Exhibit 1.1
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$__________ _____% ASSET-BACKED NOTES, SERIES ______, CLASS A
$___________ ____% ASSET-BACKED NOTES, SERIES ______, CLASS B
$__________ ____% ASSET-BACKED NOTES, SERIES ______, CLASS C
$_________ ____% ASSET-BACKED NOTES, SERIES ______, CLASS D
UNDERWRITING AGREEMENT
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PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
DVI Receivables Corp. VIII (the "TRANSFEROR"), as sole owner of all of
the outstanding beneficial interest in DVI ______________ (the "ISSUER"), the
Issuer and DVI Financial Services Inc. (the "Contributor" or "Servicer"), hereby
agree with the Underwriters (defined below) as follows:
Section 1. ISSUANCE AND SALE OF NOTES. The Issuer proposes to issue and
sell $__________ (the "CLASS A INITIAL PRINCIPAL AMOUNT") of _____% Class A
Asset-Backed Notes (the "CLASS A NOTES");$_________ (the "CLASS B INITIAL
PRINCIPAL AMOUNT") of ____% Class B Asset- Backed Notes (the "CLASS B NOTES");
$_________ (the "CLASS C INITIAL PRINCIPAL AMOUNT") of ____% Class C
Asset-Backed Notes (the "CLASS C NOTES"); and $_________ (the "CLASS D INITIAL
PRINCIPAL AMOUNT") of _____% Class D Asset-Backed Notes (the "CLASS D NOTES";
together with the Class A Notes, the Class B Notes and the Class C Notes, the
"NOTES"). The Notes will be issued pursuant to an Indenture, dated as of
________________ (the "INDENTURE"), between the Issuer and ___________, a
national banking association (the "TRUSTEE"). The Notes are more fully described
in the Prospectus Supplement (as defined below), a copy of which the Transferor
is furnishing to the Underwriters. The Notes will evidence secured obligations
of the Issuer. The assets of the Issuer will include a pool of leases, loans and
other contracts and security interests in the related underlying Equipment.
The Notes will be sold by the Issuer to the Underwriters listed on
SCHEDULE A hereto (the "UNDERWRITERS") in accordance with the terms of this
agreement.
The terms which follow, when used in this Agreement, shall have the
meanings indicated:
"INITIAL PRINCIPAL AMOUNT" means the sum of the Class A Initial
Principal Amount, the Class B Initial Principal Amount, the Class C Initial
Principal Amount and the Class D Initial Principal Amount.
"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 I 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, each of the
Underwriters agrees to purchase from the Issuer the Initial Principal Amount of
the Notes pursuant to the terms of this Agreement on the Closing 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 and any Non-Defaulting
Underwriter shall be as set forth in Section 13 hereof.
(c) It is understood that the Underwriters propose to offer the Notes
for sale to the public in the manner set forth in the Prospectus Supplement (as
defined below).
Section 3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes
purchased by the Underwriters shall be made at the offices of Xxxxxxx Xxxxxxxx &
Xxxx, at Two World Trade Center, 39th Floor, New York, New York, on the Closing
Date, or such other place and time as the parties hereto agree. Delivery of the
Notes shall be made against payment of the purchase price in immediately
available funds drawn to the order of the Issuer or as it shall so direct. The
Notes to be so delivered will be initially represented by one or more Notes
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The interests of beneficial owners of the Notes will be represented by
book entries on the records of the Note Registrar and participating members
thereof. Definitive Notes will be available only under limited circumstances
described in the Indenture.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR AND
THE ISSUER.
(a) Each of the Transferor or the Issuer, as the case may be, hereby
severally represents and warrants to, and agrees with, the Underwriters as
follows:
(i) The Transferor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. ________)
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Asset Backed Certificates and
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Asset Backed Notes (issuable in series), including the Notes, which
registration statement has become effective, and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Transferor proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the
"1933 Act Regulations") a supplement dated ________________ (the
"Prospectus Supplement"), to the prospectus dated _________________
(the "Basic Prospectus"), relating to the Notes and the method of
distribution thereof. Such registration statement (No. ________)
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; and the Basic Prospectus and the Prospectus
Supplement and any information incorporated therein by reference,
together with any amendment thereof or supplement thereto authorized by
the Transferor on or prior to the Closing Date for use in connection
with the offering of the Notes, are hereinafter called the
"Prospectus."
(ii) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective Date"),
and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the Act and the 1933 Act Regulations; and the Registration Statement,
as of the Effective Date, did not contain any untrue statement of a
material fact and did not omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date will not, contain an
untrue statement of a material fact and did not and will not 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, HOWEVER, that neither the Transferor, the
Issuer, the Contributor nor the Servicer makes any representations or
warranties as to the Underwriting Information. The conditions to the
use by the Transferor of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement, as applicable,
and the Prospectus, except that the Transferor makes no such
representation regarding any Computational Materials (as defined
herein) incorporated by reference therein. There are no contracts or
documents (not including Computational Materials) of the Transferor
which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the 1933 Act Regulations which have
not been so filed.
(iii) This Agreement has been duly authorized, executed and
delivered by the Transferor and the Issuer and constitutes a legal,
valid and binding agreement of the Transferor and the Issuer,
enforceable in accordance with its terms, except that the provisions
hereof relating to indemnification of the Underwriters may be subject
to limitations of public policy.
