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MELLON BANK PREMIUM FINANCE LOAN MASTER TRUST
CLASS B FLOATING RATE ASSET BACKED
CERTIFICATES, SERIES 1996-1
CLASS B UNDERWRITING AGREEMENT
____________________, 1996
CS FIRST BOSTON CORPORATION
as Representative of the
Several Underwriters
00 Xxxx 00xx Xxxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. AFCO Credit Corporation, a New York
corporation ("AFCO Credit"), and AFCO Acceptance Corporation, a California
corporation ("AFCO Acceptance" and together with AFCO Credit in their capacity
as servicer, the "Servicer" and in their capacity as originators, the
"Originators") propose to convey the Receivables arising from certain insurance
premium finance loans to Mellon Bank, N.A., a national banking association
organized under the laws of the United States of America (the "Transferor"). The
Transferor proposes to convey such Receivables and other rights to the Mellon
Bank Premium Finance Loan Master Trust (the "Trust"), and proposes to cause the
Trust to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), $_____________ aggregate initial principal amount of Class B
Floating Rate Asset Backed Certificates, Series 1996-1 (the "Class B
Certificates"), in the Trust, the terms of which are described in the Prospectus
(as defined below). It is understood that Transferor is currently entering into
a Class A Underwriting Agreement dated the date hereof (the "Class A
Underwriting Agreement") among the Transferor and the Underwriters named on
Schedule I thereto (the "Class A Underwriters") providing for the sale of
$____________ aggregate initial principal amount of Class A Floating Rate Asset
Backed Certificates, Series 1996-1 (the "Class A Certificates"). The Class B
Certificates and the Class A Certificates are referred to herein collectively as
the "Certificates." This Agreement and the Class A Underwriting Agreement are
referred to herein collectively as the "Underwriting Agreements."
The Receivables will be conveyed by the Originators to the Transferor
pursuant to the Receivables Purchase Agreement dated as of December 1, 1996 (the
"Receivables Purchase Agreement") between the Originators and the Transferor.
The Receivables will be conveyed by the Transferor to the Trust and the
Certificates will be issued pursuant to a Pooling and Servicing Agreement, dated
as of December 1, 1996 (the "P&S") among the Transferor, the Servicer, Premium
Financing Specialists, Inc., as back-up servicer (the "Back-up Servicer") and
The First National Bank of Chicago, as trustee (the "Trustee"), and the Series
1996-1 Supplement to the P&S, to be dated as of ___________, 1996 (the
"Supplement"), between the same parties. The P&S and the Supplement are referred
to herein collectively as the "Pooling and Servicing Agreement." In addition,
the Transferor, Servicer, [Back-up Servicer], Trustee and _____________ (the
"Collateral Interest Holder") will enter into a Loan Agreement to be dated as of
the Closing Date (the "Loan Agreement") pursuant to which the Collateral
Interest Holder will acquire _____________ aggregate initial principal amount of
the Collateral Interest (the "Collateral Interest"), which will act as Credit
Enhancement for the Certificates.
Capitalized terms used herein (including in the Introductory hereto)
that are not otherwise defined shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement.
Section 2. Representations and Warranties of Transferor. (a) Transferor
represents and warrants to, and agrees with, each Underwriter as set forth in
this Section 2. Certain terms used in this Section 2 are defined in paragraph
(i) below.
(i) Transferor meets the requirements for use of Form S-3
under the Securities Act and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration
No. 333-11961, including a related preliminary prospectus, on such Form
for the registration under the Securities Act, of the Certificates.
Transferor may have filed one or more amendments thereto, including the
related preliminary prospectus, each of which has previously been
furnished to the Representative. Transferor will next file with the
Commission (A) prior to the effectiveness of such registration
statement, a further amendment thereto (including the form of final
prospectus relating to the Class B Certificates) or (B) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4) under the Securities
Act. In the case of clause (B), Transferor has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in the
Prospectus with respect to the Class B Certificates and the offering
thereof. As filed, such amendment and form of final prospectus shall
include all Rule 430A Information, together with all other such
required information, with respect to the Class B Certificates and the
offering thereof and, except to the extent the Underwriters shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to the Representative prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond
that contained in the latest preliminary prospectus which has
previously been furnished to the Representative) as Transferor has
advised the Representative, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the
undertakings specified by item 512(a) of Regulation S-K, the
Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
The terms that follow, when used in this Agreement, have the
meanings indicated. The term "Effective Date" means each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" means the date and
time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" means any preliminary prospectus
referred to in the preceding paragraph and any preliminary prospectus
included in the Registration Statement which, at the Effective Date,
omits Rule 430A Information. "Prospectus" means the form of prospectus
relating to the Class B Certificates that is first filed with the
Commission pursuant to Rule 424(b) or, if no filing pursuant to Rule
424(b) is required, means the prospectus relating to the Class B
Certificates included in the Registration Statement at the Effective
Date. "Registration Statement" means the registration statement
referred to in the preceding paragraph and any registration statement
required to be filed under the Securities Act or rules thereunder,
including incorporated documents, exhibits and financial statements, in
the form in which it has or shall become effective and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended. Such term shall include Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
424," "Rule 430A," "Rule 415" and "Regulation S-K" refer to such rules
or regulations under the Securities Act. "Rule 430A Information" means
information with respect to the Class B Certificates and the offering
thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. [Any reference herein to the
Registration Statement, or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the Effective
Date of the Registration Statement or the issue date of the Prospectus,
as the case may be; and] any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(ii) On the Effective Date, the Registration Statement did or
will comply in all material respects with the applicable requirements
of the Securities Act and the rules thereunder; on the Effective Date
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (as amended and
together with any supplements thereto) did or will comply in all
material respects with the applicable requirements of the Securities
Act and the rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(as amended and together with any supplements thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that Transferor makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplements thereto)
in reliance upon and in conformity with information furnished in
writing to Transferor by any Underwriter specifically for use in
connection with the preparation of the Registration Statement or the
Prospectus (or any supplements thereto).
