EXHIBIT 1.1
PEOPLE'S BANK CREDIT CARD MASTER TRUST
$ Floating Rate Class A
Asset Backed Certificates, Series 1999-1
$ Floating Rate Class B
Asset Backed Certificates, Series 1999-1
UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representative of
the Class A Underwriters and
as Class B Underwriter
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
September __, 1999
Dear Sirs:
People's Structured Finance Corp., a Connecticut corporation ("PSFC")
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and a wholly owned subsidiary of People's Bank, a Connecticut stock savings bank
(the "Bank"), proposes, subject to the terms and conditions stated herein, to
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sell to the underwriters listed on Schedule A hereto (the "Underwriters"), an
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aggregate of $___________ principal amount of People's Bank Credit Card Master
Trust Floating Rate Class A Asset Backed Certificates, Series 1999-1 (the "Class
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A Certificates") and $___________ Floating Rate Class B Asset Backed
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Certificates, Series 1999-1 (the "Class B Certificates" and, together with Class
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A Certificates, the "Certificates"). We refer to you herein in your capacities
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as Underwriters and as representative of the Underwriters as the
"Representative".
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Each Certificate will represent an undivided interest in the People's
Bank Credit Card Master Trust (the "Trust") established pursuant to an Amended
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and Restated Pooling and Servicing Agreement between the Bank, as Seller and as
Servicer of the credit card receivables transferred to the Trust, and Bankers
Trust Company, as trustee (the "Trustee"), dated as of March 18, 1997, as
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further amended by an amendment thereto dated as of September 24, 1998 (the "P&S
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Agreement"). Additional credit card receivables have been transferred to the
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Trust subsequent to the date of the P&S Agreement pursuant to separate
Assignments between the Bank and the Trustee (the "Assignments"). The Bank
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assigned to PSFC all of the Bank's right, title and interest in, to and under
the Exchangeable Seller Certificate pursuant to the Assignment and Assumption
Agreement (the "Assignment and Assumption Agreement"), dated as of December 15,
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1995. The Certificates will be issued pursuant to the P&S Agreement and the
Series 1999-1 Supplement between People's Bank, as Transferor and Servicer, and
Bankers Trust Company as Trustee, dated as of September __, 1999 (the "Series
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Supplement" and, together with the P&S Agreement and the Assignments, the
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"Pooling and Servicing Agreement"). The property of the Trust will include,
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among other things, receivables (the "Receivables") generated from time to time
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in a portfolio of MasterCard and VISA credit card accounts, all monies due or to
become due in payment of the Receivables, Recoveries and Interchange allocable
to the Trust, the benefits of the funds and securities on deposit in certain
bank accounts with respect to the Certificates and an interest rate cap
agreement for the exclusive benefit of the Class A Certificateholders and an
interest rate cap agreement for the exclusive benefit of the Class B
Certificateholders. In addition, the Certificates will have the exclusive
benefit of an interest in the Trust to be issued simultaneously with the
Certificates in the initial principal amount of $_____________ (the "Collateral
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Interest"), which is subordinate to the Class A Certificates and the Class B
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Certificates. To the extent not defined herein, capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
1. PSFC and the Bank, each only as to itself, represents and warrants
to, and agrees with, the Underwriters that:
(a) A registration statement in respect of the Certificates has been
filed with the Securities and Exchange Commission (the "Commission"); such
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registration statement and any post-effective amendment thereto, each in the
form heretofore delivered to the Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission and no
stop order suspending
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the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to PSFC's or the Bank's
knowledge, as applicable, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under
the Securities Act of 1933, as amended (the "Act"), being hereinafter called a
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"Preliminary Prospectus"; the various parts of such registration statement,
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including all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the registration statement at the time it
was declared effective, each as amended at the time such part of the
registration statement became effective, being hereinafter called the
"Registration Statement"; and such final prospectus, in the form first filed
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pursuant to Rule 424(b) under the Act, being hereinafter called the
"Prospectus");
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
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shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to either PSFC or the Bank by
the Representatives expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 with respect to the
Prospectus, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
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apply to any statements or omissions made
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in reliance upon and in conformity with information furnished in writing to
either PSFC or the Bank by the Representatives expressly for use therein;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of either
PSFC or the Bank and any of the Bank's subsidiaries, on a consolidated basis,
