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EXHIBIT 1.1
$___________________
(approximate)
ORIX CREDIT ALLIANCE RECEIVABLES TRUST 2000-B
(ISSUER)
ORIX CREDIT ALLIANCE RECEIVABLES 2000-B CORPORATION
(TRUST DEPOSITOR)
ORIX CREDIT ALLIANCE, INC.
(ORIGINATOR)
Class A-1
Class A-2
Class a-3
Class a-4
Class B
Class C
RECEIVABLE-BACKED NOTES, SERIES 2000-B
UNDERWRITING AGREEMENT
August ____, 2000
First Union Securities, Inc.
301 South College Street, TW-9
Charlotte, North Carolina 28288-0610
Ladies and Gentlemen:
ORIX Credit Alliance Receivables 2000-B Corporation (the "Trust
Depositor") proposes to transfer certain equipment installment loans and sales
contracts, finance leases, and title retention and other security agreements
with various companies to ORIX Credit Alliance Receivables Trust 2000-B (the
"Trust") and the Trust proposes to issue the Receivable-Backed Notes, Series
2000-B, 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, to
be dated as of August ____, 2000 (the "Indenture"), between The Bank of New
York, 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
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herein but not defined shall have the meaning set forth or referenced in the
Transfer and Servicing Agreement (as defined below).
The Trust Depositor and Orix Credit Alliance, Inc. ("OCAI") hereby confirm
their agreement through this agreement (the "Underwriting Agreement"), with
First Union Securities, Inc. (the "Underwriter") to sell the Notes to the
Underwriter on the terms and conditions hereof, in the amount set forth opposite
its name on Schedule A. The Notes are more fully described in the Registration
Statement that the Trust Depositor has furnished to the Underwriter.
Simultaneously with the execution of the Indenture, the Trust Depositor
will enter into a transfer and servicing agreement (the "Transfer and Servicing
Agreement") with ORIX Credit Alliance, Inc. (in such capacity, the
"Originator"), pursuant to which the Originator will transfer to the Trust
Depositor all of its right, title and interest in and to the Contract Assets as
of the Cutoff Date and the Trust Depositor will transfer to the Trust all of its
right, title and interest in and to the Contract Assets as of the Cutoff Date.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor and OCAI, jointly and severally, represent and warrant
to the Underwriter that:
(a) The Trust Depositor has all requisite corporate power, authority and
legal right to own its property and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under the Notes and each of the Transaction
Documents to which it is a party.
(b) The execution and delivery of the Notes and each of the Transaction
Documents to which it is a party, the incurrence of the obligations herein and
therein set forth and the consummation of the transactions contemplated
hereunder and thereunder have been duly authorized by the board of directors of
the Trust Depositor and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and validly
executed and delivered by the Trust Depositor.
(d) Each of the Transaction Documents (other than the Underwriting
Agreement) to which it is a party and the Notes will be executed and delivered
by the Trust Depositor on or before the Closing Date, and when executed and
delivered by the other parties thereto, will constitute a valid and binding
agreement of the Trust Depositor, enforceable against the Trust Depositor in
accordance with their terms, except to the extent that (i) the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership or other similar laws now or hereafter in effect
affecting the enforcement of creditors' or other obligees' rights in general,
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought and (iii) certain
remedial provisions of the
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Indenture may be unenforceable in whole or in part under the Uniform Commercial
Code (the "UCC"), but the inclusion of such provisions does not render the other
provisions of the Indenture invalid and, notwithstanding that such provisions
may be unenforceable in whole or in part, the Indenture Trustee, on behalf of
the Noteholders, will be able to enforce the remedies of a secured party under
the UCC.
(e) The Notes will be issued pursuant to the terms of the Indenture and,
when executed by the Trust and authenticated by the Indenture Trustee in
accordance with the Indenture and delivered pursuant to the Underwriting
Agreement, will be validly issued and outstanding and entitled to the benefits
of the Indenture. The Notes will be in the form contemplated by the Indenture
and will conform in all material respects to the description thereof contained
in the Prospectus (as defined herein) and Registration Statement, each as
amended or supplemented.
(f) The Trust Depositor is not in violation of any requirement of law or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, lease or other instrument to which it is a party or by which it is bound
or to which any of its property is subject, which violations or defaults
separately or in the aggregate would have a material adverse effect on the Trust
Depositor.
