EXHIBIT 1.1
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
5.28% CLASS A-1 LEASE-BACKED NOTES
5.78% CLASS A-2 LEASE-BACKED NOTES
5.60% CLASS A-3 LEASE-BACKED NOTES
5.75% CLASS A-4 LEASE-BACKED NOTES
6.20% CLASS B LEASE-BACKED NOTES
UNDERWRITING AGREEMENT
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September 25, 1998
XXXXXX BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Provident Lease Receivables Corporation, a Delaware corporation
(the "Transferor"), as originator of the Provident Equipment Lease Trust
1998-A, (the "Issuer"), and Information Leasing Corporation, an Ohio
corporation ("ILC"), hereby agree with the Underwriters (defined below) as
follows:
Section 1. Issuance and Sale of Notes. Transferor proposes to
cause Issuer to issue and sell $73,303,000 (the "Class A-1 Initial
Principal Amount") of 5.28% Class A-1 Lease-Backed Notes (the "Class A-1
Notes"); $19,242,000 (the "Class A-2 Initial Principal Amount") of 5.78%
Class A-2 Lease-Backed Notes (the "Class A-2 Notes"); $90,935,000 (the
"Class A-3 Initial Principal Amount") of 5.60% Class A-3 Lease-Backed Notes
(the "Class A-3 Notes"); $18,576,000 (the "Class A-4 Initial Principal
Amount") of 5.75% Class A-4 Lease-Backed Notes (the "Class A-4 Notes");
$7,687,000 (the "Class B Initial Principal Amount"; together with the Class
A-1 Initial Principal Amount, the Class A-2 Initial Principal Amount, the
Class A-3 Initial Principal Amount and the Class A-4 Initial Principal
Amount, the "Initial Principal Amount") of 6.20% Class B Lease-Backed Notes
(the "Class B Notes"; together with the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, the "Notes") and
$6,589,000 of 6.73% Lease-Backed Certificates (the "Certificates"; together
with the Notes, the "Securities"). The Notes will be issued pursuant to an
Indenture, dated as of September 1, 1998 (the "Indenture"), between Issuer
and Norwest Bank Minnesota, National Association, a national
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banking association (the "Indenture Trustee"). The Notes are more fully
described in the Final Prospectus (as defined below), a copy of which
Transferor is furnishing to Underwriters. The Notes will evidence secured
obligations of Issuer. The assets of Issuer will include a pool of Leases
and certain interests in the underlying Equipment.
The Notes will be sold by Transferor to the underwriters listed on
Schedule A hereto (the "Underwriters") in accordance with the terms of this
agreement.
Simultaneously with the issuance and sale of the Notes as
contemplated in this Agreement, Transferor will sell the Certificates
pursuant to a certificate purchase agreement dated as of the date hereof
(the "Certificate Purchase Agreement") among Transferor, ILC and Xxxxxx
Brothers Inc.
The terms which follow, when used in this Agreement, shall have
the meanings indicated:
"Effective Date" means each date that the Registration
Statement and any post-effective amendment or amendments thereto
became or become effective under the Securities Act.
"Execution Time" means the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" means any prospectus delivered to
purchasers of the Notes at or before the time of confirmation of
their purchases.
"Preliminary Prospectus" means any preliminary prospectus
included in the Registration Statement, and which, as of the
Effective Date, omits Rule 430A Information.
"Registration Statement" means the registration statement
(Registration Number 333-58909), including amendments,
incorporated documents, exhibits and financial statements, in the
form in which it has or shall become effective and, if any
post-effective amendment thereto becomes effective prior to the
Issuance Date, shall also mean such registration statement as so
amended. Such term shall include Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule
430A.
"Rule 424" and "Rule 430A" refers to such rules under the
Securities Act.
"Rule 430A Information" means information with respect to
the Notes and the offering thereof permitted, pursuant to Rule
430A, to be omitted from the Registration Statement when it
becomes effective.
"Underwriting Information" has the meaning given to such term
in Section 8(b).
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Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in Appendix X to the Indenture.
Section 2. Purchase and Sale of Notes.