(iv) Each of the Transaction Documents to which the Transferor
or the Issuer is a party have been duly authorized by the Transferor or
the Issuer, as the case may be and each of the Transferor and the
Issuer has the power, authority and legal right to execute, deliver and
perform its respective obligations under each of the Transaction
Documents to which it is a party and to consummate all transactions
contemplated thereunder, and, when executed
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and delivered by the Transferor or the Issuer, each of the Transaction
Documents to which it is a party will constitute the legal, valid and
binding obligation of the Transferor or the Issuer, as the case may be,
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 the Issuer to Trustee to authenticate the
Notes has been duly authorized by the Issuer and, the Notes when duly
and validly authenticated by Trustee and delivered in accordance with
the Indenture and this Agreement, will be the legal, valid and binding
obligations of the 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 by the
Transferor or the Issuer, as the case may be, of this Agreement and the
Transaction Documents to which the Transferor or the Issuer is a party
will (A) not conflict with or result in a breach of, and will not
constitute a default under any of the provisions of, its respective
certificate of incorporation or trust agreement or any law,
governmental rule or regulation, or any judgment, decree or order
binding on the Transferor or the Issuer or either of their respective
properties, or any of the provisions of any indenture, mortgage, deed
of trust, contract or other agreement or instrument to which the
Transferor or the Issuer, as the case may be, is a party or by which it
is bound and (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 the Transferor or the Issuer, as the case may be, of
the transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Act and under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the
Underwriters.
(vii) Neither the Transferor nor the Issuer is, or will be,
subject to registration as an "investment company" under the Investment
Company Act of 1940 (the "1940 Act").
(viii) the Issuer is a Delaware __________ duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with its chief executive office located at
_____________________, and has the power and authority to own, convey
and otherwise deal with its assets and to engage in the activities in
which it is presently engaged and is duly qualified and in good
standing under the laws of each jurisdiction where its ownership of
property or the conduct of its activities requires such qualification,
if the failure to so qualify would have a material adverse effect on
the financial condition of the Issuer or on the enforceability of the
Contracts or the Notes or the ability of the Issuer to perform its
obligations under the Transaction Documents to which it is a party; one
hundred percent of
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the beneficial ownership interests of the Issuer at all times will be
owned by the Transferor; and the Issuer has no subsidiaries.
(ix) Each of the Transferor and the Issuer hereby makes and
repeats each of the respective representations and warranties expressly
made by it in the Transaction Documents. Such representations and
warranties are incorporated by reference in this SECTION 4(A) and the
Underwriters may rely thereon as if such representations and warranties
were fully set forth herein.
(b) The Contributor hereby represents and warrants to and agrees with
the Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered, each of the Transaction Documents to which the Contributor
is a party has been duly authorized, and this Agreement constitutes,
and when executed and delivered, each of such Transaction Documents
will constitute, the legal, valid and binding obligations of the
Contributor 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 the Underwriters may
be subject to limitations of public policy.
(ii) The performance by the Contributor of each of this
Agreement and the Transaction Documents to which the Contributor is a
party, and the consummation by the Contributor 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 the Contributor or its properties, or any of the provisions
of any indenture, mortgage, deed of trust, contract or other agreement
or instrument to which the Contributor is a party or by which it is
bound and (B) not result in the creation or imposition of any lien,
pledge or incumbrance upon any of the Contributor's, Transferor's or
Issuer's property 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 the Contributor of
the transactions contemplated by this Agreement or the Transaction
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 the Underwriters.
(iii) The Contributor hereby makes and repeats the
representations and warranties set forth in ARTICLES II and III of the
Contribution Agreement. Such representations and warranties are
incorporated by reference in this SECTION 4(B), and the Underwriters
may rely thereon as if such representations and warranties were fully
set forth herein.
(iv) The Contributor represents and warrants it has delivered
to the Underwriters complete and correct copies of its balance sheet
and statements of income and retained
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earnings for the fiscal year ended _____________. Except as set forth
in or contemplated in the Registration Statement and the Prospectus,
there has been no material adverse change in the condition (financial
or otherwise) of the Contributor or any other consolidated subsidiary
of the Contributor since __________________.
(v) Any taxes, fees and other governmental charges arising
from the execution and delivery of this Agreement and the Transaction
Documents and in connection with the execution, delivery and issuance
of the Notes and with the transfer of the Contracts and any interest in
the Equipment, have been paid or will be paid by the Contributor.
(c) Each of the Transferor and the Contributor severally represents and
warrants to the Underwriters 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 Transaction
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 Transaction 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 Transaction
Documents (as applicable), (y) the validity or enforceability of this
Agreement, any Transaction Documents or the Notes or (z) the federal
income tax attributes of such Notes described in the Prospectus.
(ii) _____________________ is an independent public accountant
with respect to the Contributor and the Transferor within the meaning
of the Act and the rules and regulations promulgated thereunder.
Section 5. COVENANTS OF THE TRANSFEROR AND THE CONTRIBUTOR. The
Transferor and the Contributor, jointly and severally, hereby covenant and agree
with the 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 Prospectus is otherwise required under Rule 424(b), the
Transferor will file the Prospectus, properly completed, pursuant to Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Transferor will promptly advise the
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 Prospectus or for any additional information or of the receipt
of any comments from the Commission with respect to the Registration Statement
or the Prospectus, (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 the
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. Before amending or supplementing
the Registration Statement or the Prospectus with respect to the Notes,
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the Transferor will furnish each of the Underwriters with a copy of each such
proposed amendment or supplement within a reasonable time in advance of filing
and the Transferor will not file any amendment of the Registration Statement or
supplement to the Prospectus to which the Underwriters reasonably object. The
Transferor and the Contributor 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 the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or, if it shall be necessary to supplement such Prospectus
to comply with the Act or the rules thereunder, the 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, the Transferor will make generally
available to Noteholders and to the Underwriters an earnings statement or
statements of the Issuer which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Issuer will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of the prospectus by
either of the Underwriters or any dealer may be required by the Act, as many
copies of each Prospectus relating to the Notes and any supplement thereto as
the Underwriters may reasonably request.
(e) The Contributor and the Transferor will take all reasonable actions
requested by the Underwriters to arrange for the qualification of the Notes for
sale under the laws of such jurisdictions within the United States and as the
Underwriters may reasonably designate, will maintain such qualifications in
effect so long as required for the completion of the distribution of the Notes;
PROVIDED, in connection therewith the Contributor and the Transferor shall not
be required to qualify as a foreign corporation doing business in any
jurisdiction or to file a general consent to service of process in any
jurisdiction.