(g) Neither the issuance and sale of the Notes, nor the execution and
delivery by the Trust Depositor of the Notes or the Transaction Documents to
which it is a party, nor the incurrence by the Trust Depositor of the
obligations herein and therein set forth, nor the consummation of the
transactions contemplated hereunder or thereunder, nor the fulfillment of the
terms hereof or thereof does or will (i) violate any requirement of law
presently in effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (ii) conflict with, or result in a
breach of, or constitute a default under, any indenture, contract, agreement,
deed, lease, mortgage or instrument to which it is a party or by which it or its
properties are bound, or (iii) result in the creation or imposition of any Lien
(as defined herein) upon any of its property or assets, except for those
encumbrances created under the Indenture.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by the Trust Depositor of the Notes or the
Transaction Documents to which it is a party, or to the consummation of the
transactions contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof have been or will have been obtained on or before the
Closing Date.
(i) All actions required to be taken by the Trust Depositor as a condition
to the offer and sale of the Notes as described herein or the consummation of
any of the transactions described in the Prospectus, the Registration Statement
and the Transaction Documents have been or, prior to the Closing Date, will be
taken.
(j) The representations and warranties made by the Trust Depositor in the
Transaction Documents and made in any Officer's Certificate of the Trust
Depositor delivered
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pursuant to the Transaction Documents will be true and correct of the time made
and on and as of the Closing Date as if set forth herein.
(k) The Trust Depositor agrees that it has not granted, assigned, pledged
or transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Contract
Assets except as provided in, or expressly 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 333-43312),
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
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under the Securities Act, is herein called the "Registration Statement", and the
prospectus, in the form filed by the Trust Depositor with the Commission
pursuant to Rule 424(b) under the Securities Act or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is hereinafter called the "Prospectus". There are
no contracts or documents of the Trust Depositor that are required to be
described in the Prospectus, or filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations that have not been
so described, filed or incorporated by reference 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) Arthur Anderson 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,
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the Trust Depositor will: (i) have good title to the interest in the Contract
Assets conveyed by OCAI, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest not permitted under the
Transfer and Servicing Agreement (collectively, "Liens"); (ii) not have assigned
to any Person (other than the Trust) any of its right, title or interest in the
Contract Assets, or the Transaction Documents; and (iii) have the power and
authority to pledge its interest in the Contract Assets to the Trust. Upon
execution and delivery of the Transfer and Servicing Agreement by the Indenture
Trustee and any related instruments of pledge, transfer or assignment by the
Trust Depositor, the Trust will have a valid security interest in all of the
Trust Depositor's right, title and interest in and to the Contract Assets. Upon
execution of the Indenture, the Indenture Trustee will have a valid security
interest in all of the Trust's right, title and interest in and to the Contract
Assets. Upon delivery to the Underwriter of the Notes, the Underwriter will have
good title to the Notes free of any Liens.
(u) As of the Cutoff Date, the Contracts met the eligibility criteria
described in the Prospectus and conformed to the descriptions thereof contained
in the Prospectus.
(v) Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Transaction Documents and the Notes have
been paid or will be paid at or prior to the Closing Date.
(w) All OCAI-Provided Information was true and correct in all material
respects as of the date it was provided to the Underwriter. The term
"OCAI-Provided Information" means the information contained on any computer tape
furnished to the Underwriter or provided by other written means, electronic
transmission or computer disk by the Trust Depositor or OCAI concerning the
assets comprising the Trust Estate; and
(x) Neither the Trust nor the Trust Depositor are required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and the rules and regulations of the Commission thereunder.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF OCAI.
OCAI represents and warrants to the Underwriter that:
(a) The execution and delivery of the Notes and each of the Transaction
Documents to which it is a party, the incurrence of the obligations herein and
therein set forth and the consummation of the transactions contemplated
hereunder and thereunder have been duly authorized by the board of directors of
OCAI and all other necessary action has been taken.
(b) The Underwriting Agreement has been duly authorized and validly
executed and delivered by OCAI.
