NEWCOURT RECEIVABLES CORPORATION II (Trust Depositor)
NEWCOURT FINANCIAL USA INC. (Servicer)
UNDERWRITING AGREEMENT
[__________ __], 1998
First Union Capital Markets, a division of Wheat First Securities, Inc.
[Other Underwriters]
c/o First Union Capital Markets, a division of Wheat First Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Newcourt Receivables Corporation II, a Delaware corporation (the
"Trust Depositor"), proposes to cause Newcourt Receivables Asset Trust 1998-1
(the "Trust") to issue the asset backed notes identified in Schedule I hereto
(the "Notes"). The Notes will be issued pursuant to and secured by an indenture
(the "Indenture") to be entered into between Manufacturers and Traders Trust
Company as trustee (the "Indenture Trustee"), the form of which has been filed
as an exhibit to the Registration Statement (as defined below). The Notes
identified in Schedule I hereto will be sold in a public offering through the
underwriters listed in Schedule II hereto, one or more of which may act as
representative of such underwriters (any underwriter through which Notes are
sold shall be referred to herein as an "Underwriter" or, collectively, all such
Underwriters may be referred to as the "Underwriters"; any representatives
thereof may be referred to herein as a "Representative"). To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Sale and Servicing Agreement among the Trust Depositor, the Trust,
the Indenture Trustee and Newcourt Financial USA Inc. as Servicer (the
"Servicer") dated as of [_________ __], 1998.
Section 1. REPRESENTATIONS AND WARRANTIES. The Trust Depositor and the
Servicer represent and warrant to each Underwriter that:
(a) The Trust Depositor has prepared and filed with the Securities
and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities
Act"), a registration statement on Form S-1 (registration number
333-[______]), including a form of prospectus, relating to the Notes. The
registration statement, and any post-effective amendment thereto, each in
the form heretofore delivered to you and, excluding exhibits thereto, have
been declared effective by the Commission. As used in this Agreement,
"Effective Time"
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 2
means the date and the time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission and "Effective Date" means the date of the
Effective Time. The Trust Depositor has furnished to you, for use by the
Underwriters, copies of one or more preliminary prospectuses (each, a
"Preliminary Prospectus"), relating to the Notes. Except where the context
otherwise requires, the registration statement, as amended at the Effective
Time, including all documents filed as a part thereof, and including any
information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of
the registration statement as of the Effective Time pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, in the form filed by the Trust Depositor with the Commission
pursuant to Rule 424(b) under the Act or, if no such filing is required,
the form of final prospectus included in the Registration Statement at the
time it became effective, is hereinafter called the "Prospectus";
(b) The Registration Statement relating to the Notes, has been filed
with the Commission and such Registration Statement has become effective.
No stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Trust Depositor or the Servicer, threatened by the
Commission;
(c) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment thereto, as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, and as of the Closing
Date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER that this
representation and warranty shall not apply to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Indenture Trustee under the Trust
Indenture Act or (ii) any Underwriters' Information as defined in Section
10(b) hereof) contained therein. The Indenture conforms in all respects to
the requirements of the Trust Indenture Act and the rules and regulations
of the Commission thereunder.
(d) The representations and warranties of the Trust Depositor in
Section [3.01] of the Sale and Servicing Agreement will be true and correct
as of the Closing Date.
(e) The representations and warranties of the Servicer in Section
[3.02] of the Sale and Servicing Agreement will be true and correct as of
the Closing Date.
(f) The Servicer and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 3
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and
have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except
where the failure to so qualify or have such power or authority could not
have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a whole.