(f) For so long as the Notes are outstanding, the Transferor shall
deliver to the Underwriters by first-class mail and as soon as practicable a
copy of all reports and notices delivered by the Issuer to the Trustee or the
Noteholders under the Indenture.
(g) For so long as the Notes are outstanding, the Transferor and the
Contributor will furnish to the Underwriters as soon as practicable after filing
any other information concerning the Transferor or the Contributor 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 the Transferor or the Contributor, the Transferor or the
Contributor, as necessary, shall furnish such documents.
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(i) The Transferor will file with the Commission within fifteen days of
the issuance of the Notes a current report on Form 8-K setting forth specific
information concerning the Notes and the Contracts to the extent that such
information is not set forth in the Prospectus. The Transferor will also file
with the Commission a current report on Form 8-K setting forth all Computational
Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined
herein) provided to the Transferor by any Underwriter within the applicable time
periods allotted for such filing pursuant to the No-Action Letters (as such term
is defined herein).
(j) In connection with any Computational Materials, ABS Term Sheets or
Collateral Term Sheets provided by an Underwriter pursuant to Section 5A, the
Transferor must receive a letter from Deloitte & Touche LLP, certified public
accountants, satisfactory in form and substance to the Transferor, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Transferor, as a result of which they have determined
that the information included in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets (if any), provided by the Underwriter(s) to the
Transferor for filing on Form 8-K pursuant to Section 5A and subsection (i), is
accurate except as to such matters that are not deemed by the Transferor to be
material. The foregoing letter shall be obtained at the expense of the
Transferor.
(k) In the event that an Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to
Section 5A(d), the Transferor shall file any corrected Computational Materials,
ABS Term Sheets or Collateral Term Sheets no later than two days following
receipt thereof.
Section 5A. INVESTOR INFORMATION. Each Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets in connection with its offering of the Notes,
subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by any Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by any
Underwriter.
(c) Each Underwriter shall provide to the Transferor any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided to
investors by it no later than the date preceding the date such Computational
Materials, ABS Term Sheets or Collateral Term Sheets are required to be filed
pursuant to the applicable No-Action Letters. Each Underwriter may provide
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copies of the foregoing in a consolidated or aggregated form including all
information required to be filed.
(d) In the event that the Transferor or any Underwriter discovers an
error in the Computational Materials, ABS Term Sheets or Collateral Term Sheets,
the Underwriter that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets, as
applicable, and deliver them to the Transferor for filing pursuant to Section
5(k).
Section 6. CONDITIONS OF THE UNDERWRITERS' OBLIGATION. The obligation
of the Underwriters to purchase and pay for the Notes as provided herein shall
be subject to the accuracy as of the date hereof and the Closing Date (as if
made at the Closing Date) of the representations and warranties of the
Transferor, the Contributor and the Issuer contained herein (including those
representations and warranties set forth in the Transaction Documents and
incorporated herein), to the accuracy of the statements of the Transferor, the
Contributor and the Issuer made in any certificate or other document delivered
pursuant to the provisions hereof, to the performance by the Transferor, the
Contributor and the Issuer of its respective obligations hereunder, and to the
following additional conditions:
(a) (i) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been initiated or threatened by the Commission and the Prospectus Supplement
shall have been filed or transmitted for filing by means reasonably calculated
to result in filing with the Commission not later than the time required by Rule
424(b) under the Act and (ii) there shall not have come to any Underwriter's
attention any facts that would cause such Underwriter to believe that the
Prospectus at the time it was required to be delivered to a purchaser of the
Notes, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. No challenge by the
Commission shall have been made to the accuracy or adequacy of the Registration
Statement and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with and the Transferor shall not have filed with the Commission any
amendment or supplement to the Registration Statement or the Prospectus without
prior written notice to the Underwriters.
(b) The Underwriters shall have received the Transaction Documents,
including the Notes, in form and substance reasonably satisfactory to the
Underwriters, duly executed by all signatories required pursuant to the
respective terms thereof.
(c) (i) The Underwriters shall have received the favorable opinions of
(i) Xxxxxxx Xxxxxxxx & Xxxx with respect to items (B) (relating solely to
enforceability), (F), and (H) through (L) below, and (ii) of Xxxxxx Xxxxxx,
Esq., general counsel to the Issuer, the Transferor and the Contributor, with
respect to items (A) through (E) and (G) below, each dated the Closing Date:
(A) Each of the Transferor and the Issuer has been
duly organized and is validly existing as a corporation or, in
the case of the Issuer, a ______________, in good standing
under the laws of the State of Delaware, and is qualified to
do business in each jurisdiction in which the character of the
properties owned or leased by it or
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the nature of the business conducted by it makes such
qualification necessary to conduct its business as presently
conducted (except where the failure to be so qualified or in
good standing could not individually or in the aggregate have
a material adverse effect upon (x) the business, assets,
property, condition (financial or otherwise) or prospects of
the Issuer or the Transferor, respectively, taken as a whole
or (y) the validity and enforceability of the Transaction
Documents to which any of them is a party (the "Documents")).
Each of the Transferor and the Issuer has the power and
authority to make, deliver and perform the Documents to which
it is a party.