(iii) Transferor is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and has all requisite power, authority and legal right
to own its properties and conduct its business as described in the
Registration Statement and the Prospectus and to execute, deliver and
perform the Underwriting Agreements, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and the Loan Agreement
(collectively the "Specified Agreements"), to authorize the issuance of
the Certificates and the Collateral Interest and to consummate the
transactions contemplated hereby.
(iv) Transferor is duly qualified to do business and is in
good standing (or is exempt from such requirement) in any state
required in order to conduct its business, and has obtained all
necessary licenses and approvals with respect to Transferor required
under Federal and Pennsylvania law.
(v) The execution, delivery and performance by Transferor of
the Specified Agreements, the issuance of the Certificates and the
Collateral Interest and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized
by all necessary action or proceedings.
(vi) This Agreement has been duly executed and delivered by
Transferor.
(vii) Transferor has authorized the conveyance of the
Receivables to the Trust, and Transferor has authorized the Trust to
issue and sell the Certificates and the Collateral Interest.
(viii) The execution, delivery and performance by Transferor
of the Specified Agreements, the issuance of the Certificates and the
Collateral Interest and the fulfillment of the terms hereof and thereof
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time
or both) a default under, or (other than the Lien of the Pooling and
Servicing Agreement) result in the creation or imposition of any Lien
under any material indenture, contract, agreement, mortgage, deed of
trust or other instrument to which Transferor is a party or by which it
or any of its properties are bound.
(ix) The execution, delivery and performance by Transferor of
the Specified Agreements, the issuance of the Certificates and the
Collateral Interest and the fulfillment of the terms hereof and
thereof, will not conflict with or violate any Requirements of Law
applicable to Transferor.
(x) There are no proceedings or investigations pending or, to
the best knowledge of Transferor, threatened against Transferor before
any court, regulatory body, administrative agency, arbitrator or other
tribunal or governmental instrumentality (A) asserting the invalidity
of any Specified Agreement or the Certificates or the Collateral
Interest, (B) seeking to prevent the issuance of the Certificates or
the Collateral Interest or the consummation of any of the transactions
contemplated by the Specified Agreements, (C) seeking any determination
or ruling that, in the reasonable judgment of Transferor, would
materially and adversely affect the performance by Transferor of its
obligations under any Specified Agreement, (D) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of any Specified Agreements or the
Certificates or the Collateral Interest, or (E) seeking to affect
adversely the income tax attributes of the Trust, as described in the
Prospectus under the heading "U.S. Federal Income Tax Consequences";
and there are no contracts or documents of Transferor that are required
to be filed as exhibits to the Registration Statement by the Securities
Act or by the rules and regulations of the Commissioner promulgated
under the Securities Act (the "Rules and Regulations") that have not
been so filed.
(xi) All approvals, authorizations, consents, orders and other
actions of any Person or of any governmental body or official required
in connection with the execution and delivery of the Specified
Agreements, the issuance of the Certificates and the Collatera1
Interest and the performance of the transactions contemplated hereby
and thereby and the fulfillment of the terms hereof and thereof, have
been obtained.
(xii) Transferor has delivered to the Representative complete
and correct copies of (A) publicly available portions of the
Consolidated Reports of Condition and Income of Transferor for the
years ended December 31, 1993, 1994 and 1995, as submitted to the
Comptroller of the Currency; and (B) the December 31, 1993, 1994 and
1995, audited consolidated balance sheets of Mellon Bank Corporation
which are included at page __ of Mellon Bank Corporation's 1994 and
1995 Annual Reports to Stockholders. Except as otherwise set forth
therein, (x) there has been no material adverse change in the condition
(financial or otherwise) of Transferor and (y) there have been no
transactions entered into by Transferor, other than those in the
ordinary course of its business, that are material with respect to
Transferor.
(xiii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of the
Specified Agreements and the Certificates and the Collateral Interest
shall have been paid by Transferor or will be paid by Transferor at or
prior to the Closing Date to the extent then due.
(xiv) The Certificates and the Collateral Interest have been
duly and validly authorized. The Certificates, when validly
authenticated, issued and delivered in accordance with the Pooling and
Servicing Agreement and sold to the Underwriters as provided herein and
to the Class A Underwriters pursuant to the Class A Underwriting
Agreement, will be duly and validly issued and outstanding and entitled
to the benefits of the Pooling and Servicing Agreement, and, together
with the Pooling and Servicing Agreement, the Loan Agreement and the
Collateral Interest will conform in all material respects to the
descriptions thereof and the statements in relation thereto contained
in the Prospectus.
(xv) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Specified Agreements
constitute and the Certificates and the Collateral Interest, when
validly issued and, in the case of the Certificates, validly
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and sold to the Underwriters as provided herein and
to the Class A Underwriters pursuant to the Class A Underwriting
Agreement will constitute, the legal, valid and binding agreement of
Transferor enforceable in accordance with its respective terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xvi) On the Closing Date, Transferor will have good and
marketable title to the Receivables and other property transferred by
it to the Trust pursuant to the Pooling and Servicing Agreement, free
and clear of Liens (other than the Lien of the Pooling and Servicing
Agreement), and will not have assigned to any Person (other than the
Trustee) any of its right, title or interest in any of such Receivables
or such other property or in the Pooling and Servicing Agreement, and
the Underwriters and the Class A Underwriters will have good and
marketable title to Certificates, free and clear of all Liens when
validly authenticated, issued and delivered in accordance with the
Pooling and Servicing Agreement and sold to the Underwriters as
provided herein and to the Class A Underwriters pursuant to the Class A
Underwriting Agreement.