(g) All the outstanding shares of capital stock of the Trust
Depositor have been duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Registration
Statement, are owned by Newcourt Credit Group Inc. ("Newcourt") directly or
indirectly through one or more wholly-owned subsidiaries, free and clear of
any claim, lien, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(h) (i) the Sale and Servicing Agreement, when duly executed by the
Trust Depositor and the Servicer and delivered by such parties, will
constitute a valid and binding agreement of the Trust Depositor and the
Servicer enforceable against them in accordance with its terms; (ii) the
Indenture, when duly executed by the Indenture Trustee and delivered by the
Indenture Trustee, will constitute a valid and binding agreement of the
Trust enforceable against the Trust in accordance with its terms; (iii) the
Notes, when duly executed, authenticated, issued and delivered as provided
in the Indenture, will be duly and validly issued and outstanding and will
constitute valid and binding obligations of the Trust entitled to the
benefits of the Indenture and enforceable in accordance with its terms; and
(iv) the Indenture, the Sale and Servicing Agreement, the Trust Agreement
between the Trust Depositor and Chase Manhattan Bank Delaware, as Owner
Trustee and the Transfer and Sale Agreement between Newcourt Financial USA
Inc. as the Seller, and the Trust Depositor (collectively, the "Transaction
Agreements") and the Notes conform to the descriptions thereof contained in
the Prospectus.
(i) The execution, delivery and performance of this Agreement, the
Transaction Agreements to which the Servicer or its subsidiary, as the case
may be, is a party and the issuance and sale of the Notes, the consummation
of the transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Servicer or any of
its subsidiaries is a party or by which the Servicer or any of its
subsidiaries is bound or to which any of the property or assets of the
Servicer or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Servicer or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Servicer or any of its subsidiaries or any of their properties or
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[__________ __], 1998 4
assets; and except for the registration of the Notes under the Securities
Act, the qualification of the Indenture under the Trust Indenture Act, such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Notes by the
Underwriters and the filing of any financing statements required to perfect
the Trust's interest in the Trust Assets, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement or the Transaction Agreements, the issuance
and sale of the Notes and the consummation of the transactions contemplated
hereby and thereby.
(j) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act and which have not been so described or
filed.
(k) There are no legal or governmental proceedings pending to which
the Servicer or any of its subsidiaries is a party or of which any property
or assets of the Servicer or any of its subsidiaries is the subject which,
individually or in the aggregate, if determined adversely to the Servicer
or any of its subsidiaries, are reasonably likely to have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Servicer and its subsidiaries
taken as a whole; and to the best of the Servicer's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(l) Neither the Servicer nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property
or assets is subject or (iii) is in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject, except any violation or default that
could not have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Servicer
and its subsidiaries taken as a whole.
(m) This Agreement has been duly authorized, executed and delivered
by each of the Trust Depositor and the Servicer; and
(n) Neither the Trust nor the Trust Depositor is required to be
registered under the Investment Company Act of 1940, as amended.
Section 2. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, the Trust Depositor agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trust
Depositor, the principal amount of Notes set forth opposite
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 5
such Underwriter's name in Schedule II hereto. The purchase price for the
Notes shall be as set forth in Schedule I hereto.
Section 3. DELIVERY AND PAYMENT. Payment for the Notes shall be
made to the Trust Depositor or to its order by wire transfer of same day funds
at the office of [Winston & Xxxxxx in Chicago, Illinois at 9:00 A.M., Illinois
time], on the Closing Date (as hereinafter defined), or at such other time on
the same or such other date as the Representative and the Trust Depositor may
agree upon. The time and date of such payment for the Notes as specified in
Schedule I hereto are referred to herein as the "Closing Date." As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the Representative
for the respective accounts of the several Underwriters of the Notes registered
in the name of Cede & Co. as nominee of The Depository Trust Company and in such
denominations as the Representative shall request in writing not later than two
full Business Days prior to the Closing Date. The Trust Depositor shall make
the Notes available for inspection by the Representative in New York, New York
not later than one full Business Day prior to the Closing Date.
Section 4. OFFERING BY UNDERWRITERS. It is understood that the
several Underwriters propose to offer the Notes for sale to the public, which
may include selected dealers, as set forth in the Prospectus.
Section 5. COVENANTS OF THE TRUST DEPOSITOR. The Trust Depositor
covenants and agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act.
(b) During the period that a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with sales
of such Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"), before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Trust Depositor will
furnish to the Representative a copy of the proposed amendment or
supplement for review and will not file any such proposed amendment or
supplement to which the Representative reasonably objects.