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(a) Subject to the terms and conditions and in reliance upon the
covenants, representations and warranties set forth herein, each
Underwriter agrees to purchase from Transferor the Initial Principal Amount
of the Notes pursuant to the terms of this Agreement on the Issuance Date
at a purchase price equal to the aggregate of the Initial Principal Amount
of each class of Notes purchased by such Underwriter times the applicable
underwriter's discount (the "Purchase Price") set forth on Schedule A
attached hereto.
(b) The obligations of each of the Underwriters hereunder to
purchase the respective Notes of each Class shall be several and not joint.
Each Underwriter's obligation shall be to purchase the aggregate principal
amount of Notes of the related Class as is indicated with respect to each
Underwriter on Schedule A attached hereto. The rights of the Issuer, ILC
and the non-defaulting Underwriter shall be as set forth in Section 13
hereof.
(c) It is understood that Underwriters propose to offer the Notes
for sale to the public in the manner set forth in the Final Prospectus.
Section 3. Delivery and Payment. (a) Delivery of and payment for
the Notes purchased by Underwriters shall be made at the offices of Xxxxx,
Brown & Xxxxx, Chicago, Illinois, at 10:00 a.m., Chicago time, on September
30, 1998, or such other place and time as the parties hereto agree (the
"Issuance Date"). Delivery of the Notes shall be made against payment of
the purchase price in immediately available funds drawn to the order
Transferor. The Notes to be so delivered will be initially represented by
one or more Notes registered in the name of Cede & Co., the nominee of DTC.
The interests of beneficial owners of the Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
Notes will be available only under limited circumstances described in the
Pooling and Servicing Agreement.
Transferor and ILC agree to have the Notes available for
inspection by Underwriters in Chicago, Illinois, not later than 1:00 p.m.,
Chicago time, on the Business Day prior to the Issuance Date.
Section 4. Representations and Warranties of Transferor.
(a) Transferor hereby represents and warrants to, and agrees with, Underwriters
as follows:
(i) Transferor meets the requirements for use of Form S-1
under the Securities Act of 1933 (the "Securities Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No.
333-58909) on such form, including the Preliminary Prospectus
relating to the Notes, on such Form S-1 for the registration under
the Securities Act of the Notes. Transferor may have filed one or
more amendments thereto, including the related Preliminary
Prospectus, each of
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which has previously been furnished to Underwriters. Transferor
will file with the Commission either, (A) prior to the
effectiveness of such Registration Statement, a further amendment
thereto (including the form of Final Prospectus) or (B) after
effectiveness of such Registration Statement, a Final Prospectus
in accordance with Rules 430A and 424(b)(1) or (4). In the case of
clause (B), Transferor will include in such Registration
Statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Securities Act
and the rules thereunder to be included with respect to the Notes
and the offering thereof. As filed, such amendment and form of
Final Prospectus, or such Final Prospectus, shall include all Rule
430A Information and, except to the extent Underwriters shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to Underwriters prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectus which has previously been furnished to Underwriters) as
Transferor has advised Underwriters, prior to the Execution Time,
will be included or made therein.
(ii) On the Effective Date, the Registration Statement
did or will comply in all material respects with the applicable
requirements of the Securities Act and the rules thereunder; on
the Effective Date and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Issuance
Date, the Final Prospectus will comply in all material respects
with the applicable requirements of the Securities Act and the
rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading; and the Final Prospectus, as of its date
and on the Issuance Date, did not or will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, that Transferor makes no representations or warranties
as to the Underwriting Information.
(iii) This Agreement has been duly authorized, executed
and delivered by Transferor and constitutes a legal, valid and
binding agreement of Transferor enforceable in accordance with its
terms, except that the provisions hereof relating to
indemnification of Underwriters may be subject to limitations of
public policy.
(iv) Each of the Basic Documents to which Transferor is a
party have been duly authorized by Transferor and, when executed
and delivered by Transferor, will constitute the legal, valid and
binding obligation of Transferor, enforceable in accordance with
its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may
be brought.