and (ii) neither PSFC nor the Bank or any of the Bank's subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary
course of business) material to PSFC or the Bank and the Bank's subsidiaries,
taken as a whole, that, in the case of either such clause (i) or (ii), would
reasonably be expected to materially adversely affect the interests of the
holders of the Certificates, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Bank has been duly incorporated and is validly existing as a
Connecticut stock savings bank under the laws of the State of Connecticut, with
all power, authority and legal right necessary to own its properties and
conduct its business as described in the Prospectus, and to enter into and
perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Assignment and Assumption Agreement and the Loan Agreement, and
had at all relevant times, and now has, the power, authority and legal right to
acquire, own and sell the Receivables, and is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals with
respect to the Bank in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would render any Receivable unenforceable by
the Bank or the Trust or would have a material adverse effect on the
Certificateholders, or any Enhancement Provider;
(f) PSFC has been duly incorporated and is validly existing as a
Connecticut corporation in good standing under the laws of the State of
Connecticut, with all power, authority and legal right necessary to own its
properties and conduct its business as described in the Prospectus, and to
enter into and perform its obligations under this Agreement and the Assignment
and Assumption Agreement and had at all relevant times, and now has, the power,
authority and legal right to acquire, own and exchange the Exchangeable Seller
Certificate, and is duly qualified to do business and is in good standing as a
foreign corporation (or is exempt from such requirements), and has obtained all
necessary licenses and
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approvals in each jurisdiction in which failure to qualify or to obtain such
licenses or approvals would have a material adverse effect on the
Certificateholders or any Enhancement Provider;
(g) The Certificates have been duly authorized and, when executed,
issued and delivered pursuant to the Pooling and Servicing Agreement, duly
authenticated by the Trustee and paid for by the Underwriters in accordance
with the terms of this Agreement, will have been duly and validly executed,
authenticated, issued and delivered and will be entitled to the benefits
provided by the Pooling and Servicing Agreement; the Pooling and Servicing
Agreement has been duly authorized by the Bank and, when executed and delivered
by the Bank and the Trustee, will constitute a valid and binding agreement of
the Bank, subject (x) to the effect of any applicable bankruptcy, insolvency,
reorganization, moratoriums, and other similar laws affecting creditors' rights
generally, (y) to the effect of general principles of equity including (without
limitation) concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law),
and (z) to the further qualification that certain remedial provisions in the
Pooling and Servicing Agreement may be limited or rendered ineffective by the
applicable laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the then
existing circumstances (but there exists in the Pooling and Servicing Agreement
or pursuant to applicable law legally adequate remedies for a realization of
the principal benefits purported to be provided thereby); the Certificates and
the Pooling and Servicing Agreement conform to the descriptions thereof in the
Prospectus in all material respects;
(h) The Assignment and Assumption Agreement has been duly authorized,
executed and delivered by PSFC and the Bank, as applicable, and constitutes a
valid and binding agreement of PSFC and the Bank, subject to the effect of (x)
any applicable bankruptcy, insolvency, reorganization, moratoriums, and other
similar laws affecting creditors' rights generally and (y) general principles
of equity including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered
in a proceeding in equity or at law);
(i) The Loan Agreement has been duly authorized by the Bank and when
executed and delivered by the Bank, the Trustee, the Collateral Interest Holder
and the Agent, will constitute a valid and binding agreement of the Bank,
subject (x) to the effect of any applicable bankruptcy, insolvency,
reorganization,
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moratoriums, and other similar laws affecting creditors' rights generally, (y)
to the effect of general principles of equity including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law), and (z)
to the further qualification that certain remedial provisions in the Loan
Agreement may be limited or rendered ineffective by the applicable laws of the
State of New York or judicial decisions governing such provisions or holding
their enforcement to be unreasonable under the then existing circumstances (but
there exists in the Loan Agreement or pursuant to applicable law legally
adequate remedies for a realization of the principal benefits purported to be
provided thereby);
(j) This Agreement has been duly authorized, executed and delivered
by the Bank and PSFC;
(k) The issuance and sale of the Certificates and the compliance by
PSFC and the Bank, as applicable, with all of the provisions of the
Certificates, this Agreement, the Pooling and Servicing Agreement, the
Assignment and Assumption Agreement and the Loan Agreement, as applicable, and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation of any
lien, mortgage, pledge, charge, security interest or encumbrance (collectively,
"Liens"), other than as contemplated in or permitted by the Pooling and
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Servicing Agreement, the Loan Agreement or the Assignment and Assumption
Agreement, upon any property or assets of PSFC or the Bank, as applicable,
pursuant to, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which PSFC, the Bank or any of the
Bank's other subsidiaries is a party or by which any of them is bound or to
which any of the property or assets of PSFC, the Bank or any of the Bank's
other subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of PSFC, or of
the Articles of Incorporation or By-laws of the Bank, as applicable, or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over PSFC, the Bank or any of the Bank's other
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale of the
Certificates or the consummation by PSFC or the Bank, as applicable, of the
transactions contemplated by this Agreement, the Assignment and Assumption