(c) During the prospectus delivery period, the Trust Depositor will
advise the Representative promptly after it receives notice thereof, (i)
when any amendment to the Registration Statement shall have become
effective; (ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iii) of the issuance by the Commission of
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[__________ __], 1998 6
any stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose, (iv)
of the issuance by the Commission of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation
or threatening of any proceedings for that purpose and (v) of any
notification with respect to any suspension of the qualification of the
Notes for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and will use its best
efforts to prevent the issuance of any such stop order or suspension and,
if any is issued, will promptly use its best efforts to obtain the
withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act, the Trust Depositor promptly will prepare and file with the
Commission, an amendment or a supplement which will correct such statement
or omission or effect such compliance.
(e) The Trust Depositor will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the Notes; PROVIDED, HOWEVER, that the Trust Depositor shall not be
obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified; and PROVIDED, FURTHER, that the Trust Depositor
shall not be required to file a general consent to service of process in
any jurisdiction.
(f) The Trust Depositor will furnish to the Representative, without
charge, two copies of the Registration Statement (including exhibits
thereto), one of which will be signed, and to each Underwriter conformed
copies of the Registration Statement (without exhibits thereto) and, during
the prospectus delivery period. as many copies of any Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(g) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever first occurs, the Trust
Depositor will deliver to the Underwriters (i) the annual statements of
compliance, (ii) the annual independent certified public accountants'
reports furnished to the Indenture Trustee, (iii) all documents required to
be distributed to Noteholders of the Trust and (iv) all documents filed
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder, in each case as provided to the Indenture Trustee or
filed with the Commission, as soon as such statements and reports are
furnished to the Indenture Trustee or filed or as soon thereafter as
practicable.
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 7
(h) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other
actions by the Trust Depositor, the Trust Depositor shall furnish such
documents and take any such other actions.
(i) The Trust Depositor will cause the Trust to make generally
available to Noteholders and to the Representative as soon as practicable
an earnings statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Trust occurring after the Effective
Date of the Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
(j) For a period of 90 days from the date hereof, the Trust Depositor
will not offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce
any offering of, any securities collateralized by, or evidencing an
ownership interest in, any asset-backed securities of the Trust Depositor
or the Trust (other than the Notes purchased hereunder) without the prior
written consent of the Underwriters.
Section 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
respective obligations of the several Underwriters hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Trust Depositor and the Servicer contained herein, to the
accuracy of the statements of the Trust Depositor and the Servicer made in any
certificates pursuant to the provisions hereof, to the performance by the Trust
Depositor and the Servicer of their respective obligations hereunder and to each
of the following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 in the manner and within the applicable time period prescribed
for such filing by the rules and regulations of the Commission under the
Securities Act and in accordance with Section 5(a) of this Agreement; and,
prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceedings for such purpose shall have been initiated or threatened by
the Commission; and all requests for additional information from the
Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Transaction
Agreements, the Notes, the Registration Statement, the Preliminary
Prospectus and the Prospectus, and all other legal matters relating to such
agreements and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Trust Depositor shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters and (ii) prior to or contemporaneously with
the purchase of Notes
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[__________ __], 1998 8
hereunder, all transactions contemplated to be consummated under such
Transaction Documents on the Closing Date (including, without limitation,
the issuance and placement of any subordinated, privately-placed
securities) shall have been so consummated to the reasonable satisfaction
of the Underwriters.
(c) Winston & Xxxxxx shall have furnished to the Representative their
written opinion, as U.S. counsel to the Trust Depositor and the Servicer,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(d) (x) [____________] shall have furnished to the Representative his
written opinion, as Secretary to the Servicer, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and (y) [____________] shall have
furnished to the Representative his written opinion, as General Counsel to
the Servicer, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters.
(e) Winston & Xxxxxx shall have furnished to the Representative their
written opinion, as U.S. counsel to the Trust Depositor and the Servicer,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, with respect to the
characterization of the transfer of the Assets by the Seller to the Trust
Depositor pursuant to the Transfer and Sale Agreement as a sale and the
non-consolidation of the Trust Depositor and the Servicer.