(xvii) At the time of each transfer of Receivables by
Transferor to the Trust after the Closing Date, Transferor will have
good and marketable title to all Receivables and the other property
being transferred by it to the Trust on such day, free and clear of
Liens (other than the Lien of the Pooling and Servicing Agreement), and
will not have sold to any Person (other than the Trustee) any of its
right, title or interest in any of such Receivables or such other
property.
(xviii) Neither Transferor nor the Trust is an "investment
company" or "controlled" by an "investment company" as such terms are
defined in the Investment Company Act.
(xix) As of the Closing Date each of the representations and
warranties of Transferor deemed made pursuant to the Pooling and
Servicing Agreement will be true and correct, and, as of each other
date on which Transferor is deemed, pursuant to the terms of the
Pooling and Servicing Agreement, to make any of the representations and
warranties set forth therein, and in Officer's Certificates of
Transferor delivered on each such date pursuant to the Pooling and
Servicing Agreement, will be true and correct and the Underwriters may
rely on such representations and warranties as if they were set forth
herein in full.
(b) Any Officer's Certificate signed by any officer of Transferor and
delivered to the Representative or its counsel shall be deemed a representation
and warranty of Transferor to the Underwriters as to the matters covered
thereby.
Section 3. Purchase and Sale. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, Transferor agrees to cause the Trust to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, except
as set forth in Section 9 below, to purchase the respective initial principal
amount of Class B Certificates set forth opposite such Underwriter's name in
Schedule I hereto, at a purchase price of ______% of the aggregate principal
amount thereof.
The Class B Certificates will initially be represented by one or more
certificates representing $________, aggregate initial principal amount, each of
which will be registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") (such certificates, the "DTC Certificates").
The interests of beneficial owners of the DTC Certificates will be represented
by book entries on the records of DTC and participating members thereof.
Definitive certificates evidencing the Class B Certificates will be available
only under the limited circumstances specified in the Pooling and Servicing
Agreement.
Delivery of the DTC Certificates shall be made to the accounts of the
several Underwriters at the office of DTC, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, against payment by the several Underwriters of the
purchase price therefor to or upon the order of Transferor in immediately
available funds at the office of Stroock & Stroock & Xxxxx, New York, New York
at 10:00 a.m., New York time, on ______________, 1996, or at such other time not
later than seven full business days thereafter as Transferor and the
Underwriters determine, such time being herein referred to as the "Closing
Date". The certificates evidencing the DTC Certificates will be made available
for checking at the office of Stroock & Stroock & Xxxxx at Seven Hanover Square,
New York, New York 10004, at least 24 hours prior to the Closing Date.
Section 4. Offering by the Underwriters. (a) It is understood that the
Underwriters propose to offer the Class B Certificates for sale to the public as
set forth in the Prospectus.
(b) Each Underwriter agrees that if it is a foreign broker dealer not
eligible for membership in the National Association of Securities Dealers, Inc.
(the "NASD"), it will not effect any transaction in the Class B Certificates
within the United States or induce or attempt to induce the purchase of or sale
of the Class B Certificates within the United States, except that it shall be
permitted to make sales to other Underwriters or to its United States
affiliates; provided that such sales are made in compliance with an exemption of
certain foreign brokers or dealers under Rule 15a-6 under the Exchange Act and
in conformity with the Rules of Fair Practice of the NASD as such Rules apply to
non-NASD brokers or dealers.
(c) Each Underwriter represents and agrees that (i) it has not offered
or sold and, prior to the expiry of the period of six months from the Closing
Date, will not offer or sell any Class B Certificates to Persons in the United
Kingdom except to Persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which do not
constitute an offer to the public in the United Kingdom for the purposes of the
Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom with respect to anything done by it in relation to the Class B
Certificates in, from or otherwise involving the United Kingdom; (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Class B
Certificates to a Person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1995
of the United Kingdom or is a Person to whom the document may otherwise lawfully
be issued or passed on.
Section 5. Certain Agreements of Transferor. Transferor covenants and
agrees with the several Underwriters that:
(a) Transferor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, 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), 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. Transferor will promptly
advise the Underwriters (i) when the Registration Statement, and any amendment
thereto, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and (v) of the receipt by Transferor of any
notification with respect to the suspension of the qualification of the Class B
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. Transferor will not file any amendment of the
Registration Statement or supplement to the Prospectus unless a copy has been
furnished to the Representative for its review prior to such filing. Transferor
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the lifting thereof.
(b) If, at any time when a Prospectus relating to the Class B
Certificates is required to be delivered under the Securities Act, any event
occurs as a result of which such Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement such Prospectus to comply with the
Securities Act or the Exchange Act or the Rules and Regulations thereunder,
Transferor promptly will prepare and file with the Commission an amendment or
supplement that will effect such compliance. Neither the consent of any
Underwriter to, nor the delivery by any Underwriter of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(c) As soon as practicable, but not later than the Availability Date
(as defined below), Transferor will cause the Trustee to make generally
available to the Holders of the Class B Certificates and to the Representative
an earnings statement with respect to the Trust covering a period of at least 12
months beginning after the Effective Date that will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 under the Securities Act. For
the purpose of the preceding sentence, "Availability Date" means the 45th day
after the end of the fourth fiscal quarter following the fiscal quarter that
includes the Effective Date, except that, if such fourth fiscal quarter is the
last quarter of Transferor's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter.