Agreement, the Loan Agreement or the Pooling and Servicing Agreement, except
the filing of Uniform Commercial Code
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financing statements with respect to the Receivables, the registration under
the Act of the Certificates, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Certificates by the Underwriters;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which either PSFC or the Bank, as
applicable, is a party or of which any property of either PSFC or the Bank is
the subject which are reasonably probable of adverse determination and which,
if determined adversely to PSFC or the Bank, as applicable, would have a
material adverse effect on the financial position, stockholders' equity or
results of operations of PSFC or the Bank or which could interfere with or
adversely affect the consummation of the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement or the
Assignment and Assumption Agreement; and, to the best of PSFC's and the Bank's
knowledge, as applicable, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others except as set forth in or
contemplated by the Prospectus;
(m) Neither PSFC nor the Bank or any of the Bank's other affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(n) KPMG Peat Marwick, which have reviewed the statistical data
included in the Registration Statement, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery (as specified in Section 4 hereof), the
representations and warranties of the Seller and of the Servicer, made in
Sections 2.3 and 3.3, respectively, of the Pooling and Servicing Agreement
shall be true and correct; and the representations and warranties of the Seller
relating to the Receivables made in Section 2.4 of the Pooling and Servicing
Agreement shall be true and correct; provided, however, that the breach of any
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such representations and warranties in Section 2.4 of the Pooling and Servicing
Agreement shall not be deemed to be a breach hereunder unless such breach
materially adversely affects the interests of the holders of either the Class A
Certificates or the Class B Certificates;
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(p) At the time of execution and delivery of the Pooling and
Servicing Agreement, the Bank had good and marketable title to the Receivables
transferred to the Trustee pursuant thereto, free and clear of any Liens (other
than as contemplated in the Pooling and Servicing Agreement or the Assignment
and Assumption Agreement), and will not have assigned to any Person any of its
right, title or interest in the Receivables or in such Pooling and Servicing
Agreement (other than as contemplated in the Pooling and Servicing Agreement or
the Assignment and Assumption Agreement) and PSFC will not have assigned to any
Person any of its right, title or interest in the Certificates being issued
pursuant to the Pooling and Servicing Agreement (other than as contemplated in
the Pooling and Servicing Agreement); the Bank had at such time the power and
authority to transfer the Receivables to the Trustee; PSFC has on the date
hereof the power and authority to transfer the Certificates to the
Underwriters, and, upon execution and delivery to the Trustee of the Series
Supplement and execution, authentication and delivery to the Underwriters of
the Certificates, the Trustee will have good and marketable title to or a
perfected security interest in the Receivables and the Underwriters, upon
payment of the purchase price of the Certificates, will have good and
marketable title to the Certificates, in each case free and clear of any Liens
(other than Liens created by the Underwriters and other than as contemplated in
the Pooling and Servicing Agreement or the Assignment and Assumption
Agreement);
(q) Any taxes, fees and other governmental charges imposed upon PSFC
or the Bank or on the assets of the Trust in connection with the execution,
delivery and issuance by the Bank of this Agreement, the Pooling and Servicing
Agreement and the Certificates and which are due at or prior to the Time of
Delivery have been or will have been paid by PSFC or the Bank, as applicable,
at or prior to the Time of Delivery;
(r) The Receivables pledged by the Bank to the Trustee under the
Pooling and Servicing Agreement have an aggregate outstanding balance
determined as of [June 30, 1999] (the "Series Cut-Off Date"), in accordance
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with the Pooling and Servicing Agreement of not less than $_____________ (after
giving effect to the addition of Accounts on August 12, 1999 and the removal of
Accounts on June 30, 1999);
(s) The Trust is not an "investment company" or a company "controlled
by" an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act"); and
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(t) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
2. Subject to the terms and conditions herein set forth, PSFC agrees
to sell and deliver to the Underwriters, and the Underwriters agree, severally
and not jointly, to purchase from PSFC the number and type of Certificates set
forth in Schedule A opposite the name of each such Underwriter. The Class A
Certificates being purchased by the Underwriters hereunder are to be purchased
at a purchase price equal to % of the principal amount thereof. The Class
B Certificates being purchased by the Underwriters hereunder are to be purchased
at a purchase price equal to % of the principal amount thereof.
3. Upon the authorization by PSFC of the release of the Certificates,
the Underwriters propose to offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
4. The Certificates to be purchased by the Underwriters hereunder, in
definitive or book-entry form, and in such authorized denominations and
registered in such names as the Underwriters may request upon at least forty-
eight hours' prior notice to PSFC, shall be delivered by or on behalf of PSFC to
the Underwriters against payment by the Underwriters or on behalf of the
Underwriters of the purchase price therefor, in immediately available funds,
drawn to the order of PSFC, at the office of ▇▇▇▇▇, Brown & ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on September __, 1999, or at
such other place and time and date as the Underwriters and PSFC may agree upon
in writing, such time and date being herein called the "Time of Delivery" for
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such Certificates. Such Certificates will be made available for checking at
least twenty-four hours prior to the Time of Delivery at the office of ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ described above.