(f) The Representative shall have received from Cadwalader,
Xxxxxxxxxx & Xxxx, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Underwriters
may require, and the Trust Depositor shall have furnished to such counsel
such documents as they reasonably request for enabling them to pass upon
such matters.
(g) (i) [Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx & Goodyear] shall have
furnished to the Representative their written opinion, as counsel to the
Indenture Trustee, addressed to the Underwriters and dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriters and
(ii) [Pryor, Cashman, Xxxxxxx & Xxxxx] shall have furnished to the
Representative their written opinion, as counsel to the Owner Trustee,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(h) Each of the Trust Depositor and the Servicer shall have furnished
to the Representative a certificate, dated the Closing Date, of any of its
Chairman of the Board, President or Vice President and its chief financial
officer stating that (i) such officers have carefully examined the
Registration Statement and the Prospectus, (ii) the Prospectus does not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (provided that each of the Trust Depositor and the
Servicer may exclude Underwriters'
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[__________ __], 1998 9
Information (as defined herein) from such representation), (iii) the
representations and warranties of the Servicer or the Trust Depositor,
as the case may be, contained in this Agreement and the Transaction
Agreements are true and correct in all material respects on and as of
the Closing Date, (iv) the Servicer or the Trust Depositor, as the case
may be, has complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder and under such agreements at or prior
to the Closing Date, (v) no stop order suspending the effectiveness of
the Registration Statement has been issued and is outstanding and no
proceedings for that purpose have been instituted and not terminated or,
to the best of his or her knowledge, are contemplated by the Commission,
and (vi) since the date of its most recent financial statements, there
has been no material adverse change in the financial position or results
of operations of the Servicer or the Trust Depositor, as applicable, or
the Trust or any change, or any development including a prospective
change, in or affecting the condition (financial or otherwise), results
of operations or business of the Servicer or the Trust Depositor or the
Trust except as set forth in or contemplated by the Registration
Statement and the Prospectus.
(i) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Trust
Depositor or the Servicer which materially impairs the investment quality
of the Notes; (ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter market shall
have been suspended or limited, or minimum prices shall have been
established on either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Trust Depositor or the
Servicer on any exchange or in the over-the-counter market shall have been
suspended or (iii) a general moratorium on commercial banking activities
shall have been declared by Federal or New York State authorities or (iv)
an outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representative,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus.
(j) With respect to the letter of [Ernst & Young LLP], delivered to
the Underwriters concurrently with the execution of this Agreement (the
"initial letter"), the Trust Depositor shall have furnished to the
Underwriters a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated the Closing Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualifications of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the bring-down
letter (or with respect to matters involving changes or developments since
the respective dates as of which specified financial
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[__________ __], 1998 10
information is given in the Prospectus, as of a date not more than five
days prior to the date of such bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by its initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in its initial
letter.
(k) The Underwriters shall receive evidence satisfactory to them
that, on or before the Closing Date, UCC-1 financing statements have been
or are being filed in each office in each jurisdiction in which such
financing statements are required to perfect the first priority security
interests created by the Sale and Servicing Agreement reflecting the
interest of the Trust Depositor in the Receivables and the proceeds
thereof.
(l) Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded the Notes or any
of the Trust Depositor's other debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Securities Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes or any of
the Trust Depositor's other debt securities.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
Section 7. TERMINATION. The obligations of the Underwriters
hereunder may be terminated by the Representative, in its absolute discretion,
by notice given to and received by the Trust Depositor and the Servicer prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Section 6(i) or Section 6(l) shall have occurred.
Section 8. DEFAULTING UNDERWRITERS.