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(v) The direction by Transferor to Indenture Trustee to
authenticate the Notes has been duly authorized by Transferor and,
when duly and validly executed by Trustee, authenticated by
Indenture Trustee and delivered in accordance with the Indenture
and this Agreement, will be the legal, valid and binding
obligations of Issuer, enforceable in accordance with their terms,
and entitled to the benefits of the Indenture, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(vi) The sale of the Notes and the performance of this
Agreement and the Basic Documents to which Transferor is a party
by Transferor will (A) not conflict with or result in a breach of,
and will not constitute a default under any of the provisions of,
its certificate of incorporation or any law, governmental rule or
regulation, or any judgment, decree or order binding on Transferor
or its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other agreement or instrument
to which Transferor is a party or by which it is bound or (B) not
result in the creation or imposition of any adverse claim and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the sale of the Notes or the consummation by
Transferor of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Act and
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by Underwriters.
(vii) Neither Transferor nor Issuer is, and will not, as
of the Issuance Date, be an "investment company" under the
Investment Company Act of 1940 (the "1940 Act").
(viii) Transferor hereby makes and repeats each of the
representations and warranties set forth in Section 3.1 of the
Pooling and Servicing Agreement. Such representations and
warranties are incorporated by reference in this Section 4(a) and
Underwriters may rely thereon as if such representations and
warranties were fully set forth herein.
(b) ILC hereby represents and warrants to and agrees with
Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered, each of the Basic Documents to which ILC is a party has
been duly authorized, and this Agreement constitutes, and when
executed and delivered, each of such Basic Documents will
constitute the legal, valid and binding obligations of ILC,
enforceable in accordance with their respective terms, except that
(A) the enforcement thereof may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and
(2) general principles of equity and the discretion of the court
before which any proceeding therefor may be
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brought, and (B) the provisions hereof relating to indemnification
of Underwriters may be subject to limitations of public policy.
(ii) The performance of each of this Agreement and the
Basic Documents to which ILC is a party by ILC, and the
consummation of ILC of the transactions herein and therein
contemplated, will (A) not conflict with or result in a breach of,
and will not constitute a default under any of the provisions of
its certificate of incorporation or by-laws or any law,
governmental rule or regulation, or any judgment, decree or order
binding on ILC or its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other agreement or
instrument to which ILC is a party or by which it is bound or (B)
not result in the creation or imposition of any adverse claim and
no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required for the consummation by ILC of the transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Act and
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by Underwriters.
(iii) ILC hereby makes and repeats the representations
and warranties set forth in Articles III and V of the Contribution
Agreement. Such representations and warranties are incorporated by
reference in this Section 4(b), and Underwriters may rely thereon
as if such representations and warranties were fully set forth
herein.
(iv) ILC represents and warrants it has delivered to
Underwriters complete and correct copies of balance sheet and
statements of income and retained earnings reported by The
Provident Bank, of which ILC is a wholly-owned subsidiary for the
fiscal year ended December 31, 1997. Except as set forth in or
contemplated in the Registration Statement and the Final
Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of The Provident Bank, ILC or
any other consolidated subsidiary of the Provident Bank since
December 31, 1997.
(v) Any taxes, fees and other governmental charges
arising from the execution and delivery of this Agreement and the
Basic Documents and in connection with the execution, delivery and
issuance of the Notes and with the transfer of the Leases and the
Equipment, have been paid or will be paid by ILC or Transferor, as
applicable.
(c) Each of Transferor and ILC represents and warrants to
Underwriters, jointly and severally, that:
(i) There is no pending or threatened action, suit or
proceeding against or affecting it in any court or tribunal or
before any arbitrator of any kind or before or by any governmental
authority (A) asserting the invalidity of this Agreement, any
Basic Document or the Notes, (B) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions
contemplated by this Agreement or the Basic
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Documents or (C) seeking any determination or ruling that might
materially and adversely affect (x) its performance or its
obligations under this Agreement or the Basic Documents (as
applicable) or (y) the validity or enforceability of this
Agreement, any Basic Document or the Notes.
(ii) Ernst & Xxxxx is an independent public accountant
with respect to The Provident Bank, ILC and Transferor within the
meaning of the Securities Act and the rules and regulations
promulgated thereunder.