5. PSFC and the Bank each agrees with the Underwriters:
(a) To advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement as filed, or the Prospectus, and will not
effect such amendment or supplement without the consent of the Representatives,
which consent shall not be unreasonably delayed or withheld; to prepare and
file the Prospectus in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the 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
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430A(a)(3) under the Act; to advise the Underwriters, promptly after it
receives notice thereof, of the time when the Registration Statement, or any
amendment thereto, has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Certificates for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or
any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Certificates for offering
and sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Certificates, provided that in
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connection therewith neither PSFC nor the Bank shall be required to qualify as
a foreign corporation or dealer in securities, or to file a general consent to
service of process, in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as the Underwriters may from time to time reasonably request, and,
if the delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Certificates and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with the
Act, to notify the Underwriters and to prepare and file with the Commission and
furnish without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect
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such compliance; and in case the Underwriters are required to deliver a
prospectus in connection with the sales of any of the Certificates at any time
nine months or more after the date of issue of the Prospectus, upon the request
of the Underwriters but at the expense of the Underwriters, to prepare and
deliver to the Underwriters as many copies as the Underwriters may reasonably
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to the Certificateholders, as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Trust (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Bank, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the earlier of (i) the termination of trading restrictions on
the Certificates, as notified to PSFC and the Bank by the Representatives, and
(ii) the Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities of PSFC or the Bank or a trust formed by the Bank
which mature more than one year after the Time of Delivery and which are
substantially similar to the Certificates, without the prior written consent of
the Representatives;
(f) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all reports or other written communications (financial
or other) furnished to holders of the Certificates, and deliver to the
Underwriters as soon as they are available, copies of any reports and financial
statements furnished to or filed by PSFC or the Bank with the Commission, or
any national securities exchange on which the Certificates or any class of
securities of the Bank are listed;
(g) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all such additional information concerning the business
and financial condition of the Trust as the Underwriters may from time to time
reasonably request; and
(h) To the extent, if any, that the rating provided with respect to
the Certificates by Standard & Poor's Ratings Services and ▇▇▇▇▇'▇ Investors
Service, Inc. or the rating provided with respect to the Collateral Interest by
Fitch IBCA, Inc. is conditional upon the furnishing of documents or the taking
of any
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other actions by PSFC or the Bank, PSFC or the Bank, as applicable, shall
furnish such documents and take any such other actions.
6. PSFC and the Bank each covenants and agrees with the Underwriters
that together they will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the counsel and accountants of PSFC and the Bank,
as applicable, in connection with the registration of the Certificates under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, the Pooling and Servicing Agreement, the Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Certificates; (iii) all expenses in
connection with the qualification of the Certificates for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Certificates;
(v) any cost of preparing the Certificates; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Pooling and Servicing Agreement and the
Certificates; and (vii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all of its
own costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Certificates by it, and any advertising expenses connected
with any offers it may make.
7. The obligations of each of the Underwriters hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of each of PSFC and the Bank herein are, at and
as of the Time of Delivery, true and correct, the condition that each of PSFC
and the Bank shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section
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5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or, to the knowledge of PSFC, the Bank or the
Underwriters, threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives;
(b) Since the respective dates as of which information is given in
the Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial position, stockholders'
equity or results of operations of either PSFC or the Bank and its subsidiaries
on a consolidated basis otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriters makes it
impracticable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Registration
Statement;
(c) At the Time of Delivery, each of PSFC and the Bank shall have
furnished to the Underwriters certificates of an executive officer of PSFC or
the Bank, as applicable, as to the accuracy of the representations and
warranties of PSFC or the Bank, as applicable, herein at and as of the Time of
Delivery, as to the performance by PSFC or the Bank of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) through (c) of this Section and as
to such other matters as the Underwriters may reasonably request;
(d) ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to the Underwriters such opinion or
opinions, dated the Time of Delivery, with respect to the validity of the
Pooling and Servicing Agreement, the Certificates, the Registration Statement,
the Prospectus, and other related matters as the Underwriters may reasonably
request, and such counsel shall have received from PSFC or the Bank and their
counsel such papers and information as they may reasonably request from PSFC or
the Bank and their counsel to enable them to pass upon such matters;
(e) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for PSFC and the Bank, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Time of Delivery, in form and substance satisfactory
to the Underwriters and their counsel, substantially to the effect that:
13
(i) This Agreement has been duly authorized, executed and
delivered by each of PSFC and the Bank;
(ii) The Certificates have been duly authorized, executed
and delivered by the Bank and, when duly authenticated in accordance
with the terms of the Pooling and Servicing Agreement and delivered to
and paid for by the Underwriters in accordance with the terms of this
Agreement, will be validly issued and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Bank and constitutes the
legal, valid and binding agreement of the Bank enforceable against the
Bank in accordance with its terms, subject (x) to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors' rights generally, (y) to the
effect of general principles of equity including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law), and (z) to the further qualification that certain remedial
provisions in the Pooling and Servicing Agreement may be limited or
rendered ineffective by the applicable laws of the State of New York
or judicial decisions governing such provisions or holding their
enforcement to be unreasonable under the then existing circumstances
(but, in such counsel's opinion, there exists in the Pooling and
Servicing Agreement or pursuant to applicable law legally adequate
remedies for a realization of the principal benefits purported to be
provided thereby);
(iv) The Assignment and Assumption Agreement has been duly
authorized, executed and delivered by each of PSFC and the Bank and
constitutes the legal, valid and binding agreement of each of PSFC and
the Bank enforceable against PSFC and the Bank in accordance with its
terms, subject (x) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and (y) to the effect of general
principles of equity including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law);
14
(v) The Loan Agreement has been duly authorized, executed
and delivered by the Bank and constitutes the legal, valid and binding
agreement of the Bank enforceable against the Bank in accordance with
its terms, subject (x) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and (y) to the effect of general
principles of equity including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law), and (z) to
the further qualification that certain remedial provisions in the Loan
Agreement may be limited or rendered ineffective by the applicable
laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the
then existing circumstances (but there exists in the Loan Agreement or
pursuant to applicable law legally adequate remedies for a realization
of the principal benefits purported to be provided thereby);
(vi) The Pooling and Servicing Agreement need not be
qualified under the Trust Indenture Act of 1939, as amended; and the
Trust is not now, and immediately following the sale of the
Certificates pursuant to this Agreement will not be, required to
register under the 1940 Act;
(vii) Such counsel has participated in the preparation of
the Registration Statement and Prospectus. From time to time, such
counsel has had discussions with the officers and employees of PSFC
and the Bank, the independent accountants of PSFC and the Bank, and
employees and representatives of the Underwriters concerning the
information contained in the Registration Statement and Prospectus.