(a) If, on the Closing Date, any Underwriter or Underwriters default
in the performance of its or their obligations under this Agreement, the
Representative may make arrangements for the purchase of such Notes by
other persons satisfactory to the Trust Depositor and the Representative,
including any of the Underwriters, but if no such arrangements are made by
the Closing Date, then each remaining non-defaulting Underwriter shall be
severally obligated to purchase the Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase on the Closing Date in the
respective proportions which the principal amount of Notes set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule
I hereto bears to the aggregate principal amount of Notes set forth
opposite the names of all the remaining non-defaulting Underwriters in
Schedule I hereto; PROVIDED, HOWEVER, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Notes on the
Closing Date if the aggregate principal amount of Notes which the
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[__________ __], 1998 11
defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds one-eleventh of the aggregate principal amount of the
Notes to be purchased on the Closing Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase in total more than [____]%
of the principal amount of the Notes which it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded and the remaining Underwriters or other underwriters
satisfactory to the Representative and the Trust Depositor do not elect to
purchase the Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Trust Depositor, except
that the provisions of Sections 9 and 13 shall not terminate and shall
remain in effect. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule I hereto who, pursuant to this
Section 8, purchases Notes which a defaulting Underwriter agreed but failed
to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Notes of a defaulting
Underwriter, either the Representative or the Trust Depositor may postpone
the Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Trust Depositor or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement, and the Trust Depositor
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus that effects any such changes.
Section 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (i) the
Trust Depositor shall fail to tender the Notes for delivery to the Underwriters
for any reason permitted under this Agreement or (ii) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement, the
Trust Depositor shall reimburse the Underwriters for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and the proposed
purchase of the Notes, and upon demand the Trust Depositor shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 8 by reason of the default of one or more Underwriters, the Trust
Depositor shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
Section 10. INDEMNIFICATION.
(a) The Servicer, the Trust Depositor and Newcourt shall, jointly and
severally, indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as the
Underwriter) against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that Underwriter may
become subject, under the Securities Act or otherwise, insofar as such
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 12
loss, claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary Prospectus
or the Prospectus or in any amendment thereof or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter for any legal or other
expenses reasonably incurred by that Underwriter directly in connection
with investigating or preparing to defend or defending against or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that
neither the Servicer, the Trust Depositor nor Newcourt shall be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any Registration
Statement as originally filed or in any amendment thereof or supplement
thereto, or in any Preliminary Prospectus or the Prospectus or in any
amendment thereof or supplement thereto in reliance upon and in conformity
with the Underwriters' Information.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless each of the Trust Depositor, the Servicer, Newcourt, and each
of their directors, each officer of the Trust Depositor, the Servicer or
Newcourt who signed the Registration Statement and each person, if any, who
controls the Trust Depositor, the Servicer or Newcourt within the meaning
of the Securities Act (collectively referred to for the purposes of this
Section 10 as the Trust Depositor, the Servicer or Newcourt, as
appropriate), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Trust Depositor,
the Servicer and Newcourt may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or in
any Preliminary Prospectus or the Prospectus or in any amendment thereof or
supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the
written information furnished to the Trust Depositor, the Servicer and
Newcourt through the Representative by or on behalf of such Underwriter
specifically for use therein (the "Underwriters' Information"), and shall
reimburse the Trust Depositor, the Servicer and Newcourt for any legal or
other expenses reasonably incurred by the Trust Depositor, the Servicer and
Newcourt in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with
any such loss, claim, damage or liability (or any action in respect
thereof) as such expenses are incurred.
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 13
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure; and, PROVIDED, FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the
Representative shall have the right to employ counsel to represent jointly
the Representative and the other Underwriters (and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought under this Section 10)
if, in the reasonable judgment of the Representative, it is advisable for
the Representative and the other Underwriters and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Trust Depositor, the
Servicer and Newcourt. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense
of any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
The obligations of the Servicer, the Trust Depositor, Newcourt and the
Underwriters in this Section 10 are in addition to any other liability which the
Servicer, the Trust Depositor, Newcourt or the Underwriters, as the case may be,
may otherwise have.
Section 11. CONTRIBUTION. If the indemnification provided for in
this Section 11 is unavailable or insufficient to hold harmless an indemnified
party under Section 10(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
any action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Servicer, the Trust Depositor and
Newcourt on the one hand and the Underwriters on the other from the offering of
the Notes or
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 14
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Servicer, the Trust Depositor and Newcourt on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Servicer, the Trust Depositor and Newcourt
on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes purchased hereunder (before deducting
expenses) received by the Trust Depositor bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Notes purchased hereunder, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Servicer, the Trust
Depositor and Newcourt on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Servicer, the Trust Depositor, Newcourt and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 11
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim damage or liability referred to above in this Section 11
shall be deemed to include, for purposes of this Section 11, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim or any action.