Section 5. Covenants of Transferor and ILC. Transferor and ILC,
jointly and severally, hereby covenant and agree with Underwriters as
follows:
(a) To use best efforts to cause the Registration Statement, and
any amendment thereto, if not effective as of the date hereof, to become
effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), Transferor will file the Final Prospectus,
properly completed, pursuant to Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to Underwriter of such
timely filing. Transferor will promptly advise Underwriters (i) when the
Registration Statement shall have become effective, (ii) when any amendment
thereof shall have become effective, (iii) of any request by the Commission
for any amendment or supplement of the Registration Statement or the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose, and (v) of the receipt by Transferor of any notification
with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. Transferor will not file any amendment of the Registration
Statement or supplement to the Final Prospectus to which Underwriters
reasonably object. Transferor and ILC will use best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a Final Prospectus relating to the Notes
is required to be delivered under the Securities Act, 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
supplement such Final Prospectus to comply with the Securities Act or the
rules thereunder, Transferor promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, a supplement which
will correct such statement or omission or an amendment which will effect
such compliance.
(c) As soon as practicable, Transferor will make generally
available to Noteholders and to Underwriters an earnings statement or
statements of Issuer which will satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
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(d) Issuer will furnish to Underwriters and counsel for
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of the prospectus by
either Underwriter or any dealer may be required by the Securities Act, as
many copies of each Final Prospectus relating to the Notes and any
supplement thereto as Underwriters may reasonably request.
(e) ILC and Transferor will take all reasonable actions requested
by Underwriters to arrange for the qualification of the Notes for sale
under the laws of such jurisdictions within the United States or as
necessary to qualify for DTC and as Underwriters may designate, will
maintain such qualifications in effect so long as required for the
completion of the distribution of the Notes; provided, in connection
therewith Transferor shall not be required to qualify as a foreign
corporation doing business in any jurisdiction.
(f) For so long as the Notes are outstanding, Transferor and ILC
shall deliver to Underwriters by first-class mail and as soon as
practicable a copy of all reports and notices delivered to Indenture
Trustee or the Noteholders under the Indenture.
(g) For so long as the Notes are outstanding, Transferor and ILC
will furnish to Underwriters as soon as practicable after filing any other
information concerning Transferor or ILC filed with any government or
regulatory authority which is otherwise publicly available.
(h) To the extent, if any, that any rating provided with respect
to the Notes set forth in Section 6(e) is conditional upon the furnishing
of documents reasonably available to Transferor or ILC, Transferor and ILC
shall furnish such documents.
Section 6. Conditions of Underwriters' Obligation. The obligations
of Underwriters to purchase and pay for the Notes on the Issuance Date
shall be subject to the accuracy in all material respects of the
representations and warranties of Transferor and ILC herein, in each of the
Basic Documents, to the performance by Transferor and ILC in all material
respects of their obligations hereunder and to the following additional
conditions:
(a) Transferor and ILC shall each have delivered a certificate (an
"Officer's Certificate"), dated the Issuance Date, signed by one of its
Authorized Officers to the effect that:
(i) the representations and warranties made by Transferor
or ILC, as applicable, in this Agreement and the Basic Documents
(the "Transaction Documents") are true and correct in all material
respects at and as of the date of such Officer's Certificate as if
made on and as of such date (except to the extent they expressly
relate to an earlier date);
(ii) Transferor or ILC (as the case may be) has complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied under the Transaction Documents
at or prior to the date of such Officer's Certificate;
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(iii) nothing has come to such officer's attention that
would lead such officer to believe that the Final Prospectus
contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and
(iv) such officer is not aware of (A) any request of the
Commission for further amendment of the Registration Statement or
the Final Prospectus for any additional information, (B) 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 or (C) any
notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the threatening of
any proceeding for that purpose.