Based thereupon such counsel is of the opinion that the Registration
Statement and the Prospectus (except for the operating statistics,
financial statements, financial schedules and other financial and
operating data included therein, as to which it expresses no view)
comply as to form with the Act and the rules and regulations
thereunder;
(viii) The statements in the Prospectus under "Certain
Legal Aspects of the Receivables," insofar as such statements
constitute a summary of the legal matters, documents or proceedings
15
referred to therein, have been reviewed by such counsel and are
correct in all material respects. Furthermore, insofar as the
statements contained in the Registration Statement purport to
summarize certain provisions of the Certificates and the Pooling and
Servicing Agreement, such statements present summaries of such
provisions that are accurate in all material respects;
(ix) The Registration Statement has become effective under
the Act, and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) thereunder in the manner and within the time
period required by Rule 424(b). To the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose are pending or threatened by the Commission. Such counsel
does not know of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not described
and filed as required;
(x) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness (except as set forth in paragraph
(viii) above and under the headings "Prospectus Summary--Tax Status,"
"Prospectus Summary--ERISA Considerations," "Certain Federal Income
Tax Consequences" and "Certain Employee Benefit Plan Considerations")
of the information contained in the Registration Statement and
Prospectus. Based upon the participation and discussions described
above, no facts have come to such counsel's attention that cause it to
believe that the Registration Statement, as of its effective date
(except for the financial statements, financial schedules and other
financial and operating data included therein as to all of which such
counsel expresses no view), contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus, as of its date and as of the
Closing Date (except for the financial statements, financial
schedules, and other financial and operating data included therein as
to which such counsel expresses no view) contained or contains any
untrue statement of a material fact or omitted or omits to state a
material fact required
16
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(xi) The Receivables are accounts or general intangibles as
defined in the Uniform Commercial Code.
In rendering such opinion, such counsel shall be entitled to rely as to matters
of fact upon such certificates or other assurances of public officials and such
certificates of one or more officers of PSFC, the Bank and/or the Bank's other
subsidiaries or the legal opinion of the general counsel of PSFC and/or the
Bank as such counsel shall reasonably deem necessary.
(f) ▇▇▇▇▇, Brown & ▇▇▇▇▇, counsel for PSFC and the Bank, shall have
furnished to the Underwriters their opinion or opinions, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters and its
counsel, with respect to certain matters relating to the transfer of the
Receivables to the Trust, and the Financial Institutions Reform, Recovery and
Enforcement Act with respect to the effect of receivership of the Bank and with
respect to other related matters in a form previously approved by the
Underwriters and its counsel;
(g) ▇▇▇▇▇, Brown & ▇▇▇▇▇, special tax counsel for the Bank, shall
have furnished to the Underwriters their opinion or opinions, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters, to the
effect that for federal and New York State income tax purposes the Certificates
will be characterized as indebtedness that is secured by the Receivables, and
that the Trust will be treated as a mere security device for Federal and New
York State income tax purposes, and the statements set forth in the Prospectus
under the headings "Prospectus Summary -- Tax Status," "Prospectus Summary --
ERISA Considerations," "Certain Federal Income Tax Consequences" and "Certain
Employee Benefit Plan Considerations" are a fair and accurate summary of the
material tax consequences of the issuance and holding of the Certificates;
(h) Pullman & ▇▇▇▇▇▇, LLC, special Connecticut tax counsel for the
Bank, shall have furnished to the Underwriters their opinion, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters and its
counsel, to the effect that for Connecticut state income tax purposes the
Certificates will be characterized as indebtedness that is secured by the
Receivables and
17
that the Trust will be treated as a mere security device for Connecticut state
tax purposes;
(i) Pullman & ▇▇▇▇▇▇, LLC, special Connecticut counsel for PSFC and
the Bank, shall have furnished to the Underwriters their opinion or opinions,
dated the Time of Delivery and satisfactory in form and substance to the
Underwriter and its counsel, with respect to the perfection of the Trust's
interest in the Receivables and with respect to the applicability of certain
provisions of Connecticut state banking law with respect to the effect of
receivership of the Bank and with respect to other related matters in a form
previously approved by the Underwriters and its counsel;
(j) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, general counsel of each of PSFC and the
Bank, shall have furnished to the Underwriters his written opinion, addressed
to the Underwriters and dated the Time of Delivery, in form and substance
satisfactory to the Underwriters and their counsel, substantially to the effect
that:
(i) The Bank has been duly incorporated and is validly
existing as a Connecticut stock savings bank under the laws of the
State of Connecticut, with power, authority and legal right necessary
to own its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement and
the Assignment and Assumption Agreement and had at all relevant times,
and now has, the power, authority and legal right to acquire, own and
sell the Receivables, and is duly qualified to do business and is in
good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals
with respect to the Bank in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals would render any
Receivable unenforceable by the Bank or the Trust or would have a
material adverse effect on the Certificateholders or any Enhancement
Provider;
(ii) PSFC has been duly incorporated and is validly
existing as a Connecticut corporation in good standing under the laws