Notwithstanding the provisions of this Section 11, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public
were offered to the public less the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to indemnify and contribute as provided in this
Section 11 are several in proportion to their respective underwriting
obligations and not joint.
Section 12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Trust Depositor, the Servicer and Newcourt and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Trust Depositor, the Servicer and Newcourt and their respective successors
and the controlling persons and officers and directors referred to in Sections
10 and 11 and their heirs and legal representatives, any legal or equitable
light, remedy or claim under or in respect of this Agreement or any provision
contained herein.
First Union Capital Markets, a division of Wheat First Securities, Inc.
[__________ __], 1998 15
Section 13. EXPENSES. The Trust Depositor and the Servicer,
jointly and severally, agrees with the Underwriters to pay (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Notes and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (iii) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus and the Prospectus, all as provided in
this Agreement; (iv) the costs of reproducing and distributing this Agreement
and any other underwriting and selling group documents by mail, telex or other
means of communications; (v) the fees and expenses of qualifying the Notes under
the securities laws of the several jurisdictions as provided in Section 5(e) and
of preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including the related reasonable and documented fees and expenses of
counsel to the Underwriters); (vi) any fees charged by rating agencies for
rating the Notes; (vii) all fees and expenses of the Indenture Trustee and the
Owner Trustee and each of their counsel; (viii) any transfer taxes payable in
connection with its sale of the Notes pursuant to this Agreement; and (ix) all
other costs and expenses incident to the performance of the obligations of the
Trust Depositor and the Servicer under this Agreement; PROVIDED that, except as
otherwise provided in this Section 13, the Underwriters shall pay their own
costs and expenses, including, the costs and expenses of their counsel and the
expenses of advertising any offering of the Notes made by the Underwriters.
Section 14. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Trust Depositor,
the Servicer, Newcourt and the Underwriters contained in this Agreement or made
by or on their behalf, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Notes and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any person controlling any
of them.
Section 15. NOTICES. All communication hereunder shall be in
writing and, (i) if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at First Union Capital Markets, a division of
Wheat First Securities, Inc., Asset Securitization Division, 000 Xxxxx Xxxxxxx
Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000-0000, Telecopy Number: (704)
374-3254; PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to
Section 9(c) shall be delivered or sent by mail, delivery or telecopy to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request; (ii) if sent to the Trust Depositor, will be
mailed, delivered or telecopied and confirmed to them at the address of the
Trust Depositor set forth in the Registration Statement, Attention: Chief
Financial Officer; (iii) if sent to the Servicer, will be mailed, delivered or
telecopied and confirmed to them at the address of the Servicer set forth in the
Registration Statement, Attention: Vice President and Treasurer and (iv) if sent
to Newcourt, will be mailed, delivered or telecopied and confirmed to them at
the address of Newcourt set forth in the Registration Statement, Attention: Vice
President and Treasurer. Any such statements, requests, notices or agreements
shall take
First Union Capital Markets, a division of Wheat First Securities, Inc. 16
[__________ __], 1998
effect at the time of receipt thereof. The Trust Depositor, the
Servicer and Newcourt shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by the
Representative.
Section 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 17. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; CURRENCY INDEMNITY.
(a) To the fullest extent permitted by applicable law, each of the
Trust Depositor, the Servicer and Newcourt irrevocably submits to the
jurisdiction of any Federal or State court in the City, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court.