(b) Underwriters shall have received from counsel to ILC and
Transferor, favorable opinions (subject to customary and usual
qualifications), dated the Issuance Date and reasonably satisfactory in
form and substance to Underwriters and their counsel with respect to, or to
the effect that, among other things: (i) the due formation and
qualification of each of Transferor and ILC and that Transferor and ILC, as
applicable, have the corporate power and authority to perform the
Transaction Documents and the transactions contemplated herein and therein;
(ii) the due authorization, execution, delivery and enforceability of this
Agreement and the other Transaction Documents as applicable, by Transferor
and ILC; (iii) each of this Agreement and the other Transaction Documents
are the legal, valid and binding obligation of Transferor and ILC, as
applicable, enforceable against each of them in accordance with its terms
(subject to customary exceptions relating to bankruptcy and laws affecting
creditors' rights); (iv) the Notes have been duly authorized, executed and
delivered to Transferor and constitute the legal, valid and binding
obligations of Issuer, enforceable in accordance with their terms (subject
to customary exceptions as to bankruptcy and laws affecting creditors'
rights) and are entitled to the benefits of the Indenture; (v) the issuance
of the Notes by Issuer, the sale of the Notes by Transferor, the
performance of this Agreement by Transferor and ILC, the compliance by
Transferor and ILC with the terms of the Transaction Documents, as
applicable, and the consummation of the transactions contemplated herein
and therein will not conflict with the organizational documents of
Transferor or ILC, or to the best of any such counsel's knowledge, any
other contracts to which Transferor or ILC is a party or by which either of
them is bound; (vi) to the best of such counsel's knowledge, there is no
legal or governmental proceeding threatened or pending against Transferor
or ILC which would have a material adverse effect on the issuance of the
Notes; (vii) if a court disregarded the intent of the parties and
characterized the transfers as a pledge of collateral, each of the
Contribution Agreement and the Pooling and Servicing Agreement and
accompanying documentation creates a valid security interest in the Leases
and the Equipment (or interests therein) under New York law; (viii)
assuming no prior financing statements covering the Leases are in effect
based on a review of certain UCC searches and that financing statements
covering the Leases and naming (A) Transferor as secured party/purchaser
and ILC as debtor/seller, (B) Transferor as debtor/seller and Issuer as
secured party/purchaser and (c) Issuer as debtor and Indenture Trustee as
secured party, in each case are being filed in the appropriate filing
offices of the State of Ohio, (1) immediately after giving
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effect to the transfers contemplated by the Contribution Agreement,
Transferor has a first priority perfected interest in all right, title and
interest of ILC in the Leases, (2) immediately after giving effect to the
transfers contemplated by the Pooling and Servicing Agreement, Issuer has a
first priority perfected interest in all right, title and interest of
Transferor in the Leases, and (3) immediately after giving effect to the
grant contemplated by the Indenture, Indenture Trustee has a first priority
perfected security interest in all right, title and interest of Issuer in
the Leases; (ix) the Trust Agreement is not required to be qualified under
Trust Indenture Act and the Trust is not required to be registered under
the 1940 Act, (x) the Indenture has been duly qualified under the Trust
Indenture Act, (xi) neither the Transferor nor Issuer is an "investment
company" or a company "controlled by" an "investment company" within the
meaning of the 1940 Act and (xii) on the Issuance Date the Registration
Statement is effective, and, that to the best of such counsel's knowledge
no stop order suspending the effectiveness of the Registration Statement
has been issued or is threatened, and that although such counsel is not
passing on the factual accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus, nothing came to
such counsel's attention that leads such counsel to believe that either the
Registration Statement or the Prospectus (as of the Effective Date or the
date of the Prospectus) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made not misleading. In rendering such opinion, counsel may rely,
to the extent deemed proper and as stated therein, as to matters of fact on
certificates of responsible officers of Transferor and ILC and public
officials and as to matters of state law of jurisdictions other than the
jurisdictions in which such counsel is admitted to practice, on opinions of
local counsel satisfactory to Underwriters.
(c) Underwriters shall have received from Xxxxx, Brown & Xxxxx,
special counsel for Underwriters, such opinion or opinions, dated the
Issuance Date, with respect to the validity of the Notes, the Registration
Statement, the Final Prospectus, true sale, nonconsolidation and other
related matters as Underwriters may require.
(d) At the Execution Time and at the Issuance Date, Xxxxx & Xxxxx
shall have furnished to Underwriters a letter or letters, dated the date of
this Agreement and the Issuance Date, respectively, in form and substance
satisfactory to Underwriters.
(e) The Class A-1 Notes shall have been rated at least P-1 and
F1+/AAA, the Class A-2 notes shall have been rated at least AAA and AAA,
the Class A-3 Notes shall have been rated at least AAA and AAA, the Class
A-4 Notes shall have been rated at least AAA and AAA, and the Class B Notes
shall have been rated at least AA and A by Xxxxx'x Investors Service, Inc.
and Fitch IBCA, Inc., respectively, which ratings shall not have been
reduced or withdrawn as evidenced by the Officer's Certificate referred to
in Section 6(a).