(d) Transferor will furnish to the Underwriters copies of the
Registration Statement as originally filed and each amendment thereto (in each
case at least three of which will be signed and will include all exhibits), each
related Preliminary Prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Underwriters may reasonably request. Transferor will furnish
or cause to be furnished to the Representative copies of all reports on Form SR
required by Rule 463 under the Securities Act.
(e) Transferor will arrange for the qualification of the Class B
Certificates for sale under the laws of such jurisdictions in the United States
as the Underwriters may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of the Class B
Certificates, provided that Transferor shall not be obligated to qualify to do
business nor become subject to service of process generally, but only to the
extent required for such qualification, in any jurisdiction in which it is not
currently so qualified, and will arrange for the determination of the legality
of the Class B Certificates for purchase by institutional investors.
(f) So long as any of the Class B Certificates are outstanding,
Transferor will deliver or cause to be delivered to the Underwriters (i) copies
of each report mailed to the Trustee or the Series 1996-1 Holders, as soon as
such report is mailed to the Trustee or such Holders, (ii) the annual statement
as to compliance and the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Sections 3.5 and 3.6 of the
Pooling and Servicing Agreement, as soon as such statements are furnished to the
Trustee, (iii) copies of all documents required to be filed with the Commission
pursuant to the Exchange Act or any order of the Commission thereunder, and (iv)
such other information concerning Transferor, the Certificates or the Trust as
the Underwriters may reasonably request from time to time.
(g) Transferor will pay all expenses incident to the performance of its
obligations under this Agreement, including without limitation, (i) expenses of
preparing, printing, reproducing and distributing the Registration Statement and
each amendment thereto, the preliminary prospectuses, the Prospectus (including
any amendments and supplements thereto), the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Loan Agreement and the Class B
Certificates, (ii) the fees and disbursements of the Trustee and its counsel,
(iii) the fees and disbursements of the independent public accountants of
Transferor and, to the extent previously agreed, fees and disbursements of
counsel to Transferor, (iv) the fees charged by Xxxxx'x Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Service, a division of The McGraw Hill
Companies, Inc. ("Standard & Poor's" and together with Moody's, the "Rating
Agencies") in connection with the rating of the Class B Certificates and the
Collateral Interest, as applicable, (v) the fees of DTC in connection with the
book-entry registration of the DTC Certificate, (vi) to the extent previously
agreed, the fees and expenses of Stroock & Stroock & Xxxxx in its roles as
underwriters' counsel and (vii) expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters, and will reimburse the Underwriters for any
expenses (including reasonable fees and disbursements of counsel) incurred by
the Underwriters pursuant to Section 5(e) hereof in connection with the
qualification of the Class B Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions in the United
States as the Underwriters may designate.
(h) On or before the Closing Date, Transferor shall cause its books and
records (including any computer records) to be marked relating to the
Receivables to be transferred to the Trust, to show the transfer to the Trust of
such Receivables, and from and after the Closing Date Transferor shall not take
any action inconsistent with the transfer to the Trust of such Receivables,
other than as permitted by the Pooling and Servicing Agreement.
(i) For a period of 30 days from the date hereof, none of Transferor or
any of its affiliates or any trust formed by it or any of its affiliates will,
without the prior written consent of the Underwriters, directly or indirectly,
offer, sell or contract to sell or announce the offering of, in a public or
private transaction, any other collateralized securities similar to the Class B
Certificates (other than the Class A Certificates and the Collateral Interest)
representing interests in insurance premium finance loans.
(j) So long as any Class B Certificates are outstanding, Transferor
will cause to be delivered to the Underwriters a reliance letter relating to
each Opinion of Counsel delivered to the Trustee or any Rating Agency by counsel
to Transferor pursuant to the Pooling and Servicing Agreement at the time such
opinion is delivered.
(k) To the extent, if any, that the rating provided with respect to the
Class B Certificates by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by Transferor, Transferor shall
furnish such documents and take any such other actions as may be required.
Section 6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Class B Certificates
will be subject to the accuracy of the representations and warranties on the
part of Transferor herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the officers of the Originators and Transferor
made pursuant to the provisions hereof, to the performance by the Transferor of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) (i) On the date of this Agreement, the Underwriters and Transferor
shall have received a letter, dated the date of delivery thereof (which, if the
Effective Time is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time is
subsequent to the execution and delivery of this Agreement, shall be prior to
the filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to the Effective Time), of KPMG Peat Marwick
("Peat Marwick") confirming that they are independent public accountants within
the meaning of the Securities Act and the Rules and Regulations, substantially
in the form of the draft to which the Underwriters have previously agreed and
otherwise in form and substance satisfactory to the Underwriters and counsel for
the Underwriters, and (ii) on the Closing Date, the Underwriters and Transferor
shall have received a letter, dated as of the Closing Date, from Peat Marwick
updating the letter referred to in clause (i) above, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(b) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than 10:00 a.m. New
York time on the date of this Agreement (or the next day, if this Agreement is
executed after the close of business on the date hereof); if filing of the
Prospectus, or any supplements thereto, is required pursuant to Rule 424(b), the
Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(c) Subsequent to the execution and delivery 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
any of the Originators or Transferor which, in the judgment of the Underwriters
materially impairs the investment quality of the Class B Certificates; (ii) any
downgrading in the rating of any debt securities of Mellon Bank Corporation or
any of its direct or indirect subsidiaries by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or any public announcement that any such organization has
under surveillance or review its rating of any such debt securities (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of Transferor on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal, New
York or Pennsylvania authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriters, the effect of and such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Class
B Certificates.