(c) Each of the Transaction Documents (other than the Underwriting
Agreement) to which it is a party will be executed and delivered by OCAI on or
before the Closing Date, and when executed and delivered by the other parties
thereto, will constitute a valid and binding
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agreement of OCAI, enforceable against OCAI in accordance with their terms,
except to the extent that (i) the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, receivership or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' or other obligees' rights in general, (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) certain remedial provisions of the
Indenture may be unenforceable in whole or in part under the UCC, but the
inclusion of such provisions does not render the other provisions of the
Indenture invalid and, notwithstanding that such provisions may be 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 jurisdiction of incorporation, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or the conduct of
its businesses requires such qualification, and has all power and authority
necessary to own or hold properties and to conduct the businesses in which
engaged, except where the failure to so qualify or have such power or authority
could not have, individually or in the aggregate, a material adverse effect on
the condition (financial or otherwise), results of operations, business or
prospects of 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
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material respect, and no event has occurred that, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is not in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject, except any violation or default that would
not have a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of OCAI.
(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 agrees to take all action required
by the Transfer and Servicing Agreement in order to maintain the security
interest in the Contract Assets granted pursuant to the Transfer and Servicing
Agreement.
SECTION 3. 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.
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\ (f) The Trust has its chief executive office and place of business (as
such terms are used in Article 9 of the UCC) in Newark, Delaware. The Trust
agrees that it will not change the location of such office to a location outside
of Newark, Delaware, without at least 30 days prior written notice to the OCAI,
the Indenture Trustee and the Rating Agencies.
SECTION 4. PURCHASE AND SALE.
Subject to the terms and conditions and in reliance upon the covenants,
representations and warranties herein set forth, the Trust Depositor agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the Trust
Depositor, the principal amount of Notes set forth Schedule A hereto. The
purchase price for the Notes shall be as set forth in Schedule A hereto.
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 Sullivan & Cromwell, 125
Broad Street, New York, New York, New York City time, on August ____, 2000, or
at such other time not later than seven (7) full business days thereafter as the
Underwriter and the Trust Depositor determine, such time being herein referred
to as the "Closing Date." Each of the Notes to be so delivered shall be
represented by one or more Definitive Notes registered in the name of Cede &
Co., as nominee for The Depository Trust Company ("DTC"). Definitive Notes
evidencing the Notes will be available only under the limited circumstances
specified in the Indenture (other than such Notes issued in the name of Cede &
Co. as nominee for of DTC). The Trust Depositor shall make such Definitive Notes
representing the Notes available for inspection by the Underwriter at the office
at which the Notes are to be delivered no later than five hours before the close
of business in New York City on the business day prior to the Closing Date.
SECTION 6. THE UNDERWRITER.
(a) 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.
(b) The Underwriter hereby represents and warrants to OCAI, the Trust
Depositor and the Trust that, if the Underwriter should use electronic mail or
any other method of electronically delivering the Preliminary Prospectus, that
such electronic mail or other method of delivery shall only be a vehicle for
transmitting the Preliminary Prospectus and shall not contain any text, graphics
or hyperlinks whatsoever.
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.
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(b) During the period that a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales of such Notes
(such period being hereinafter sometimes referred to as the "prospectus delivery
period"), before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Trust Depositor will furnish to the Underwriter
a copy of the proposed amendment or supplement for review and will not file any
such proposed amendment or supplement to which the Underwriter reasonably
objects.
(c) During the prospectus delivery period, the Trust Depositor will advise
the Underwriter, promptly after it receives notice thereof, (i) when any
amendment to the Registration Statement shall have become effective; (ii) of any
request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for any additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, (iv) of the issuance by the Commission of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceedings for that purpose and (v) of any
notification with respect to any suspension of the qualification of the Notes
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and will use its best efforts to prevent the
issuance of any such 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
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Notes, whichever first occurs, the Trust Depositor will deliver to the
Underwriter, (i) the annual statements of compliance, (ii) the annual
independent certified public accountants' reports furnished to the Indenture
Trustee, (iii) all documents required to be distributed to the Noteholders, (iv)
all documents filed with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder, in each case as provided to the Indenture
Trustee or filed with the Commission, as soon as such statements and reports are
furnished to the Indenture Trustee or filed or as soon thereafter as
practicable, (v) any order of the Commission under the Securities Act or the
Exchange Act in regard to the Trust, the Trust Depositor or to OCAI with respect
to the Trust or the Trust Depositor, or pursuant to a "no action" letter
obtained from the staff of the commission by the Trust, the Trust Depositor or
OCAI with respect to the Trust or the Trust Depositor and affecting the Trust,
the Trust Depositor or OCAI and (vi) from time to time, such other information
concerning the Trust, the Trust Depositor as the Underwriter, may reasonably
request.