(f) Counsel to Indenture Trustee shall have delivered a favorable
opinion (subject to customary and usual exceptions), dated the Issuance
Date, and satisfactory in form and substance to Underwriters and counsel
for Underwriters and to Transferor and ILC and their counsel with respect
to, or to the effect that, among other things: (i) the due incorporation
and valid existence
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of Indenture Trustee, (ii) the due authorization, execution and delivery by
Indenture Trustee of the Indenture, (iii) the Indenture is the legal, valid
and bending obligation of Indenture Trustee, enforceable against Indenture
Trustee in accordance with its terms (subject to customary and usual
exceptions), (iv) no approvals or filings with any Governmental Authority
required in connection with the execution, delivery or performance by
Indenture Trustee of the Indenture, (v) the execution, delivery and
performance of the Indenture will not cause any default under Indenture
Trustee's organizational documents or other contracts to which it is a
party or by which it is bound and (vi) the Notes have been duly
authenticated by Indenture Trustee in accordance with the terms of the
Indenture.
(g) Counsel to Trustee shall have delivered a favorable opinion
(subject to customary and usual exceptions), dated the Issuance Date, and
satisfactory in form and substance to Underwriters and counsel for
Underwriters and to Transferor and ILC and their counsel with respect to,
or to the effect that: (i) the due incorporation and valid existence of
Trustee, (ii) the due authorization, execution and delivery by Trustee of
the Trust Agreement, (iii) the Trust Agreement is the legal, valid and
bending obligation of Trustee, enforceable against Trustee in accordance
with its terms (subject to customary and usual exceptions), (iv) no
approvals or filings with any Governmental Authority required in connection
with the execution, delivery or performance by Trustee of the Trust
Agreement, (v) the execution, delivery and performance of the Trust
Agreement will not cause any default under Trustee's organizational
documents or other contracts to which it is a party or by which it is bound
and (vi) the Trust has been duly formed and is validly existing as a
statutory business trust under the laws of the State of Delaware, with full
power and authority to execute, deliver and perform its obligations under
each of the Basic Documents to which the Trust is a party.
(h) Underwriters shall have received the approval of each of their
respective investment committees with respect to the execution, delivery
and performance of this Agreement.
(i) All conditions precedent to the sale of the Certificates
pursuant to the Certificate Purchase Agreement have been fulfilled, and the
Certificates have been sold or will be sold concurrently with the sale of
the Notes.
(j) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
reasonably satisfactory in form and substance to Underwriters, and
Underwriters and their counsel shall have received such other information,
certificates and documents as Underwriters or they may reasonably request.
Section 7. Reimbursement of Expenses. If (x) no closing of the
sale of the Notes occurs by the Issuance Date through no fault of
Transferor or ILC or because the conditions set forth in Sections 6(c),(d),
(e), (f), (g) or (h) have not been met, or (y) Underwriters terminate the
engagement pursuant to Section 10 or because any conditions precedent in
Section 6 (other than Section 6(d)) have not been fulfilled, then
Transferor or ILC's liability to Underwriters shall be limited to the
reimbursement of Underwriters' expenses incurred through the date of
termination
11
for its reasonable out-of-pocket and incidental expenses. In addition, whether
or not the Notes are issued or sold:
(a) Transferor or ILC shall pay the reasonable fees and expenses
associated with the transactions contemplated hereby not paid by
Underwriters in accordance with the provisions of Section 7(b) including,
without limitation, the following fees and expenses:
(i) rating agency fees payable with respect to their ratings
of the Notes;
(ii) fees charged by the firm of independent public
accountants referred to in Section 6(d);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the Commission;
(iv) fees and expenses of counsel to Underwriters;
(v) Indenture Trustee's and Trustee's fees and fees of
counsel to Indenture Trustee and Trustee;
(vi) the costs and expenses of printing the Registration
Statement and the Prospectus;
(vii) the costs of printing or reproducing this Agreement,
the Blue Sky Survey and any other documents in connection with the
offer, sale and delivery of the Notes;
(viii) all expenses in connection with the qualification
of the Notes under state securities laws as provided in Section
4(a)(vi), including the fees and disbursements of counsel in
connection with the Blue Sky Survey;
(ix) the cost of preparing the Notes;
(x) the cost or expenses of any transfer agent or registrar;
and
(xi) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise
specifically provided for in this Section 7; provided, that
neither ILC nor Transferor waives any rights to reimbursement from
Underwriters in the event of either Underwriter's failure to
perform in accordance with this Agreement.