(d) The Representative shall have received:
(1) The favorable opinion or opinions of internal counsel of
Transferor and/or of Xxxx Xxxxx Xxxx & XxXxxx, counsel to Transferor,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, and in the aggregate substantially to
the effect that:
(i) Transferor has been duly organized as an
association licensed as a national banking association and is
validly existing and in good standing under the laws of the
United States, is duly qualified to do business and is in good
standing under the laws of each jurisdiction other than where
the failure to be so qualified would not have a material
adverse effect on Transferor's business, and has full
corporate power and authority to own its properties, to
conduct its business as described in the Registration
Statement and the Prospectus, to enter into and perform its
obligations under the Specified Agreements, to execute the
Certificates and to consummate the transactions contemplated
hereby and thereby;
(ii) each of the Specified Agreements and the
Certificates have each been duly authorized, executed and
delivered by Transferor;
(iii) neither the execution and delivery of the
Specified Agreements, nor the issuance or delivery of the
Certificates, nor the consummation of any of the transactions
contemplated herein or therein, nor the fulfillment of the
terms of the Certificates or the Specified Agreements, will
conflict with or violate, result in a material breach of or
constitute a default under (A) any Requirements of Law
applicable to Transferor or any statute or regulation
currently applicable to the Trust, (B) any term or provision
of any order known to such counsel to be currently applicable
to Transferor or the Trust of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over Transferor or the Trust, as the case may be, or (C) any
term or provision of any indenture or other agreement or
instrument known to such counsel to which Transferor or the
Trust is a party or by which either of them or any of their
properties are bound;
(iv) except as otherwise disclosed in the Prospectus
(and any supplements thereto) or the Registration Statement,
there is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator with
respect to the Trust, the Certificates, the Specified
Agreements or any of the transactions contemplated herein or
therein or with respect to Transferor which, in the case of
any such action, suit or proceeding with respect to Transferor
if adversely determined, would have a material adverse effect
on the Certificates or the Trust or upon the ability of
Transferor to perform its obligations under the Pooling and
Servicing Agreement or the Loan Agreement; and the statements
included in the Registration Statement and the Prospectus (and
any amendments or supplements thereto) describing (A) legal
proceedings relating to Transferor and (B) the insurance
premium finance loan agreements in each case fairly summarize
the matters therein described;
(v) such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and
any amendments or supplements thereto as of the Closing Date)
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading (other than financial and statistical
information contained therein as to which such counsel need
express no opinion) (such opinion may be limited to the
sections of the Prospectus under the headings ["Prospectus
Summary--Transferor," "Prospectus Summary--Servicer,"
"Maturity Assumptions," "Business of the Originators," and
"The Receivables"] and the parallel sections of the
Registration Statement and Exhibit ___ thereto; and
(vi) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation by Transferor or the Trust of the
transactions contemplated in the Specified Agreements, except
such as have been obtained under the Securities Act and such
as may be required under the blue sky laws of any jurisdiction
inside the United States in connection with the purchase and
distribution of the Class B Certificates by the Underwriters
and such filings or other approvals (specified in such
opinion) as have been made or obtained.
In rendering such opinion counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Trust, Transferor and
public officials. References to the Prospectus in this paragraph (d)
include any supplements thereto.
(2) The favorable opinion of Xxxxxxx & Xxxxxxx & Xxxxx,
counsel for the Underwriters, dated the Closing Date and to the effect
that:
(i) the Certificates, when executed, authenticated
and delivered as specified in the Pooling and Servicing
Agreement, and delivered against payment of the consideration
specified herein, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing Agreement;
(ii) each of the Receivables Purchase Agreement and
the Pooling and Servicing Agreement constitutes and the
Certificates, when validly issued and validly authenticated
and delivered in accordance with the Pooling and Servicing
Agreement and sold to the Underwriters as provided herein and
to the Class A Underwriters pursuant to the Class A
Underwriting Agreement, will constitute, the legal, valid and
binding agreement of Transferor, enforceable in accordance
with its terms (subject, as to enforcement or remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally from time
to time in effect and to the application of general principles
of equity);
(iii) the Loan Agreement constitutes the legal, valid
and binding agreement of Transferor, enforceable in accordance
with its terms (subject, as to enforcement or remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally from time
to time in effect and to the application of general principles
of equity);
(iv) the Registration Statement has become effective
under the Securities Act, and, to the best of their knowledge
and information, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Securities Act, and the Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations. Such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and
any supplements thereto as of the Closing Date) includes any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (other than financial and statistical information
contained therein as to which such counsel need express no
opinion);
(v) the Certificates and the Pooling and Servicing
Agreement each conform in all material respects with the
description thereof contained in the Registration Statement
and the Prospectus;
(vi) the Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended;
(vii) the Trust is not an "investment company" within
the meaning of the Investment Company Act;
(viii) the statements in the Registration Statement
under the heading "Certain Legal Aspects of the
Receivables-Transfer of Receivables", "U.S. Federal Income Tax
Consequences" and "ERISA Considerations" 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 are correct in all material
respects;
(ix) the Receivables constitute "general intangibles"
as defined in the Uniform Commercial Code in the State of
New York; and
(x) (x) the Certificates will properly be treated as
indebtedness for federal income tax purposes and (y) the Trust
will not be classified as an association or a publicly traded
partnership taxable as a corporation for federal income tax
purposes.