(h) To the extent, if any, that the rating provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Trust or the Trust Depositor, the Trust Depositor or the Trust, as
applicable shall furnish such documents and take any such other actions.
(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
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<PAGE> 12
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 Moody's, "A-1+" by S&P and "F1+/AAA"
by Fitch, the Class A-2 Notes shall be rated no lower than "Aaa" by Moody's,
"AAA" by S&P and "AAA" by Fitch, the Class A-3 Notes shall be rated no lower
than "Aaa" by Moody's, "AAA" by S&P and "AAA" by Fitch, the Class A-4 Notes
shall be rated no lower than "Aaa" by Moody's, "AAA" by S&P and "AAA", by Fitch,
the Class B Notes shall be rated no lower than "A2" by Moody's, "A" by S&P and
"A" by Fitch, and the Class C Notes shall be rated no lower than "Baa2" by
Moody's, "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) Hal B. Parkerson shall have furnished to the Underwriter his written
opinion, as general counsel to OCAI and the Trust Depositor, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee) substantially to the effect set forth on Annex A.
(e) Sullivan & Cromwell shall have furnished to the Underwriter their
written opinions, as special New York counsel to OCAI, the Trust Depositor and
the Trust, addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriter substantially to the effect
of Annexes B-1 and B-2 (which Annex B-1 opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee).
(f) Sullivan & Cromwell shall have furnished to the Underwriter, their
written opinions, as counsel to the Trust Depositor and OCAI, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which
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<PAGE> 13
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) Riker, Danzig, Scherer, Hyland and Perretti shall have furnished to
the Underwriter their written opinion, as special New Jersey counsel to OCAI,
the Trust Depositor and the Trust, addressed to the Underwriter and dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriter
(which opinion will also be delivered to the Rating Agencies, all of whom shall
be entitled to rely on such opinion as if an addressee) substantially to the
effect set forth on Annex C.
(h) Riker, Danzig, Scherer, Hyland and Perretti shall have furnished to
the Underwriter their written opinion, as special New Jersey tax counsel to
OCAI, the Trust Depositor and the Trust, addressed to the Underwriter and dated
the Closing Date, in form and substance reasonably satisfactory to the
Underwriter (which opinion will also be delivered to the Rating Agencies, all of
whom shall be entitled to rely on such opinion as if an addressee) substantially
to the effect set forth on Annex D.
(i) Richards, Layton & Finger, P.A. shall have furnished to the
Underwriter their written opinion, as special Delaware counsel to The Bank of
New York (Delaware) ("BNY (DE)"), addressed to the Underwriter and dated the
Closing Date, in form and substance reasonably satisfactory to the Underwriter
(which opinion will also be delivered to the Rating Agencies, all of whom shall
be entitled to rely on such opinion as if an addressee) substantially to the
effect set forth on Annex E.
(j) Richards, Layton & Finger, P.A. shall have furnished to the
Underwriter their written opinion, as special Delaware counsel to the Trust
Depositor and the Trust, addressed to the Underwriter and dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriter (which
opinion will also be delivered to the Rating Agencies, all of whom shall be
entitled to rely on such opinion as if an addressee) substantially in form of
Annex F.
(k) Seward & Kissell shall have furnished to the Underwriter their written
opinion, as special counsel to the Indenture Trustee, addressed to the
Underwriter and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter (which opinion will also be delivered to the
Rating Agencies, all of whom shall be entitled to rely on such opinion as if an
addressee) substantially to the effect set forth on Annex G.
(l) The Underwriter shall have received from Moore & Van Allen, PLLC,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Underwriter may require, and the 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
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<PAGE> 14
Underwriter a certificate, dated the Closing Date, of any of its Chairman of the
Board, President or Vice President and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statement and the
Prospectus, (ii) the Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that each of
the Trust Depositor and OCAI may exclude the Underwriter's Information (as
defined in Section 10(d) herein) from such representation), (iii) the
representations and warranties of OCAI or the Trust Depositor, as the case may
be, contained in this Underwriting Agreement and the Transaction Documents are
true and correct in all material respects on and as of the Closing Date, (iv)
OCAI or the Trust Depositor, as the case may be, have complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder and under such
agreements at or prior to the Closing Date, (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and is outstanding
and no proceedings for that purpose have been instituted and not terminated or,
to the best of his or her knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements, there has been no
material adverse change in the financial position or results of operations of
OCAI or the Trust Depositor, as applicable, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations or business of OCAI or the Trust Depositor except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(n) The Indenture Trustee shall have furnished to the Underwriter a
certificate of the Indenture Trustee, signed by one or more duly authorized
officers of the Indenture Trustee, dated 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 Arthur Andersen LLP, delivered to the
Underwriter, concurrently with the execution of this Underwriting Agreement (the
"initial letter"), the Trust
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<PAGE> 15
Depositor shall have furnished to the Underwriter, a letter (the "bring-down
letter") of such accountants, addressed to the Underwriter and dated the Closing
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualifications of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down
letter (or with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by its initial letter and
(iii) confirming in all material respects the conclusions and findings set forth
in its initial letter.
