EXHIBIT 1.1
FORM OF
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
[______]% CLASS A-1 LEASE-BACKED NOTES
[______]% CLASS A-2 LEASE-BACKED NOTES
[______]% CLASS B LEASE-BACKED NOTES
UNDERWRITING AGREEMENT
----------------------
September __, 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 you as follows:
Section 1. Issuance and Sale of Notes. Transferor proposes to cause
Issuer to issue and sell $[___________] (the "Class A-1 Initial Principal
Amount") of [_____]% Class A-1 Lease- Backed Notes (the "Class A-1 Notes");
$[__________] (the "Class A-2 Initial Principal Amount") of [____]% Class A-2
Lease-Backed Notes (the "Class A-2 Notes"); $[__________] (the "Class B
Initial Principal Amount"; together with the Class A-1 Initial Principal
Amount and the Class A-2 Initial Principal Amount, the "Initial Principal
Amount") of [____]% Class B Lease-Backed Notes (the "Class B Notes"; together
with the Class A-1 Notes and the Class A-2 Notes, the "Notes") and
$[__________] of [_____]% 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 [Name of Indenture Trustee] (the "Indenture Trustee"). The Notes
are more fully described in the Final Prospectus (as defined below), a copy of
which Transferor is furnishing to you. 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 you as underwriter (the
"Underwriter").
Simultaneously with the issuance and sale of the Notes as
contemplated in this Agreement, Transferor will sell the Certificates pursuant
to a placement agreement dated as of the date hereof (the "Certificate
Placement Agreement") among Transferor, ILC and you.
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- ), 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).
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.
---------------------------
(a) Subject to the terms and conditions and in reliance upon the
covenants, representations and warranties set forth herein, Underwriter agrees
to purchase from Transferor the Initial Principal Amount of the Notes pursuant
to the terms of this Agreement on the
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Issuance Date at the purchase price (the "Purchase Price") set forth on
Schedule A attached hereto.
(b) The rights of Transferor, ILC and Underwriter shall be as set
forth in Section 13.
(c) It is understood that Underwriter proposes 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 by Underwriter shall be made at the offices of Xxxxx, Brown & Xxxxx, New
York, New York, at 10:00 a.m., New York time, on September ___, 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 New York, New York, not later than 1:00 p.m., New York City
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, Underwriter 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-[_____]) 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 which has previously been
furnished to you. 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 you shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other
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changes (beyond that contained in the latest Preliminary Prospectus
which has previously been furnished to you) as Transferor has advised
you, 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
Underwriter 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 Issuer, 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.
(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
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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 Underwriter.
(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 Underwriter
may rely thereon as if such representations and warranties were fully
set forth herein.
(b) ILC hereby represents and warrants to and agrees with Underwriter
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 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
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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 Underwriter.
(iii) ILC hereby makes and repeats the representations and
warranties set forth in Articles III and V of the Purchase Agreement.
Such representations and warranties are incorporated by reference in
this Section 4(b), and Underwriter may rely thereon as if such
representations and warranties were fully set forth herein.
(iv) ILC represents and warrants it has delivered to
Underwriter 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 you,
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 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 you as follows:
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(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 Underwriter (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 Underwriter reasonably objects. 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 Underwriter 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.
(d) Issuer will furnish to Underwriter and counsel for Underwriter,
without charge, signed copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of the prospectus by 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 Underwriter may
reasonably request.
(e) ILC and Transferor will take all reasonable actions requested by
Underwriter 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 Underwriter 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.
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(f) For so long as the Notes are outstanding, Transferor and ILC
shall deliver to Underwriter 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 Underwriter 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
Underwriter 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 its [President
and its Chief Financial Officer], 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;
(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
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qualification of the Notes for sale in any jurisdiction or the
threatening of any proceeding for that purpose.
(b) Underwriter 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 Underwriter 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 Purchase 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 effect to the transfers
contemplated by the Purchase 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
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(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 Underwriter.
(c) Underwriter shall have received from Xxxxx, Xxxxx & Xxxxx,
special counsel for Underwriter, 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
Underwriter may require.
(d) At the Execution Time and at the Issuance Date, Xxxxx & Xxxxx
shall have furnished to Underwriter a letter or letters, dated the date of
this Agreement and the Issuance Date, respectively, in form and substance
satisfactory to Underwriter.
(e) The Class A-1 Notes shall have been rated at least [__________]
the Class A-2 notes shall have been rated at least [__________] and the Class
B Notes shall have been rated at least [__________] by at least two nationally
recognized rating agencies, and that the Certificates shall have been rated at
least [__________] by at least two nationally recognized rating agencies,
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 Underwriter and counsel for
Underwriter 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 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.
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(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 Underwriter and counsel for Underwriter
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) Underwriter 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 Placement 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 you, and you and your special counsel
shall have received such other information, certificates and documents as you
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) Underwriter terminates 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
Underwriter shall be limited to the reimbursement of Underwriter's expenses
incurred through the date of termination 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 Underwriter
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;
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(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 Underwriter;
(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
Underwriter if Underwriter fails to perform in accordance with this
Agreement.
(b) It is understood and agreed that, except as provided in Section 8
and 9, Underwriter will pay securities transfer taxes on resale of any of the
Notes by it, and any advertising expenses connected with any offers it may
make.
Section 8. Indemnification and Contribution. (a) Transferor and ILC,
jointly and severally, will indemnify and hold harmless Underwriter against
any losses, claims, damages or liabilities, joint or several, to which
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 Underwriter for
any legal or other expenses reasonably incurred by Underwriter in connection
12
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) Underwriter agrees 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 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 Underwriter for inclusion
in the Registration Statement or the Final Prospectus (the "Underwriting
Information"), and each of you 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
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.
13
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 Underwriter 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 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 Underwriter
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
Underwriter 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 Underwriter, in each case as set forth in the table on the cover
page of the Final Prospectus. The relative fault shall be
14
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 Underwriter 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 Underwriter 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),
Underwriter 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 Underwriter within the meaning of the Securities Act; and the
obligations of Underwriter under this Section 8 shall be in addition to any
liability which Underwriter 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 Underwriter 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 Underwriter, 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.
Section 10. Termination. (a) This Agreement may be terminated by you
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
15
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 Underwriter.
(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 Underwriter's obligations hereunder may be
immediately canceled by Underwriter 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 you, addressed to you, at the addresses first stated in
this Agreement, or to such other address as you may designate in writing to
Transferor or ILC; if to ILC, addressed to ILC at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx, 00000, facsimile no.: (513) ________; if to Transferor,
addressed to Transferor at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, 00000
facsimile no: (513) _________; or such other address as Transferor or ILC may
have designated in writing to you.
Section 12. Successors. This Agreement will inure to the benefit of
and be binding upon Transferor and ILC and their successors and assigns and
Underwriter and its successors and assigns.
Section 13. 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 14. 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
16
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.
(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 Underwriter, Transferor and ILC.
17
Very truly yours,
INFORMATION LEASING CORPORATION
By:
--------------------------------------
Name:
Title:
PROVIDENT LEASE RECEIVABLES CORPORATION
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
XXXXXX BROTHERS INC.
By:
-------------------------
Name:
Title:
18
SCHEDULE A
Purchase Price
Principal Principal Principal
--------- --------- ---------
Amount of Amount of Amount of
--------- --------- ---------
Underwriter Class A-1 Notes Class A-2 Notes Class B Notes
----------- --------------- --------------- -------------
Xxxxxx Brothers Inc. $ $ $
19