In rendering such opinion, Xxxxxxx & Xxxxxxx & Xxxxx may rely on the
opinions of Xxxx Xxxxx Xxxx & XxXxxx and internal counsel to Transferor and
Originators, as to the matters dealt with in such opinions.
(3) The favorable opinion of Xxxx Xxxxx Xxxx & XxXxxx, counsel
to Transferor, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, and substantially to
the effect that:
(i) the Receivables constitute "general intangibles" as
defined in the Uniform Commercial Code in effect in the
State of Pennsylvania;
(ii) Uniform Commercial Code financing statements with
respect to the Investor Interest in the Receivables and the
proceeds thereof have been filed in the office of the
Pennsylvania [Secretary of State]. No other filings or other
actions, with respect to the Trustee's interest in the
Receivables transferred and to be transferred by Transferor
to the Trust, are necessary to perfect the interest of the
Trustee in the Receivables, and the proceeds thereof,
against third parties, except that appropriate continuation
statements must be filed at five-year intervals;
(iii) in the event that a court were to conclude that
the assignment of the Receivables, all documents and
instruments relating thereto and all proceeds thereof to the
Trustee pursuant to the Pooling and Servicing Agreement was
not a sale, the Pooling and Servicing Agreement, together with
the filing of the financing statements referred to in
paragraph (v) above, create a first priority perfected
security interest in the Receivables transferred and to be
transferred by Transferor to the Trust, all documents and
instruments relating thereto and all proceeds thereof subject
to no prior Liens (in rendering such opinion counsel may take
such exceptions as are appropriate and reasonably acceptable
under the circumstances); and
(iv) the Certificates will properly be treated as
indebtedness for Pennsylvania state tax purposes.
(4) The favorable opinion or opinions of internal counsel of
each of the Originators and/or of Xxxx Xxxxx Xxxx & XxXxxx, counsel to
Originators, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, and in the aggregate
substantially to the effect that:
(i) each of the Originators has been duly organized
and licensed as a corporation and is validly existing and in
good standing under the laws of New York and California,
respectively, is duly qualified to do business and is in good
standing under the laws of each jurisdiction where it conducts
its business other than where the failure to be so qualified
would not have a material adverse effect on Originator's
business, and has full corporate power and authority to own
its properties, to conduct its business as described in the
Registration Statement and the Prospectus, to enter into and
perform its obligations under the Specified Agreements to
which it is a party and to consummate the transactions
contemplated hereby and thereby;
(ii) each of the Specified Agreements to which it is a
party has been duly authorized, executed and delivered by
Transferor;
(iii) neither the execution and delivery of the
Specified Agreements to which it is a party, nor the
consummation of any of the transactions contemplated herein or
therein, nor the fulfillment of the terms of the Specified
Agreements, will conflict with or violate, result in a
material breach of or constitute a default under (A) any
Requirements of Law applicable to either of the Originators or
any statute or regulation currently applicable, (B) any term
or provision of any order known to such counsel to be
currently applicable to either of the Originators of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over either of the Originators, as
the case may be, or (C) any term or provision of any indenture
or other agreement or instrument known to such counsel to
which either of the Originators is a party or by which either
of them or any of their properties are bound;
(iv) except as otherwise disclosed in the Prospectus
(and any supplements thereto) or the Registration Statement,
there is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator with
respect to the Specified Agreements to which the Originators
are a party or any of the transactions contemplated herein or
therein or with respect to the Originators which, in the case
of any such action, suit or proceeding with respect to either
of the Originators if adversely determined, would have a
material adverse effect on the Certificates or the Trust or
upon the ability of either of the Originators to perform its
obligations under the Specified Agreements; and the statements
included in the Registration Statement, and the Prospectus
(and any supplements thereto) describing (A) legal proceedings
relating to the Originators and (B) the insurance premium
finance loan agreements, regulation of premium finance
companies and state insurance funds [other regulatory
matters?] in each case fairly summarize the matters therein
described;
(v) such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and
any supplements thereto as of the Closing Date) includes any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (other than financial and statistical information
contained therein as to which such counsel need express no
opinion) (such opinion may be limited to the sections of the
Prospectus under the headings "Prospectus Summary -- Trust
Assets," "Business of the Originators," and "the Receivables;
(vi) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation by the Originators or the Trust of the
transactions contemplated in the Specified Agreements to which
the Originators are a party, except such as have been obtained
under the Securities Act and such as may be required under the
blue sky laws of any jurisdiction inside the United States in
connection with the purchase and distribution of the Class B
Certificates by the Underwriters and such filings or other
approvals (specified in such opinion) as have been made or
obtained; and
(vii) such counsel has been advised of the
Originators' standard operating procedures relating to the
Originators' acquisition of a perfected first priority
security interest in the unearned premiums securing the
obligations of the borrowers under insurance premium finance
agreements originated by Originators in the ordinary course of
the Originators' business. Assuming that the Originators'
standard operating procedures are followed with respect to the
perfection of security interests in the unearned premiums
relating to the Receivables (such counsel having no reason to
believe that the Originators has not or will not continue to
follow its standard operating procedures in connection with
the perfection of security interests in unearned premiums),
the Originator has acquired or will acquire a perfected first
priority security interest in the unearned premiums relating
to the Receivables.
In rendering such opinion counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Trust, Transferor and
public officials. References to the Prospectus in this paragraph (d)
include any supplements thereto.