of the State of Connecticut, with all power, authority and legal right
necessary to own its properties and conduct its business as described
in the Prospectus, and to enter into and perform its obligations under
18
this Agreement and had at all relevant times, and now has, the power,
authority and legal right to acquire, own and exchange the
Exchangeable Seller Certificate, and is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would have a material adverse effect
on the Certificateholders or any Enhancement Provider;
(iii) This Agreement, the Pooling and Servicing Agreement,
the Certificates, the Assignment and Assumption Agreement and the Loan
Agreement have been duly authorized, executed and delivered by the
Bank;
(iv) This Agreement and the Assignment and Assumption
Agreement have been duly authorized, executed and delivered by PSFC;
(v) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the performance by the
Bank of its obligations under the Pooling and Servicing Agreement or
the Loan Agreement, or (B) the issuance and sale of the Certificates
or of the Collateral Interest, except such as have been obtained under
the Act and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Certificates
by the Underwriters;
(vi) Neither the execution and delivery of this Agreement
or the Assignment and Assumption Agreement by PSFC and the Bank, or
the Certificates, the Pooling and Servicing Agreement or the Loan
Agreement by the Bank, nor the performance by PSFC or the Bank of the
transactions therein contemplated will result in any material
violation of any statute or regulation or any order or decree known to
such counsel of any court or governmental authority binding upon PSFC
or the Bank, as applicable, or their respective property, or conflict
with, or result in a breach or violation of any term or provision of,
or result in a default under any of the terms and provisions of, the
Certificate of Incorporation of PSFC, the Articles of Incorporation of
the Bank, the By-laws of PSFC or the Bank, as applicable, or any
19
material indenture, loan agreement or other material agreement of PSFC
or the Bank known to such counsel by which PSFC or the Bank is bound,
or result in a violation, or contravene the terms, of any statute or
regulation or, to the knowledge of such counsel, order applicable to
PSFC or the Bank of any court, regulatory body, administrative agency
or governmental body having jurisdiction over PSFC or the Bank, except
such counsel need express no opinion as to any statute, order or
regulation the violation of which would not have any material adverse
effect on PSFC or the Bank or their respective activities or to which
PSFC or the Bank may be subject as a result of the legal or regulatory
status of the addressees of the opinion or as a result of such
Persons' involvement in the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement or the Loan Agreement;
(vii) There are no proceedings or investigations pending
or, to the best knowledge of such counsel, threatened against PSFC or
the Bank, before any governmental authority (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement, the
Loan Agreement, the Certificates or the Assignment and Assumption
Agreement, (ii) seeking to prevent the issuance of the Certificates or
of the Collateral Interest or the consummation of any of the
transactions contemplated by this Agreement, the Pooling and Servicing
Agreement, the Loan Agreement, the Certificates or the Assumption
Agreement, (iii) seeking any determination or ruling that would
materially and adversely affect the performance by PSFC or the Bank of
their respective obligations under this Agreement, the Pooling and
Servicing Agreement, the Loan Agreement or the Assumption Agreement
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement, the
Pooling and Servicing Agreement, the Loan Agreement, the Certificates
or the Assignment and Assumption Agreement, or (v) seeking to assert
any tax liability against the Trust under the United States Federal,
New York State or Connecticut State income tax systems;
(viii) The statements in the Prospectus concerning PSFC and
the Bank and conduct of their respective business have been reviewed
by such counsel and are correct in all material respects; and
20
(ix) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness (except as set forth in paragraph
(viii) above) of the information contained in the Registration
Statement and Prospectus. Based upon the participation and
discussions described in subsection 7(e)(vii) above, no facts have
come to such counsel's attention that cause him to believe that the
Registration Statement, as of its effective date (except for the
financial statements, financial schedules and other financial and
operating data included therein as to all of which such counsel
expresses no view), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus, as of its date and as of the Closing Date (except
for the financial statements, financial schedules, and other financial
data included therein as to which such counsel expresses no view)
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(k) On the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also at the Time of Delivery, KPMG Peat Marwick
shall have furnished to the Underwriters letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to the Underwriters,
containing statements and information of the type customarily included in
accountants' "comfort letters" and "specified procedures letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
(l) At the Time of Delivery, the Underwriters shall have received an
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Trustee, dated the Time of Delivery,
and satisfactory in form and substance to the Underwriters and their counsel,
to the effect that:
(i) the Trustee is a banking corporation duly incorporated
and validly existing under the laws of the State of New York;
21
(ii) the Trustee has full power and authority to execute
and deliver, and to perform its obligations under the Pooling and
Servicing Agreement and the Loan Agreement and to carry out the
transactions contemplated by the Pooling and Servicing Agreement and
the Loan Agreement;
(iii) each of the P&S Agreement, the Assignment and
Assumption Agreement, the Series Supplement and the Loan Agreement has
been duly authorized, executed and delivered by the Trustee;
(iv) assuming the due execution and delivery by the Bank of
each of the Pooling and Servicing Agreement and the Loan Agreement and
