________________
Name: Geoff Ichii
Title: Vice President & Director
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP., as
Representative of the Underwriters named in
Schedule I to the Terms Agreement
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Exhibit A
Form of Terms Agreement
NEWCOURT RECEIVABLES ASSET TRUST
CLASS A __% ASSET BACKED NOTES, SERIES ____
TERMS AGREEMENT
Dated: _____ __, ____
To: _____________________________.
Re: Underwriting Agreement dated ________ __, ___
Series Designation: Series _____
Underwriters: The Underwriters named on Schedule I
attached hereto are the "Underwriters"
for the purpose of this Agreement and
for the purposes of the above referenced
Underwriting Agreement as such
Underwriting Agreement is incorporated
herein and made a part hereof.
Indenture Trustee: ________________________________________
Terms of the Notes:
Distribution Dates: The __ calendar day of each month,
commencing ________ __, ____.
Note Ratings: ___ by Standard & Poor's Ratings Services
___ by ▇▇▇▇▇'▇ Investors Service Inc.
Credit Enhancement
Provider: _____________________________________________
Supplement: _____________________________________________
Purchase Price: ____________________________________________
Underwriting Commissions,
Concessions and Discounts: _______________________________________
Closing Date: _______ __, ____, __.__ [a.m./p.m.],
[New York] Time
Location of Closing: ___________________________________
Payment for the [Wire transfer of same day funds]
Notes:
Blue Sky Fees: [Up to $_______]
Opinion Modifications: [None] [Specify]
Other securities being
offered concurrently: [None] [Specify]
Other Modifications
to the Underwriting
Agreement: [None] [Specify]
The Underwriters agree, severally and not jointly, subject
to the terms and provisions of the above referenced Underwriting
Agreement which is incorporated herein in its entirety and made a
part hereof, to purchase the respective principal amounts of the
above referenced Series of Notes set forth opposite their names
on Schedule I hereto.
[Representative]
As Representative of the
Underwriters named in Schedule I
hereto.
By:
Name:
Title:
Accepted:
Newcourt Receivables Corporation
By:
Name:
Title:
SCHEDULE I
UNDERWRITERS
$_________ Principal Amount of Class A __% Asset Backed Notes,
Series _____
Principal Amount
[Representative]
[Other Underwriters]