(5) The favorable opinion or opinions of internal counsel of
Back-up Servicer and/or of Withrop & Xxxx, X.X., counsel to Back-up
Servicer, dated the Closing Date and satisfactory in form and substance
to the Representative and its counsel, and in the aggregate
substantially to the effect that:
(i) Back-up Servicer has been duly organized and
licensed as a corporation and is validly existing and in good
standing under the laws of _____________, is duly qualified to
do business and is in good standing under the laws of each
jurisdiction other than where the failure to be so qualified
would not have a material adverse effect on Back-up Servicer's
business, and has full corporate power and authority to own
its properties, to conduct its business as described in the
Registration Statement and the Prospectus, to enter into and
perform its obligations under the Pooling and Servicing
Agreement, and to consummate the transactions contemplated
hereby and thereby;
(ii) each of the Specified Agreements as to which it is
a party to have been duly authorized, executed and delivered
by Back-up Servicer;
(iii) the execution of the Pooling and Servicing
Agreement will not conflict with or violate, result in a
material breach of or constitute a default under (A) any
Requirements of Law applicable to Back-up Servicer, (B) any
term or provision of any order known to such counsel to be
currently applicable to Back-up Servicer of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over Back-up Servicer, as the case may
be, or (C) any term or provision of any indenture or other
agreement or instrument known to such counsel to which
Back-up Servicer is a party or by which any of Back-up
Servicer's properties are bound;
(iv) assuming the laws of the State of __________ are
the same as the laws of the State of _____________, the
Pooling and Servicing Agreement constitutes the legal, valid
and binding obligation of the Back-up Servicer, enforceable
in accordance with its respective terms, except that (y) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(z) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(6) Reliance letters relating to each opinion rendered to the
Trustee or any Rating Agency by Xxxx, Xxxxx, Xxxx & XxXxxx or any other
counsel to Transferor in connection with the rating of the
Certificates.
(7) The favorable opinion of ____________________, counsel to
the Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel to the effect that:
(i) The Trustee has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the United States of America with full power and
authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Specified
Agreements to which it is a party and to issue the
Certificates and the Collateral Interest;
(ii) each of the Specified Agreements to which it is a
party has been duly authorized, executed and delivered by
the Trustee;
(iii) assuming the laws of the State of Illinois are
the same as the laws of the State of New York, the Specified
Agreements to which it is a party constitute the legal, valid
and binding obligation of the Trustee, enforceable in
accordance with their respective terms, except that (y) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(z) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iv) the Certificates have been duly executed,
authenticated and delivered by the Trustee;
(v) neither the execution and delivery by the Trustee
of the Specified Agreements to which it is a party nor the
consummation of any of the transactions by the Trustee
contemplated thereby required the consent or approval of, the
giving of notice to, the registration with or the taking of
any other action with respect to, any governmental authority
or agency under any existing federal or state law governing
the banking or trust powers of the Trustee; and
(vi) the execution and delivery of the Specified
Agreements to which it is a party by the Trustee and the
performance by the Trustee of their respective terms do not
conflict with or result in a violation of (A) any law or
regulation of the United States of America or the State of
Illinois governing trust powers of the Trustee, (B) the
Articles of Association or By-Laws of the Trustee, or (C) to
the best of their knowledge, any indenture, lease, or other
material agreement to which the Trustee is a party or to which
its assets are subject.
(e) The Representative shall have received a certificate dated the
Closing Date of the President, any Vice President, the Treasurer or any
Assistant Treasurer, of Transferor in which such officer shall state that the
representations and warranties of Transferor in this Agreement are true and
correct, and that Transferor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission, and subsequent to the date of
the most recent financial statements of Transferor delivered to the
Representative hereunder, there has been no material adverse change in the
condition, financial or otherwise, whether or not arising from transactions in
the ordinary course of business, of Transferor except as set forth in or
contemplated by the Registration Statement and the Prospectus.
(f) The Representative shall have received a certificate dated the
Closing Date of the President, any Vice President, the Treasurer or any
Assistant Treasurer, of each of the Originators in which such officer shall
state that the representations and warranties of each of the Originators in
Specified Agreements to which it is a party are true and correct, and that each
of the Originators has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(g) The Class A Certificates shall be rated ["Aaa"] by Xxxxx'x and
["AAA"] by Standard & Poor's, and the Class B Certificates shall be rated at
least ["A2"] by Xxxxx'x and ["A"] by Standard & Poor's.
(h) The Representative shall have received evidence satisfactory to it
and its counsel that, on or before the Closing Date, UCC-1 financing statements
have been filed in the office of the Secretary of State of the State of New York
and the office of [the Secretary of State of the State of California] reflecting
the interest of the Transferor in the Receivables and the office of the
[Secretary of State] of Pennsylvania reflecting the interest of the Trust in the
Receivables and the proceeds thereof.