(q) The Underwriter shall receive evidence satisfactory to it that, on or
before the Closing Date, UCC-l financing statements have been or are being filed
in each office in each jurisdiction in which such financing statements are
required (i) to perfect the first priority security interests created by the
Transfer and Servicing Agreement reflecting the interest of the Trust Depositor
in the Contract Assets and the proceeds thereof and (ii) to perfect the first
priority security interest created by the Indenture, reflecting the interest of
the Indenture Trustee in the Contract Assets and the proceeds thereof as
described in the Prospectus.
(r) Subsequent to the execution and delivery of this Underwriting
Agreement, (i) no downgrade, withdrawal or qualification shall have occurred
with respect to the rating accorded the Notes or any of the Trust Depositor's
other debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act and (ii) no such organization shall have
publicly announced that it 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.
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SECTION 10. INDEMNIFICATION.
(a) OCAI, the Trust Depositor and the Trust shall, jointly and severally,
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Underwriter may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or in any
Preliminary Prospectus or the Prospectus or in any amendment thereof or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that neither OCAI
nor the Trust Depositor shall be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any Registration Statement as originally filed or in any amendment thereof
or supplement thereto, or in any Preliminary Prospectus or the Prospectus or in
any amendment thereof or supplement thereto in reliance upon and in conformity
with the Underwriter's Information (as defined in Section 10(d) herein).
(b) The Underwriter shall indemnify and hold harmless OCAI and the Trust
Depositor, against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which OCAI and the Trust Depositor or any one
or more thereof may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action 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,
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however, that the failure to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 10, except to the extent
it has been materially prejudiced by such failure; and, provided further, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 10.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it that are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially 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.
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(d) The Underwriter confirms that the Underwriter's Information, as
defined herein, contained in the Prospectus is correct and constitutes the only
information furnished in writing to the Trust Depositor and OCAI by or on behalf
of the Underwriter specifically for inclusion in the Registration Statement and
the Prospectus. The "Underwriter's Information" includes the following under the
caption "Plan of Distribution": (i) the chart listing the Underwriter of the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the Class B Notes and the Class C Notes, (ii) the paragraph immediately
following the chart described in clause (i), and (iii) the charts listing the
Underwriter's Selling Concession and Reallowance Concession.
(e) The obligations of OCAI, the Trust Depositor and the Underwriter in
this Section 10 are in addition to any other liability that OCAI, the Trust
Depositor or the Underwriter, as the case may be, may otherwise have.
SECTION 11. CONTRIBUTION.
If the indemnification provided for in Section 10 is unavailable or
insufficient to hold harmless an indemnified party under Section 10(a) or (b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or any action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by OCAI and the Trust Depositor on the one hand and the
Underwriter on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of OCAI and the
Trust Depositor on the one hand and the Underwriter on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or any action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by OCAI and the Trust
Depositor on the one hand and the Underwriter on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes 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
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connection with investigating or defending any such claim or any action.
Notwithstanding the provisions of this Section 11, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public less the amount of any damages that the Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 12. TERMINATION OF AGREEMENT.
The Underwriter may terminate this Underwriting Agreement immediately upon
notice to OCAI and the Trust Depositor, at any time at or prior to the Closing
Date if any of the events or conditions described in Section 8(k) of this
Underwriting Agreement shall occur and be continuing. In the event of any such
termination, the covenants set forth in Section 7, the provisions of Section 9,
the indemnity agreement set forth in Section 10 and the provisions of Sections
11 and this Section 12 shall remain in effect.