Each of the Trust Depositor, the Servicer and Newcourt hereby irrevocably
and fully waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. Each of the Trust Depositor, the Servicer and
Newcourt hereby irrevocably designates and appoints CT Corporation (the
"Process Agent"), as its authorized agent upon whom process may be served
in any such suit or proceeding, it being understood that the designation
and appointment of CT Corporation as such authorized agent shall become
effective immediately without any further action on the part of the Trust
Depositor, the Servicer or Newcourt. Each of the Trust Depositor, the
Servicer and Newcourt represents to each Underwriter that it has notified
the Process Agent of such designation and appointment and that the Process
Agent has accepted the same in writing. Each of the Trust Depositor, the
Servicer and Newcourt hereby irrevocably authorizes and directs the Process
Agent to accept such service. Each of the Trust Depositor, the Servicer
and Newcourt further agrees that service of process upon the Process Agent
and written notice of said service to the Trust Depositor, the Servicer or
Newcourt, as the case may be, mailed by first class mail or delivered to
the Process Agent at its principal office, shall be deemed in every respect
effective service of process upon the Trust Depositor, the Servicer or
Newcourt, as the case may be, in any such suit or proceeding. Nothing
herein shall affect the right of any Underwriter or any person controlling
any Underwriter to serve process in any other manner permitted by law.
Each of the Trust Depositor, the Servicer and Newcourt agrees that a final
action in any such suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
lawful manner.
(b) The obligation of the parties to make payments hereunder is in
U.S. dollars (U.S. dollars and such other currencies referred to above
being called the "Obligation Currency") and such obligation shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation
Currency or any other realization in such other currency, whether as
proceeds of set-off, security, guarantee, distributions, or
First Union Capital Markets, a division of Wheat First Securities, Inc. 17
[__________ __], 1998
otherwise, except to the extent to which such tender, recovery or
realization shall result in the effective receipt by the party which is
to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder, and the party liable to make such
payment agrees to indemnify the party which is to receive such payment
(as an additional, separate and independent cause of action) for the
amount (if any) by which such effective receipt shall fall short of the
full amount of the Obligation Currency expressed to be payable hereunder
and such obligation to indemnify shall not be affected by judgment being
obtained for any other sums due under this Agreement.
Section 18. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
Section 19. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 20. EFFECTIVENESS. This Agreement shall become effective
upon execution and delivery.
First Union Capital Markets, a division of Wheat First Securities, Inc. 18
[__________ __], 1998
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Trust Depositor, whereupon this letter
and your acceptance shall become a binding agreement among the Trust Depositor,
the Servicer, Newcourt and the several Underwriters.
Very truly yours,
NEWCOURT RECEIVABLES CORPORATION II
By:
Name:
Title:
NEWCOURT FINANCIAL USA INC.
By:
-----------------------------
Name:
Title:
NEWCOURT CREDIT GROUP INC.
By:
-----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS, A DIVISION
OF WHEAT FIRST SECURITIES, INC.,
as Representative of the Underwriters
By:
--------------------------------------
Name:
Title:
First Union Capital Markets, a division of Wheat First Securities, Inc. 19
[__________ __], 1998
SCHEDULE I
Date of Underwriting Agreement: [_______ __], 1998
Underwriters: First Union Capital Markets, a division of
Wheat First Securities, Inc.
Representative and Address: First Union Capital Markets, a division of
Wheat First Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Title, Purchase Price and Description of Notes:
CLASS A-1 NOTES
Title: $[___________] [_____]% Class A-1 Receivable-Backed
Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
discount: [_____]%
Distribution Dates: The 20th calendar day of each month (if such day is
not a Business Day, the next succeeding Business Day),
commencing [_________ __], 1998
Maturity: [_________] [____] Distribution Date
Redemption
provisions: Notes remaining outstanding may be redeemed in whole,
but not in part, on any Distribution Date at the Trust
Depositor's option if the ADCB of the Contract Pool
at such time is less than 10% of the initial ADCB of
the Contract Pool as of the Cutoff Date.