(B) The Documents have been duly authorized, executed
and delivered by each of the Transferor and the Issuer, as to
those agreements as to which each respectively is a party, and
each constitutes the valid and binding obligation of the
Transferor or the Issuer, as applicable, enforceable against
the Transferor or the Issuer, as applicable, in accordance
with their respective terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(C) Neither the consummation of transactions
contemplated by, nor the execution, delivery and performance
of the terms of the Documents, (x) will result in any
violation of the certificate of incorporation or bylaws of the
Transferor or the organizational documents of the Issuer; or
(y) to the best of such counsel's knowledge, any order,
judgment or decree of any court or arbitrator to which the
Transferor or the Issuer is a party or is subject; and (z) to
the best of such counsel's knowledge, will not conflict with,
result in a breach, violation or acceleration of any of the
terms of, constitute a default under or result in the creation
or imposition of any lien, pledge or encumbrance upon the
Transferor's or the Issuer's property pursuant to the terms of
any indenture, loan agreement, any other agreement, instrument
or other undertaking to which either the Transferor or the
Issuer or any of their subsidiaries is a party or by which any
of them is bound or to which any of their property or assets
of any of them is subject, or upon the Notes, except as
otherwise contemplated by the Indenture.
(D) Except for the filing of Financing Statements and
the registration under the Act of the Notes, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
by the Underwriters, no consent, approval, authorization,
order or withholding of objection on the part of, or
registration or qualification with, any court, governmental
agency or body or tribunal is required for the execution and
delivery by it of, or the consummation by it of the Documents,
except such consents, approvals, authorizations, registrations
or qualifications which have been obtained and such as have
been made and are in full force and effect.
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(E) Other than as may be set forth or contemplated in
the Prospectus Supplement, there are no actions, proceedings
or investigations pending or, to the best of such counsel's
knowledge, threatened before any court, administrative agency
or other tribunal to which the Transferor or the Issuer is a
party or threatened to be made a party (i) asserting the
invalidity of the Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the
Documents, or (iii) which could reasonably be expected to have
a material adverse effect upon (x) the business, assets,
property, condition (financial or otherwise) or prospects of
the Transferor or the Issuer or any of their subsidiaries,
taken as a whole or (y) the validity and enforceability of the
Indenture or the rights of the Trustee therein.
(F) Except as to any statistical, accounting or other
financial data contained in the Registration Statement or, in
the case of Computational Materials, incorporated therein by
reference, and other than with respect to the Underwriting
Information, as to which no opinion or belief need be
expressed, to such counsel's knowledge, the Registration
Statement does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein
not misleading.
(G) The Notes, assuming due execution by the Issuer
and authentication by the Trustee, and delivery and payment
therefor pursuant to this Agreement, are validly issued and
outstanding and are entitled to the benefits of the Indenture.
(H) To the knowledge of such counsel, the Commission
has not issued any stop order suspending the effectiveness of
the Registration Statement or any order directed to any
prospectus relating to the Notes (including the Prospectus),
and has not initiated or threatened any proceeding for that
purpose.
(I) The Registration Statement and the Prospectus
Supplement, dated ________________ (the "PROSPECTUS
SUPPLEMENT") (other than the financial and statistical data
included therein or, in the case of Computational Materials,
incorporated therein by reference, as to which such counsel
need express no opinion), as of the date on which the
Registration Statement was declared effective and as of the
date hereof, comply as to form in all material respects with
the requirements of the Act and the rules and regulations
thereunder, and such counsel does not know of any amendment to
the Registration Statement required to be filed, or of any
contracts, indentures or other documents (not including
Computational Materials) of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
Supplement which has not been filed or described as required.
(J) The statements in the Prospectus Supplement set
forth under "DESCRIPTION OF THE NOTES AND THE PRINCIPAL
TRANSACTION DOCUMENTS", to the extent such statements purport
to summarize certain provisions of the Notes, the Contribution
and Servicing Agreement, the Subsequent
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Contract Transfer Agreement or the Indenture, are true and
correct in all material respects.
(K) The statements in the Prospectus Supplement under
the headings "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and
"CONSIDERATIONS FOR BENEFIT PLAN INVESTORS," to the extent
that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or
reviewed by such counsel, and, while they do not purport to
discuss all ramifications of the purchase, ownership and
disposition of the Notes, fairly summarize those legal matters
which are discussed.
(L) Each of the Transferor and the Issuer is not, and
will not as a result of the offer and sale of the Notes as
contemplated in the Prospectus and in this Agreement become,
required to be registered as an "investment company" under the
1940 Act.
(ii) The Underwriters shall have received the favorable
opinions of (i) Xxxxxxx Xxxxxxxx & Xxxx, with respect to item (B) below
relating to enforceability, and (ii) of Xxxxxx Xxxxxx, Esq., general
counsel to the Contributor, with respect to items (A) through (E)
below:
(A) The Contributor has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, and is qualified to do business
in each jurisdiction in which the character of the properties
owned or leased by it or the nature of the business conducted
by it makes such qualification necessary to conduct its
business as presently conducted (except where the failure to
be so qualified or in good standing could not individually or
in the aggregate have a material adverse effect upon (x) the
business, assets, property, condition (financial or otherwise)
or prospects of the Contributor taken as a whole or (y) the
validity and enforceability of the Transaction Documents to
which the Contributor is a party (the "Contributor
Documents"). The Contributor has the power and authority to
make, deliver and perform each of the Contributor Documents.
(B) The Contributor Documents have been duly
authorized, executed and delivered by the Contributor, and
each constitutes the valid and binding obligation of the
Contributor, enforceable against the Contributor in accordance
with their respective terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(C) Neither the consummation of transactions
contemplated by, nor the execution, delivery and performance
of the terms of the Contributor Documents, (x) will result in
any violation of the certificate of incorporation or bylaws of
the Contributor; or (y) to the best of such counsel's
knowledge, any order, judgment or
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decree of any court or arbitrator to which the Contributor is
a party or is subject; and (z) to the best of such counsel's
knowledge, will not conflict with, result in a breach,
violation or acceleration of any of the terms of, constitute a
default under or result in the creation or imposition of any
lien, pledge or encumbrance upon the Contributor's property
pursuant to the terms of any indenture, loan agreement, any
other agreement, instrument or other undertaking to which the
Contributor or any of its subsidiaries is a party or by which
any of them is bound or to which any of their property or
assets of any of them is subject, or upon the Notes, except as
otherwise contemplated by the Contributor Documents.