(i) The Representative and Transferor shall have received from counsel
for the Collateral Interest Holder reasonably acceptable to the Representative
and Transferor, the favorable opinion or opinions, dated the Closing Date and
satisfactory in form and substance to the Representative, its counsel,
Transferor and its counsel, and in the aggregate substantially to the effect
that:
(1) The Collateral Interest Holder is a corporation duly
organized and validly existing under the laws of the State of
___________ and has the corporate power and authority under the laws of
the State of ___________ to execute, deliver and perform its
obligations under the Loan Agreement;
(2) the Loan Agreement has been duly and validly authorized,
executed and delivered by the Collateral Interest Holder and
constitutes the legal, valid and legally binding obligation of the
Collateral Interest Holder enforceable against the Collateral Interest
Holder in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium, readjustment of debt or other similar laws
affecting the enforcement of creditors' rights generally, as such laws
may be applied in the event of a bankruptcy, insolvency,
reorganization, liquidation, moratorium, readjustment of debt of, or
the appointment of a receiver with respect to the property of, or a
similar event applicable to the Collateral Interest Holder; and
(3) all consents, approvals, authorizations, licenses, rulings
or orders of or actions by any ___________ or federal governmental
authority and all filings, recordings or publications, if any, required
on the part of the Collateral Interest Holder in connection with the
execution, delivery or performance by the Collateral Interest Holder of
the Loan Agreement have been obtained or made and are in full force and
effect.
(j) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Trust any Originator or Transferor the effect of
which, in any case referred to above, is, in the judgment of the Underwriters,
so material and adverse as to make it impractical or inadvisable to proceed with
the offering or the delivery of the Class B Certificates as contemplated by the
Registration Statement and the Prospectus (and any supplements thereto).
(k) Each of the representations and warranties of the Originators,
Back-up Servicer and Transferor contained in the Specified Agreements are true
and correct as of the Closing Date.
(l) Simultaneously with or prior to the Closing Date, $__________
aggregate initial principal amount of the Class A Certificates shall have been
sold to the Class A Underwriters.
Transferor will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters may reasonably request.
Section 7. Indemnification and Contribution. (a) Transferor will
indemnify and hold harmless each Underwriter and each Person who controls any
Underwriter within the meaning of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which the Underwriters or any of
them may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and each Person who
controls any Underwriter within the meaning of the Securities Act for any actual
legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that Transferor will
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 in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to
Transferor by any Underwriter specifically for use therein.
(b) Each Underwriter, severally, agrees to indemnify and hold harmless
Transferor against any losses, claims, damages or liabilities to which
Transferor may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus or
any amendment or supplement thereto, or any related preliminary prospectus, 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 reliance upon and in conformity with written
information furnished to Transferor by such Underwriter specifically for use
therein, and will reimburse any actual legal or other expenses reasonably
incurred by Transferor in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action or the assertion by a third party of
a claim, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party except and to the extent of any prejudice to
such indemnifying party arising from such failure to provide such notice. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by Transferor on the
one hand and the Underwriters on the other from the offering of the Class B
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of Transferor 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 as well as any other relevant equitable
considerations. The relative benefits received by Transferor on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Class B Certificates (before
deducting expenses) received by Transferor bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Transferor or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount applicable to the
Class B Certificates purchased by such Underwriter hereunder. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of Transferor under this Section shall be in
addition to any liability that Transferor may otherwise have and shall extend,
upon the same terms and conditions, to each Person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of any
Underwriter under this Section shall be in addition to any liability that such
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of Transferor, to each officer of Transferor who
signed the Registration Statement and to each Person, if any, who controls
Transferor within the meaning of the Securities Act.
Section 8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of Transferor or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, Transferor or any of their respective
representatives, officers or directors or any controlling Person, and will
survive delivery of and payment for the Class B Certificates. If for any reason
the purchase of the Class B Certificates by the Underwriters is not consummated,
Transferor shall remain responsible for the expenses to be paid or reimbursed by
Transferor pursuant to Section 5(g) hereof and the respective obligations of
Transferor and the Underwriters pursuant to Section 7 hereof shall remain in
effect. If the purchase of the Class B Certificates by the Underwriters is not
consummated for any reason other than solely because of the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c) hereof, Transferor
will reimburse the Underwriters for all actual out-of-pocket expenses (including
fees and disbursements of counsel to the extent previously agreed) reasonably
incurred by them in connection with the offering of the Class B Certificates.
Section 9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Class B Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Class B Certificates set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Class B Certificates set forth opposite the
names of all the remaining Underwriters) the Class B Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Class B Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Class B Certificates set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Class B Certificates, and if such nondefaulting Underwriters do not purchase all
the Class B Certificates, this Agreement will terminate without liability to any
non-defaulting Underwriter, the Trust or Transferor. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Underwriters shall
determine in order that the required changes in the Registration Statement and
the Prospectus (and any supplements thereto) or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to Transferor and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
Section 10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them c/o CS First Boston Corporation, 00 Xxxx 00xx Xxxxxx, Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking Department
Transactions Advisory Group; or if sent to Transferor will be mailed, delivered
or telegraphed and confirmed to it at Mellon Bank, N.A., One Mellon Bank Center,
Pittsburgh, Pennsylvania, 15258, Attention: _______________.
Section 11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling Persons referred to in Section 7 hereof,
and no other Person will have any right or obligation hereunder.
Section 12. 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 Agreement.
Section 13. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to any otherwise applicable principles of conflicts of laws.
Section 14. 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.
Section 15. Representative. The Representative will act for the several
Underwriters in connection with this Agreement and the transactions contemplated
hereby and any action under this Agreement taken by the Representative will be
binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between Transferor and the
several Underwriters in accordance with its terms.
Very truly yours,
MELLON BANK, N.A.
By: ____________________________
Name: _______________
Title: ________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted,
as of the date first above written:
CS FIRST BOSTON CORPORATION
By: _______________________
Name:
Title:
For itself and the other
Underwriters named in
Schedule I to the foregoing
Underwriting Agreement.
SCHEDULE I
Underwriter Amount
CS First Boston Corporation.........................................$__________
-------------------.................................................$----------
Mellon Financial Markets, Inc.......................................$__________