(b) It is understood and agreed that, except as provided in
Section 8 and 9, Underwriters will pay securities transfer taxes on resale
of any of the Notes by them, and any advertising expenses connected with
any offers they may make.
12
Section 8. Indemnification and Contribution. (a) Transferor and
ILC, jointly and severally, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or acts in respect thereof) arise out of or are base upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon
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 will promptly reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating, preparing to defend or defending, or appearing as a
third-party witness in connection with, any such action or claim; provided,
that Transferor and ILC shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Preliminary Prospectus or
the Final Prospectus or any such amendment or supplement, in reliance upon
and in conformity with the Underwriting Information (defined below).
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless Transferor and ILC against any losses, claims,
damages or liabilities to which Transferor and ILC may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or acts in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Final Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made to the Registration Statement or the Final Prospectus or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to Transferor or ILC by or on behalf of such
Underwriter expressly for use therein; and will reimburse Transferor or ILC
for any legal or other expenses reasonably incurred by Transferor or ILC in
connection with the investigating, preparing to defend or defending, or
appearing as a third-party witness in connection with, any such action or
claim. Transferor and ILC acknowledge that the statements set forth in the
last paragraph of the cover page and under the heading "Underwriting" in
the Registration Statement, the Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on
behalf of Underwriters for inclusion in the Registration Statement or the
Final Prospectus (the "Underwriting Information"), and Underwriters confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified
13
party otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, that if the defendants in any such action include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised by counsel that representation of such indemnified
party and the indemnifying party may be inappropriate under applicable
standards of professional conduct due to actual or potential differing
interests between them, the indemnified party or parties shall have the
right to select separate counsel to defend such action on behalf of such
indemnified party or parties. It is understood that the indemnifying party
shall, in connection with any 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 only one separate firm of attorneys together with appropriate
local counsel at any time from all indemnified parties not having actual or
potential differing interest with any other indemnified party. Upon receipt
of notice from the indemnifying party to such indemnified party of its
election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be
liable for any settlement entered into without its consent and will not be
liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
Notwithstanding the immediately preceding sentence and the first sentence
of this paragraph, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) in respect of any losses, claims, damages or
liabilities (or actions or proceeding in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by Transferor and ILC on the one hand and Underwriters on the other from
the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
14
subsection (c), then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of Transferor or ILC on the one hand and Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by Transferor or ILC on the one hand and
Underwriters on the other shall be deemed to be in the same proportion that
the total net proceeds from the offering (before deducting expenses)
received by Transferor and ILC bear to the total underwriting discounts and
commissions received by Underwriters, 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
Transferor or ILC on the one hand or Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Transferor, ILC and
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation or
by any other method of allocation which does not take into account the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing to defend or defending,
or appearing as a third-party witness in connection with, any such action
or claim. Notwithstanding the provision for this subsection (d),
Underwriters shall not be required to contribute any amount in excess of
the total underwriting discount as set forth on the cover page of the
Prospectus. 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.
(e) The obligations of Transferor and ILC under this Section 8
shall be in addition to any liability which Transferor or ILC may otherwise
have and shall extend, upon the same terms and conditions, to each person,
if any, who controls either Underwriter within the meaning of the
Securities Act; and the obligations of Underwriters under this Section 8
shall be in addition to any liability which Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of Transferor and ILC and to each person, if any, who controls
Transferor or ILC within the meaning of the Securities Act.
Section 9. Survival. The respective representations, warranties
and agreements of Transferor, ILC and Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect,
notwithstanding any investigation heretofore or hereafter made by or on
behalf of Transferor, ILC or Underwriters, and such representations,
warranties and agreements made by Transferor and ILC shall survive the
delivery and payment for the Notes. The provisions of Sections 7 and 8
shall survive the termination or cancellation of this Agreement.