that each of the Pooling and Servicing Agreement and the Loan
Agreement is the legal, valid and binding obligation of the Bank, each
of the Pooling and Servicing Agreement and the Loan Agreement
constitutes a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except
as the enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, liquidation and other similar
laws affecting the enforceability of creditors' rights generally, and
general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding at law or in equity) as
well as concepts of reasonableness, good faith and fair dealing;
(v) the Certificates have been duly authenticated by the
Trustee pursuant to the Pooling and Servicing Agreement;
(vi) no approval, authorization or other action by or
filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the banking
or trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing
Agreement or the Loan Agreement or the performance by the Trustee
thereunder; and
(vii) the execution and delivery of the Pooling and
Servicing Agreement and the Loan Agreement and the performance by the
Trustee of their respective terms do not conflict with or result
22
in a violation of (A) any United States of America or State of New
York law or regulation governing the banking or trust powers of the
Trustee or (B) the Articles of Incorporation or By-laws of the
Trustee;
(m) At the Time of Delivery, the Underwriters shall have received the
favorable written opinions of [
], German counsel to Bayerische Hypo-und Vereinsbank, and of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to Bayerische Hypo-und Vereinsbank, New York Branch
(the "Collateral Interest Holder"), as to the due authorization, execution and
--------------------------
delivery of the Loan Agreement by the Collateral Interest Holder and the
enforceability of the Loan Agreement, in each case in form and substance
satisfactory to the Underwriters and their counsel.
(n) The Underwriters shall have received evidence satisfactory to the
Underwriters that the Class A Certificates have received the rating of AAA by
Standard & Poor's Ratings Services and the rating of Aaa by ▇▇▇▇▇'▇ Investors
Service, Inc., the Class B Certificates shall have received the rating of A
from Standard and Poor's Ratings Services and a rating of A2 from Moody's
Investor's Service, Inc. and the Collateral Interest shall have received the
rating of BBB from Fitch IBCA, Inc. and such ratings shall not have been
rescinded or lowered, or at the Time of Delivery be under surveillance or
review;
(o) At the Time of Delivery, the Underwriters shall have received one
or more opinions of counsel to______________________-. (the "Interest Rate Cap
-----------------
Provider"), addressed to you, in form and substance satisfactory to the
--------
Underwriters and their counsel regarding the due authorization, execution,
delivery and enforceability by or against the Interest Rate Cap Provider of the
interest rate cap agreements, to be dated on or prior to September __, 1999,
between the Trustee and the Interest Rate Cap Provider (the interest rate cap
agreements are collectively referred to herein as the "Interest Rate Cap"), and
-----------------
such other matters as the Underwriters or their counsel may reasonably request
regarding the Interest Rate Cap.
(p) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or
23
war if the effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Prospectus;
(q) The Underwriters shall have received evidence satisfactory to the
Underwriters that, on or before the Time of Delivery, UCC-1 financing
statements have been filed in the appropriate filing offices of the State of
Connecticut and such other jurisdictions as counsel to PSFC and the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables;
(r) At the Time of Delivery, the Underwriters shall have received any
and all opinions of counsel and other memoranda prepared by any such counsel to
PSFC and the Bank which have been addressed to or supplied to each Rating
Agency rating the Certificates or the Collateral Interest. Any such opinions
or memoranda shall be addressed to the Underwriters or shall indicate that the
Underwriters may rely on such opinions as though they were addressed to the
Underwriters, and shall be dated the Time of Delivery;
(s) No Pay Out Event or other event or condition, which event or
condition with notice, the passage of time or both would result in a Pay Out
Event, shall have occurred or shall exist with respect to the Certificates at
the Time of Delivery; and
(t) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto and thereto shall be
satisfactory in form and substance to the Representatives and their counsel and
the Underwriters and their counsel shall have received such information,
certificates or documents as the Underwriters or their counsel may reasonably
request.
8. (a) PSFC and the Bank will jointly and severally indemnify and
hold harmless the Underwriters against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the
24
statements therein not misleading, and will reimburse the Underwriters for any
legal or other expenses reasonably incurred by the Underwriters in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither PSFC nor the Bank shall be liable in
-------- -------
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to either
PSFC or the Bank by the Underwriters for use therein; provided further that
-------- -------
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any Preliminary Prospectus, or in the Prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any of the Underwriters to the extent that such loss, claim, damage
or liability of such Underwriters results from the fact that such Underwriter
sold Certificates to a person as to whom it shall be established that there was
not sent or given to such person, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the Prospectus or of the
Prospectus as then amended or supplemented, if such delivery of such Prospectus
or such amended or supplemented Prospectus was required under the Act, and if
the Underwriters consented to and approved any such amendment or supplement to
such Prospectus pursuant to Section 5(a) of this Agreement and if either PSFC
or the Bank had previously furnished copies thereof to such Underwriters and
the untrue statement or omission or alleged untrue statement or omission
contained in such Preliminary Prospectus or the Prospectus was corrected in the
Prospectus or the Prospectus as then amended or supplemented.