(D) Except for the filing of Financing Statements and
the registration under the Act of the Notes, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
by the Underwriters, no consent, approval, authorization,
order or withholding of objection on the part of, or
registration or qualification with, any court, governmental
agency or body or tribunal is required for the execution and
delivery by it of, or the consummation by it of the
Contributor Documents, except such consents, approvals,
authorizations, registrations or qualifications which have
been obtained and such as have been made and are in full force
and effect.
(E) Other than as may be set forth or contemplated in
the Prospectus Supplement, there are no actions, proceedings
or investigations pending or, to the best of such counsel's
knowledge, threatened before any court, administrative agency
or other tribunal to which the Contributor is a party or
threatened to be made a party (i) asserting the invalidity of
the Contributor Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the
Contributor Documents, or (iii) which could reasonably be
expected to have a material adverse effect upon (x) the
business, assets, property, condition (financial or otherwise)
or prospects of the Contributor or any of its subsidiaries,
taken as a whole or (y) the validity and enforceability of the
Contributor Documents or the rights of the Trustee therein.
(iii) The Underwriters shall have received the favorable
opinion(s), dated the Closing Date, of Xxxxxxx Xxxxxxxx & Xxxx, with
respect to such matters as the Underwriters shall reasonably require.
In rendering their opinions, the counsel described in this Paragraph
(c) may rely, as to matters of fact, on certificates of responsible officers of
the Transferor, the Contributor, the Issuer, the Trustee and public officials.
Such opinions may also assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto;
provided, however, that counsel to the Transferor, the Contributor and the
Issuer may not make such assumptions with respect to such Transferor,
Contributor and Issuer.
(d) The Underwriters shall have received a letter from a nationally
recognized independent accounting firm, dated on or before the Closing Date, in
form and substance satisfactory
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to the Underwriters and counsel for the Underwriters, to the effect that they
have performed certain specified procedures requested by the Underwriters with
respect to the information set forth in the Prospectus and certain matters
relating to the Transferor.
(e) The Notes shall have been rated _________ and ________ as
applicable, by the Rating Agencies; and such ratings shall not have been
rescinded. The Underwriters and counsel for the Underwriters shall have received
copies of any opinions of counsel supplied to the rating organizations relating
to any matters with respect to the Class A Notes, the Class B Notes, the Class C
Notes and the Class D Notes. Any such opinions shall be dated the Closing Date
and addressed to the Underwriters or accompanied by reliance letters to the
Underwriters or shall state that the Underwriters may rely upon them.
(f) The Underwriters shall have received from the Transferor a
certificate, signed by the president, a senior vice president or a vice
president of the Transferor, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus, the Indenture and this Agreement and that, to his or her
knowledge:
(i) the representations and warranties of the Transferor and
the Issuer, as applicable, in this Agreement and in the Contribution
and Servicing Agreement, as of the Closing Date, and in the Indenture,
the Subsequent Contract Transfer Agreement and in all related
agreements, as of the date specified in such agreements, are true and
correct, and the Transferor and the Issuer, as applicable, has complied
with all the agreements, and satisfied all the conditions on its part
to be performed or satisfied, thereunder at or prior to the Closing
Date;
(ii) there are no actions, suits or proceedings pending, or,
to such officer's knowledge, threatened, against or affecting the
Transferor or the Issuer which, if adversely determined, individually
or in the aggregate, would be reasonably likely to materially and
adversely affect the ability of the Transferor or the Issuer to perform
the Transferor's or the Issuer's, respectively, obligations under the
Transaction Documents or the Notes; and no merger, liquidation,
dissolution or bankruptcy of the Transferor or the Issuer is pending or
contemplated;
(iii) the information contained in the Registration Statement
and the Prospectus relating to the Transferor, the Issuer, the
Contracts or the servicing procedures of its affiliates is true and
accurate in all material respects, and nothing has come to his or her
attention that would lead such officer to believe that the Registration
Statement or the Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein not misleading;
(iv) the information set forth in the List of Contracts
required to be furnished pursuant to the Indenture is true and correct
in all material respects;
(v) there has been no amendment or other document filed
affecting the certificate of incorporation or bylaws of the Transferor
since March 3, 1995, and no such amendment has been authorized. There
has been no amendment or other document filed affecting the
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Subsequent Contract Transfer Agreement or the ___________ of the Issuer
since __________ and no such amendment has been authorized. No event
has occurred since __________ which has affected the good standing of
the Transferor or the Issuer under the laws of the State of Delaware;
(vi) there has not occurred any material adverse change, or,
to such officer's knowledge, any development involving a prospective
material adverse change, in the condition, financial or otherwise,
results of operations, business or operations of the Issuer, the
Transferor and its parent, taken as a whole, since _____________;
(vii) on or prior to the Closing Date, there has been no
downgrading nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible change in rating,
the direction of which has not been indicted in, the rating, if any,
accorded the Notes by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the Act; and
(viii) each person who, as an officer or representative of the
Transferor or the Issuer, signed or signs the Registration Statement,
the Transaction Documents or any other document delivered pursuant
hereto, on the date of such execution or on the Closing Date, as the
case may be, in connection with the transactions described in the
Transaction Documents, was, at the respective times of such signing and
delivery, and is now, duly elected or appointed, qualified and acting
as such officer or representative, and the signatures of such persons
appearing on such documents are their genuine signatures.
The Transferor shall attach to such certificate a true and correct copy
of its certificate of incorporation and bylaws, which are in full force and
effect on the date of such certificate, and a certified true copy of the
resolutions of its Board of Directors with respect to the transactions
contemplated herein.