15
Section 10. Termination. (a) This Agreement may be terminated by
Underwriters at any time upon the giving of notice at any time prior to the
Issuance Date: (i) if there has been, since December 31, 1997, any material
adverse change in the condition, financial or otherwise, of ILC or
Transferor, or in the earnings, business affairs or business prospects of
ILC or Transferor, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Notes or enforce contracts
for the sale of the Notes, or (iii) if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or (iv)
if a banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, no party will have any
liability to any other party hereto, except as otherwise provided in
Sections 7 or 8.
(b) This Agreement may not be terminated by Transferor or ILC,
except in accordance with law, without the written consent of Underwriters.
(c) Notwithstanding anything herein to the contrary, if Transferor
or ILC does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
material respect, this Agreement and all of Underwriters' obligations
hereunder may be immediately canceled by Underwriters by notice thereof to
Transferor or ILC. Any such cancellation shall be without liability of any
party to any other party except that the provisions of Sections 8 and 9
shall survive any such cancellation.
Section 11. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered to or mailed by certified or registered mail,
postage prepaid, or transmitted by telex or telegraph and confirmed by a
similar mailed writing, if to Underwriters, addressed to Underwriters, c/x
Xxxxxx Brothers Inc., at the address first stated in this Agreement, or to
such other address as Xxxxxx Brothers Inc. may designate in writing to
Transferor or ILC; if to ILC, addressed to ILC at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx, 00000, facsimile no.: (000) 000-0000; if to Transferor,
addressed to Transferor at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, 00000
facsimile no: (000) 000-0000; or such other address as Transferor or ILC
may have designated in writing to you.
Section 12. Successors; Actions by Underwriters. This Agreement
will inure to the benefit of and be binding upon Transferor and ILC and
their successors and assigns and Underwriters and their successors and
assigns. Any action by Underwriters hereunder may be taken by the
Underwriters jointly or by Xxxxxx Brothers Inc. alone on behalf of the
Underwriters, and any such action taken by Xxxxxx Brothers Inc. alone shall
be binding upon the Underwriters.
16
Section 13. Default by Either Underwriter. If either Underwriter
shall fail on the Issuance Date to purchase the Notes which it is obligated
to purchase hereunder (the "Defaulted Notes"), the remaining Underwriter
(the "Non-Defaulting Underwriter") shall have the right, but not the
obligation, within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriter shall not
have completed such arrangements within such one (1) Business Day period,
then this Agreement shall terminate without liability on the part of the
Non-Defaulting Underwriter.
No action taken pursuant to this Section 13 shall relieve the
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, any of the Non-Defaulting Underwriter,
Transferor or ILC shall have the right to postpone the Issuance Date for a
period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements.
Section 14. Entire Agreement. This Agreement and the documents
referred to herein and to be delivered pursuant hereto constitute the
entire agreement between the parties pertaining to the subject matter
hereof and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties.
Section 15. Governing Law. (a) THIS AGREEMENT IS TO BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
(b) TRANSFEROR AND ILC HEREBY SUBMIT TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE
ADDRESS SET FORTH IN SECTION 11 AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. TRANSFEROR AND ILC HEREBY WAIVE ANY OBJECTION BASED
ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF TRANSFEROR OR ILC TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY
ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
17
(c) TRANSFEROR AND ILC HEREBY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION
WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
Section 17. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
If you are in agreement with the foregoing, please sign a
counterpart hereof and return the same to Transferor or ILC, whereupon this
Agreement shall become a binding agreement between Underwriters, Transferor
and ILC.
18
Very truly yours,
INFORMATION LEASING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PROVIDENT LEASE RECEIVABLES CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer
The foregoing Agreement
is hereby accepted and
entered into as of the
date hereof.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
19
SCHEDULE A
Underwriters and Purchase Price
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriters of the Class A-1 Class A-2 Class A-3 Class A-4
Class A Notes Notes Notes Notes Notes
-------------------- --------- --------- --------- ----------
Xxxxxx Brothers Inc. $58,642,400 $15,393,600 $72,748,000 $14,860,800
Prudential Securities
Incorporated $14,660,000 $3,848,400 $18,187,000 $3,715,200
Underwriter's Discount 0.22% 0.30% 0.40% 0.50%
Underwriter of the Class Principal Amount of Class B Notes
B Notes -----------------------------------
--------
Xxxxxx Brothers Inc. $7,687,000
Underwriter's Discount 0.55%
20