CLASS A-2 NOTES
Title: $[__________] [____]% Class A-2 Receivable-Backed
Notes, Series 1998-1
Price to public: [______]%
Purchase price: [______]%
Underwriting
discount: [______]%
Distribution Dates: The 20th calendar day of each month (if such day is
not a Business Day, the next succeeding Business
Day), commencing [_________ __], 1998
Maturity: [_________] [____] Distribution Date
Redemption
First Union Capital Markets, a division of Wheat First Securities, Inc. 20
[__________ __], 1998
provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
CLASS A-3 NOTES
Title: $[___________] [_______]% Class A-3 Receivable-Backed
Notes, Series 1998-1
Price to public: [________]%
Purchase price: [________]%
Underwriting
discount: [____]%
Distribution Dates: The 20th calendar day of each month (if such day is
not a Business Day, the next succeeding Business Day),
commencing [_________ __], 1998
Maturity: [_________] [_____] Distribution Date
Redemption
provisions: Notes remaining outstanding may be redeemed in whole,
but not in part, on any Distribution Date at the Trust
Depositor's option if the ADCB of the Contract Pool
at such time is less than 10% of the initial ADCB of
the Contract Pool as of the Cutoff Date.
CLASS A-4 NOTES
Title: $[___________] [_____]% Class A-4 Receivable-Backed
Notes, Series 1998-1
Price to public: [______]%
Purchase price: [______]%
Underwriting
discount: [______]%
Distribution Dates: The 20th calendar day of each month (if such day is not
a Business Day, the next succeeding Business Day),
commencing [_________ __], 1998
Maturity: [_________] [____] Distribution Date
Redemption
provisions: Notes remaining outstanding may be redeemed in whole,
but not in part, on any Distribution Date at the Trust
Depositor's option if the ADCB of the Contract Pool
at such time is less than 10% of the initial ADCB of
the Contract Pool as of the Cutoff Date.
Class B Notes
Title: $[__________] [_____]% Class B Receivable-Backed
Notes, Series 1998-1
Price to public: [_____]%
Purchase price: [_____]%
Underwriting
First Union Capital Markets, a division of Wheat First Securities, Inc. 21
[__________ __], 1998
discount: [_____]%
Distribution Dates: The 20th calendar day of each month (if such day is not
a Business Day, the next succeeding Business Day),
commencing [_________ __], 1998
Maturity: [_________] [____] Distribution Date
Redemption
provisions: Notes remaining outstanding may be redeemed in whole,
but not in part, on any Distribution Date at the Trust
Depositor's option if the ADCB of the Contract Pool at
such time is less than 10% of the initial ADCB of the
Contract Pool as of the Cutoff Date.
CLASS C NOTES
Title: $[_________] [_____]% Class C Receivable-Backed Notes,
Series 1998-1
Price to public: [______]%
Purchase price: [______]%
Underwriting
discount: [_____]%
Distribution Dates: The 20th calendar day of each month (if such day is not
a Business Day, the next succeeding Business Day),
commencing [_________ __], 1998
Maturity: [________] [____] Distribution Date
Redemption
provisions: Notes remaining outstanding may be redeemed in
whole, but not in part, on any Distribution Date at
the Trust Depositor's option if the ADCB of the
Contract Pool at such time is less than 10% of the
initial ADCB of the Contract Pool as of the Cutoff
Date.
Closing Date, Time and Location:
Date: [_________ __], 1998
Time: [9:00 Chicago time]
Location: [Winston & Xxxxxx 00 Xxxx Xxxxxx Xxxxx Xxxxxxx,
Xxxxxxxx]
First Union Capital Markets, a division of Wheat First Securities, Inc. 22
[__________ __], 1998
SCHEDULE H
UNDERWRITERS
$[__________] Principal Amount of Class A-1 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
[Other Underwriters] __________
__________
__________
UNDERWRITERS
$[__________] Principal Amount of Class A-2 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
[Other Underwriters] __________
__________
__________
UNDERWRITERS
$[__________] Principal Amount of Class A-3 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
[Other Underwriters] __________
__________
__________
UNDERWRITERS
$[__________] Principal Amount of Class A-4 Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
[Other Underwriters] __________
__________
__________
First Union Capital Markets, a division of Wheat First Securities, Inc. 23
[__________ __], 1998
UNDERWRITER
$[__________] Principal Amount of Class B Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
__________
__________
__________
UNDERWRITER
$[__________] Principal Amount of Class C Notes to be Purchased
Principal Amount
----------------
First Union Capital Markets, a division of Wheat First Securities, Inc. $__________
__________
__________
__________