(g) The Underwriters shall have received a certificate, signed by the
president, a senior vice president or a vice president of each of the
Contributor and the Servicer, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus, the Indenture, and the Contribution and Servicing Agreement and
that, to his or her knowledge:
(i) the representations and warranties of each of the
Contributor and the Servicer in the Contributor Documents, as of the
Closing Date, and in all related agreements, as of the date specified
in such agreements, are true and correct, and each of the Contributor
and the Servicer has complied with all the respective agreements, and
satisfied all the conditions on its part to be performed or satisfied
thereunder at or prior to the Closing Date;
(ii) there are no actions, suits or proceedings pending, or,
to such officer's knowledge, threatened, against or affecting the
Contributor or the Servicer which, if adversely determined,
individually or in the aggregate, would be reasonably likely to
materially and adversely affect the Contributor's or the Servicer's
respective obligations
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under the Contributor Documents; and no merger, liquidation,
dissolution or bankruptcy of the Contributor or the Servicer is
pending or contemplated;
(iii) the information contained in the Registration Statement
and the Prospectus relating to the Contributor and the Servicer, the
Contracts, the origination procedures of the Contributor and the
servicing procedures of the Servicer is true and accurate in all
material respects, and nothing has come to his or her attention that
would lead such officer to believe that the Registration Statement or
the Prospectus, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein
not misleading;
(iv) the information set forth in the List of Contracts
required to be furnished pursuant to the Contribution and Servicing
Agreement is true and correct in all material respects;
(v) there has been no amendment or other document filed
affecting the certificate of incorporation or bylaws of the
Contributor/Servicer since ______________ and no such amendment has
been authorized. No event has occurred since __________________, which
has affected the good standing of the Contributor/Servicer under the
laws of the State of Delaware;
(vi) there has not occurred any material adverse change, or,
any development involving a prospective material adverse change, in the
condition, financial or otherwise, results of operations, business or
operations of the Contributor or the Servicer and its respective
subsidiaries, taken as a whole, since __________________; and
(vii) each person who, as an officer or representative of the
Contributor or the Servicer, signed or signs the Contributor Documents
or any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Contributor Documents, was, at
the respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
The Contributor/Servicer shall attach to such certificate a true and
correct copy of its certificate of incorporation and bylaws, which are in full
force and effect on the date of such certificate, and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
(h) The Underwriters shall have received a favorable opinion of counsel
to the Trustee, dated the Closing Date and in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) the Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the United
States of America, and has the power and authority to enter into and to
take all actions required of it under the Indenture;
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(ii) the Indenture has been duly authorized, executed and
delivered by the Trustee, and the Indenture constitutes the legal,
valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as enforceability thereof
may be limited by (A) bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
as such laws would apply in the event of a bankruptcy, insolvency or
reorganization or similar occurrence affecting the Trustee, and (B)
general principles of equity, regardless of whether such enforcement is
sought in a proceeding at law or in equity;
(iii) no consent, approval, authorization or other action by
any state or federal court or any governmental agency or body or other
tribunal is required on the part of the Trustee in connection with its
execution and delivery of the Indenture or the performance of its
obligations thereunder;
(iv) the Notes have been duly authenticated and delivered by
the Trustee; and
(v) the execution and delivery of, and performance by the
Trustee of its obligations under, the Indenture do not conflict with or
result in a violation of any statute or regulation applicable to the
Trustee, or the charter or bylaws of the Trustee, or any order,
judgment, writ, injunction or decree of any governmental authority
having jurisdiction over the Trustee, or, to the best knowledge of such
counsel, the terms of any material indenture or other agreement or
instrument to which the Trustee is a party or by which it is bound.
In rendering such opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Transferor, the Trustee and
public officials. Such opinion may also assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Trustee.
(i) The Underwriters shall have received from the Trustee a
certificate, signed by the president, a senior vice president or a vice
president of the Trustee, dated the Closing Date, to the effect that each person
who, as an officer or representative of the Trustee, signed or signs the Notes,
the Indenture or any other document delivered pursuant hereto, on the date
hereof or on the Closing Date, in connection with the transactions described in
the Indenture, was, at the respective times of such signing and delivery, and is
now, duly elected or appointed, qualified and acting as such officer and
representation, and the signatures of such persons appearing on such documents
are their genuine signatures.
(j) On or prior to the Closing Date, there has been no downgrading, nor
has any notice been given of (A) any intended or potential downgrading or (B)
any review or possible changes in rating, the direction of which has not been
indicated in the rating, if any, in any rating accorded the Notes by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of the Act.
(k) The Underwriters shall have received a favorable opinion of counsel
to the Issuer in its individual capacity and not as Owner Trustee (in such
capacity, the "Bank"), dated the Closing Date and in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
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(i) the Issuer is a ___________ duly organized, validly
existing and in good standing under the laws of Delaware, and has the
power and authority to enter into and to take all actions required of
it under the Transaction Documents to which it is a party;
(ii) each of the Transaction Documents to which the Issuer is
a party has been duly authorized, executed and delivered by the Issuer,
and such document constitutes the legal, valid and binding obligation
of the Issuer, enforceable against the Issuer in accordance with its
terms, except as enforceability thereof may be limited by (A)
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, as such laws would
apply in the event of a bankruptcy, insolvency or reorganization or
similar occurrence affecting the Issuer, and (B) general principles of
equity, regardless of whether such enforcement is sought in a
proceeding at law or in equity;
(iii) no consent, approval, authorization or other action by
any state or federal court or any governmental agency or body or other
tribunal is required on the part of the Issuer, in connection with its
respective execution and delivery of the Transaction Documents to which
it is a party or the performance of its respective obligations
thereunder, except for the filing of the ____________________ with the
Delaware Secretary of State;
(iv) the Notes have been duly executed by the Issuer; and
(v) the execution and delivery of, and performance by the
Issuer of its obligations under the Transaction Documents to which it
is a party do not conflict with or result in a violation of any statute
or regulation of the State of Delaware or the United States government,
or the organizational documents or bylaws of the Issuer, or to the best
knowledge of such counsel without independent investigation any order,
judgment, writ, injunction or decree of any governmental authority
having jurisdiction over the Issuer or, to the best knowledge of such
counsel without independent investigation, the terms of any material
indenture or other agreement or instrument to which the Issuer is a
party or by which it is bound.