SECTION 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Underwriting Agreement shall inure to the benefit of and be binding
upon the Underwriter, the Trust Depositor, OCAI, and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Trust Depositor and OCAI and their respective
successors and the controlling persons and officers and directors, and their
heirs and legal assigns, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or any provision contained herein.
SECTION 14. EXPENSES.
The Trust Depositor and OCAI, jointly and severally, agree with the
Underwriter to pay (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (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
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<PAGE> 20
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, 301 South College
Street, TW-9, Charlotte, North Carolina, 28288-0610, Telecopy Number: (704)
374-3254; if sent to the Trust Depositor, will be mailed, delivered or
telecopied and confirmed to them at the addresses of the Trust Depositor set
forth in the Registration Statement, Attention: Treasurer; and (iii) if sent to
OCAI, will be mailed, delivered or telecopied and confirmed to them at the
address of OCAI set forth in the Registration Statement, Attention: Chief
Financial Officer. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Trust Depositor and OCAI shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriter.
SECTION 17. GOVERNING LAW, JURY WAIVER.
(a) THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK; AND
(b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PERSON HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER 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
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and the same instrument.
SECTION 19. HEADINGS.
The headings herein are inserted for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of, this
Underwriting Agreement.
SECTION 20. EFFECTIVENESS.
This Underwriting Agreement shall become effective upon execution and
delivery.
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<PAGE> 22
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 2000-B
CORPORATION
By:
Name:
Title:
ORIX CREDIT ALLIANCE RECEIVABLES TRUST
2000-B
By: ORIX Credit Alliance Receivables
2000-B Corporation, as Trust
Depositor
By:
Name:
Title:
ORIX CREDIT ALLIANCE, INC.
By:
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date hereof.
FIRST UNION SECURITIES, INC.
By:
Name:
Title:
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<PAGE> 23
SCHEDULE A
Date of Underwriting Agreement: August ____, 2000
Underwriter: First Union Securities, Inc.
Underwriter Address: First Union Securities, Inc.
One First Union Center, TW-9
301 South College Street
Charlotte, NC 28288-0610
Title, Purchase Price and Description of Notes:
Class A-1 Notes
Title: ______________% Class A-1 Receivable-Backed
Notes, Series 2000-B
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
September 15, 2000
Maturity: September, 2001 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to the Indenture Trustee) and (iv)
unreimbursed Servicer Advances.
Class A-2 Notes
Title: ______________% Class A-2 Receivable-Backed
Notes, Series 2000-B
Price to public: ______________%
Purchase price: ______________%
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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
September 15, 2000
Maturity: October, 2002 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to the Indenture Trustee) and (iv)
unreimbursed Servicer Advances.
Class A-3 Notes
Title: ______________% Class A-3 Receivable-Backed
Notes, Series 2000-B
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
September 15, 2000
Maturity: July, 2005 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to
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<PAGE> 25
the Indenture Trustee) and (iv) unreimbursed
Servicer Advances.
Class A-4 Notes
Title: ______________% Class A-4 Receivable-Backed
Notes, Series 2000-B
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
September 15, 2000
Maturity: September, 2007 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to the Indenture Trustee) and (iv)
unreimbursed Servicer Advances.
Class B Notes
Title: ______________% Class B Receivable-Backed
Notes, Series 2000-B
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
September 15, 2000
Maturity: May, 2008 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
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<PAGE> 26
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to the Indenture Trustee) and (iv)
unreimbursed Servicer Advances.
Class C Notes
Title: ______________% Class C Receivable-Backed
Notes, Series 2000-B
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
September 15, 2000
Maturity: August, 2008 Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed
in whole, but not in part, on any
Distribution Date at the Trust Depositor's
option if the Aggregate Contract Principal
Balance at such time is less than 15% of the
initial Aggregate Contract Principal Balance
as of the Cutoff Date.
Notes remaining outstanding shall be
redeemed in full on any Distribution Date if
the aggregate amounts on deposit in the
Collection Account, the Reserve Fund and the
Spread Fund are greater than or equal to the
sum of (i) the entire outstanding note
principal balance, (ii) the interest accrued
thereon, (iii) any accrued and unpaid
Servicing Fee (including therein amounts
owed to the Indenture Trustee) and (iv)
unreimbursed Servicer Advances.
Closing Date, Time and Location:
Date: August ____, 2000
Time: 9:00 a.m.
Location: Sullivan & Cromwell, New York, New York
26