In rendering such opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Transferor, the Issuer and
public officials. Such opinion may also assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Transferor and the Issuer.
(l) Since ____________, there has not occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the business or operations, of (A) the Transferor, (B) the
Servicer or (C) the Contributor, that, in either Underwriter's judgment, is
material and adverse and that makes it, in either Underwriter's reasonable
judgment, impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus.
(m) The Underwriters shall have received a certificate, signed by an
assistant secretary of the Issuer, dated the Closing Date, to the effect that
each person who, as an officer or representative of the Issuer, signed or signs
any Transaction Document or any other document
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delivered pursuant hereto, on the date hereof or on the Closing Date, in
connection with the transactions described in the Subsequent Contract Transfer
Agreement, was, at the respective times of such signing and delivery, and is
now, duly elected or appointed, qualified and acting as such officer and
representation, and the signatures of such persons appearing on such documents
are their genuine signatures.
(n) The Underwriters and counsel for the Underwriters shall have
received copies of any opinions of counsel to the Contributor, the Transferor or
the Issuer supplied to the Trustee relating to matters with respect to the
Notes. Any such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters to the Underwriters or shall
state the Underwriters may rely thereon.
(o) The Underwriters shall have received such further information,
certificates and documents as the Underwriters may reasonably have requested not
fewer than three (3) full Business Days prior to the Closing Date.
(p) The Contributor shall have transferred to the Trustee, for deposit
in the Collection Account to be maintained by the Trustee in accordance with the
Indenture, all Contract Payments actually received by the Contributor which were
due subsequent to the Cut-Off Date and received on or prior to the Closing Date.
(q) The Financing Statements shall have been prepared and filed as set
forth in Article One of the Contribution and Servicing Agreement.
If any of the conditions specified in this SECTION 6 shall not have
been fulfilled in all respects when and as provided in this Agreement, if the
Transferor, the Issuer or the Contributor is in breach of any covenants or
agreements contained herein or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Underwriters and counsel to
the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled on, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Transferor in
writing, or by telephone or telegraph confirmed in writing.
Section 7. REIMBURSEMENT OF EXPENSES. If (x) no closing of the sale of
the Notes occurs by the Closing Date through no fault of the Transferor, the
Issuer or the Contributor or because the conditions set forth in SECTION 6 have
not been met, or (y) the Underwriters terminate the engagement pursuant to
SECTION 10 or because any conditions precedent in SECTION 6 have not been
fulfilled, then the Transferor's or the Contributor's liability to the
Underwriters shall be limited to the reimbursement of the Underwriters' expenses
incurred through the date of termination for their reasonable out-of-pocket and
incidental expenses. In addition, whether or not the Notes are issued or sold:
(a) The Transferor or the Contributor shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of SECTION 7(B) including,
without limitation, the following fees and expenses:
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(i) rating agency fees payable with respect to their ratings
of the Notes;
(ii) any 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) reasonable fees and expenses of counsel to the
Underwriters;
(v) The Trustee's fees and expenses and reasonable fees and
expenses of counsel to the Trustee;
(vi) the costs and expenses of printing the Prospectus;
(vii) the costs of printing or reproducing this Agreement, the
Blue Sky Survey, if applicable, 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, if applicable;
(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 the Contributor
nor the Transferor waives any rights to reimbursement from the
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 SECTIONS 8
and 9, the 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.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transferor and the Contributor, jointly and severally, will
indemnify and hold harmless each Underwriter as follows: (i) against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the 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 or the 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
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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 the Transferor and the Contributor 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 or
the Prospectus or any such amendment or supplement, in reliance upon and in
conformity with the Underwriting Information (defined below); and (ii) against
any losses, claims, damages, liabilities, joint or several, and expenses
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Computational Materials, ABS Term
Sheets or Collateral Term Sheets distributed by any Underwriter; unless such
untrue statement or alleged untrue statement of a material fact was made in
reliance upon and in conformity with Derived Information provided by such
Underwriter expressly for use in the Computational Materials, the ABS Term
Sheets or the Collateral Term Sheets and the untrue statement or alleged untrue
statement did not derive from an inaccuracy in the Transferor- Provided
Information used in the preparation of such Computational Materials, ABS Term
Sheets or Collateral Term Sheets.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Transferor and the Contributor as follows: (i) against any
losses, claims, damages or liabilities to which the Transferor or the
Contributor may become subject, under the 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 Underwriting Information 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 in the Underwriting Information or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Transferor or the Contributor by or on behalf of
such Underwriter expressly for use therein; and will reimburse the Transferor or
the Contributor for any legal or other expenses reasonably incurred by the
Transferor or the Contributor 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; and (ii) against any losses, claims, damages and
expenses described in the indemnity contained in subsection (a) of this Section
8, as incurred, but only with respect to untrue statements or alleged untrue
statements made in the Computational Materials, Collateral Term Sheets or ABS
Term Sheets furnished by such Underwriter to the extent that such untrue
statement or alleged untrue statement of a material fact was made in reliance
upon and in conformity with Derived Information provided by it expressly for use
in the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statements or alleged untrue statements were not derived
from any inaccuracy in the Transferor-Provided Information used in the
preparation of such Computational Materials, ABS Term Sheets or Collateral Term
Sheets.
The Transferor and the Contributor acknowledge that the
statements set forth under the headings "THE UNDERWRITING" and "PLAN OF
DISTRIBUTION" in the Registration Statement and the Prospectus constitute the
only information furnished in writing by or on behalf of the Underwriters for
inclusion in the Registration Statement or the Prospectus (the "UNDERWRITING
INFORMATION"), and
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the Underwriters confirm that such statements are correct; provided, however,
that if but only if, all Transferor-Provided Information (as defined below) is
accurate and complete in all material respects, the references to "Underwriting
Information" in this Agreement shall be deemed to include any Derived
Information contained in a Form 8-K relating to the Notes filed by the
Transferor with the Commission. For purposes of this Section, the term "Derived
Information" means such portion, if any, of the information contained in
Computational Materials, Collateral Term Sheets or ABS Term Sheets in any Form
8-K relating to the Notes filed by the Transferor with the Commission as:
(1) is not also contained in the Prospectus or
the Prospectus Supplement without taking
into account information incorporated
therein by reference; and
(2) does not constitute Transferor-Provided
Information.
"Transferor-Provided Information" means the information set forth under the
heading "The Contracts" in the Prospectus Supplement and any computer tape or
other information furnished to any Underwriter by or on behalf of the Transferor
concerning the assets of the Issuer.
(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. 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 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
second preceding sentence, (ii) the indemnifying party shall 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
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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
indemnifying 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 thereon) 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 the Transferor and the Contributor
on the one hand and the 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 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 the Transferor or the Contributor on the one hand and
the 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 the Transferor or the
Contributor on the one hand and the 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 the Transferor and the Contributor bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Transferor or the Contributor on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Transferor,
the Contributor and the 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 SUBJECTION
(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), the 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their respective
underwriting obligations with respect to such Notes and not joint.
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(e) The obligations of the Transferor and the Contributor under this
SECTION 8 shall be in addition to any liability which the Transferor or the
Contributor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls either of the Underwriters
within the meaning of the Act, and the obligations of the Underwriters under
this SECTION 8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Transferor and the Contributor and to each person,
if any, who controls the Transferor or the Contributor within the meaning of the
Act.
Section 9. SURVIVAL. The respective representations, warranties and
agreements of the Transferor, the Issuer, the Contributor and the 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 the Transferor, the Issuer, the Contributor or the Underwriters or any
director, officer or controlling person thereof, and such representations,
warranties and agreements made by the Transferor, the Issuer and the Contributor
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 the Underwriters at any time
upon the giving of notice at any time prior to the Closing Date: (i) if there
has been, since __________________, any material adverse change in the
condition, financial or otherwise, of the Contributor, the Issuer or the
Transferor, or in the earnings, business affairs or business prospects of the
Contributor, the Issuer or the 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 crises 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 the Transferor, the Issuer
or the Contributor, except in accordance with law, without the written consent
of the Underwriters.
(c) Notwithstanding anything herein to the contrary, if the Transferor,
the Issuer or the Contributor 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 the Underwriters'
obligations hereunder may be immediately canceled by the Underwriters by notice
thereof to the Transferor or the Contributor. 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.
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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 the Underwriters, addressed to Prudential Securities
Incorporated, c/o ________, facsimile no.: (212) ________, at the address first
stated in this Agreement and if to Xxxxxx Brothers Inc., addressed c/o
___________________, facsimile no.: (212)_________, at the address set forth in
the beginning of this Agreement, or to such other address as either of the
Underwriters may designate with respect to itself in writing to the Transferor
or the Contributor; if to the Contributor, addressed to the Chief Financial
Officer at 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 18901, facsimile no.: (215)
345-4428; if to the Transferor, addressed to the Transferor at 000 Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, facsimile no.: (000) 000-0000, or such other
address as the Transferor or the Contributor may have designated in writing to
you; or, if to the Issuer, addressed to _________________________, facsimile
no.: ______________, or such other address as the Issuer may have designated in
writing to you.
Section 12. SUCCESSORS; ACTIONS BY THE UNDERWRITERS. This Agreement
will inure to the benefit of and be binding upon the Transferor, the Issuer and
the Contributor and their respective successors and assigns and the Underwriters
and their respective successors and assigns. Any action by the Underwriters
hereunder may be taken by the Underwriters jointly or by the [lead underwriter]
alone or on behalf of the Underwriters, and any such action taken by the [lead
underwriter] alone shall be binding upon the Underwriters.
Section 13. DEFAULT BY EITHER UNDERWRITER. If either Underwriter shall
fail on the Closing 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, the Transferor or the
Contributor shall have the right to postpone the Closing 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.
-25-
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) EACH UNDERWRITER, THE TRANSFEROR, THE ISSUER AND THE CONTRIBUTOR
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. THE TRANSFEROR, THE ISSUER AND THE CONTRIBUTOR
HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER. NOTHING IN THIS SECTION SHALL AFFECT
THE RIGHT OF THE TRANSFEROR, THE ISSUER OR THE CONTRIBUTOR 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) THE TRANSFEROR, THE ISSUER AND THE CONTRIBUTOR 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.
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If you are in agreement with the foregoing, please sign a counterpart
hereof and return the same to the Transferor, the Issuer and the Contributor,
whereupon this Agreement shall become a binding agreement among the
Underwriters, the Transferor, the Issuer and the Contributor.
Very truly yours,
DVI RECEIVABLES CORP. VIII
By:______________________________________
Name:
Title:
DVI FINANCIAL SERVICES INC.
By:______________________________________
Name:
Title:
DVI ___________________
By:______________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By:_____________________________________
Name:
Title:
XXXXXX BROTHERS INC.
By:_____________________________________
Name:
Title:
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EXHIBIT A
PURCHASING PRICE
Principal Amount to Principal Amount to
be Purchased by be Purchased by
Class of Note Price Prudential Securities, Inc. Xxxxxx Brothers Inc.
------------------ --------- ----------------------------- ---------------------
The Class A Notes % $ $
The Class B Notes % $ $
The Class C Notes % $ $
The Class D Notes % $ $
A-1