(b) The Underwriters will indemnify and hold harmless PSFC and the
Bank against any losses, claims, damages or liabilities to which either PSFC or
the Bank may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein 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 any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information
25
furnished to either PSFC or the Bank by the Underwriters expressly for use
therein; and will reimburse PSFC and the Bank for any legal or other expenses
reasonably incurred by PSFC or the Bank in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (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 shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. Any
indemnifying party against whom indemnity may be sought shall not be liable to
indemnify any indemnified party under this Section 8 if any settlement of any
such action is effected without such indemnifying party's consent, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by PSFC and the Bank on the one hand and the
Underwriters on the other from the offering of the Certificates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
26
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of PSFC and the Bank on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by PSFC and the Bank 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 such
offering (before deducting expenses) received by PSFC bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
PSFC or the Bank on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. PSFC, the Bank and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Underwriters shall not be required to contribute any amount
in excess of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters has otherwise been
required to pay by reason of such 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of PSFC and the Bank under this Section 8 shall
be in addition to any liability which PSFC and the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the
27
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of PSFC or the Bank and to each
person, if any, who controls PSFC or the Bank within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of PSFC, the Bank and the Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriters or any controlling person of the Underwriters, PSFC, or the
Bank, or any officer or director or controlling person of PSFC or the Bank, and
shall survive delivery of and payment for the Certificates.
10. (a) If any Underwriter shall default in its obligation to
purchase the Class A Certificates which it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for themselves
as they may agree or another party or other parties to purchase such Class A
Certificates on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Underwriters do not arrange for the
purchase of such Class A Certificates, then PSFC shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Underwriters to purchase such Class A Certificates
on such terms. In the event that, within the respective periods, the
Underwriters notify PSFC that the Underwriters have so arranged for the
purchase of such Class A Certificates or PSFC notifies the Underwriters that it
has so arranged for the purchase of such Certificates, the Underwriters or PSFC
shall have the right to postpone the Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and PSFC and the Bank agree to file promptly any
amendments to the Registration Statement or the Prospectus which in the opinion
of the Underwriters may thereby be made necessary. The term "Underwriter" as
-----------
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this
Agreement with respect to such Class A Certificates.
(b) If, after giving effect to any arrangements for the purchase of
the Class A Certificates of a defaulting Underwriter by the non-defaulting
Underwriters and PSFC as provided in subsection (a) above, the aggregate
principal amount of such Class A Certificates which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of all the Class A
Certificates, then
28
PSFC shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Class A Certificates which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase a pro rata portion of the Class A Certificates of the
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve the defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Class A Certificates of a defaulting Underwriter by the non-defaulting
Underwriters and PSFC as provided in subsection (a) above, the aggregate
principal amount of Class A Certificates which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of all the Class A Certificates, or
if PSFC shall not exercise the right described in subsection (b) above to
require each non-defaulting Underwriter to purchase Securities of the
defaulting Underwriter, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter, PSFC or the Bank,
except for the expenses to be borne by PSFC, the Bank and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve the defaulting Underwriter
from liability for its default.
11. If either the Class A Certificates or the Class B Certificates
are not delivered by or on behalf of PSFC for any reason as provided herein,
PSFC or the Bank will reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Certificates, but neither PSFC nor the Bank
shall then have any further liability to the Underwriters except as provided in
Section 6 and Section 8 hereof.
12. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department;
if to PSFC shall be delivered or sent by mail, telex or facsimile transmission
to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq; and if to the Bank shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Bank set forth in the Registration
Statement, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Any such statements, request
notices or agreements shall take effect upon receipt thereof.
29
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, PSFC the Bank and, to the extent provided in
Section 8 and Section 9 hereof, the officers and directors of PSFC and the Bank
and each person who controls PSFC, the Bank or the Underwriters, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Certificates from the Underwriters shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence in this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
------------
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one
and the same instrument.
17. Any covenant, provision, agreement or term of this Agreement that
is prohibited or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
18. Each Underwriter represents and agrees that (a) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements)(Exemptions) Order 1996 or who is a person
to whom the document may otherwise lawfully be issued or passed on; (b) it has
complied and shall comply with all applicable provisions of the Financial
Services Act 1986 of Great Britain with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the United
Kingdom; and (c) if such Underwriter is an authorized person under the
Financial Services Act 1986, it has only promoted and shall only promote (as
that term is defined in Regulation 1.02 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991) to any person in the United
30
Kingdom the scheme described in the Prospectus if that person is of a kind
described either in Section 76(2) of the Financial Services Act 1986 or in
Regulation 1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
31
If the foregoing is in accordance with your understanding, please sign
and return two counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement among
the Underwriters, the Bank and PSFC.
Very truly yours,
PEOPLE'S STRUCTURED FINANCE CORP.
By:
--------------------------------------------
Name:
Title:
PEOPLE'S BANK
By:
----------------------------------------------
Name:
Title:
Accepted as of the date hereof:
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Representative on
behalf of the Class A
Underwriters and as
Class B Underwriter
SCHEDULE A
----------
Aggregate
Principal
Amount of the Class A
Certificates
Underwriter ------------
-----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc....................... $
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ Brothers Inc. $
$
$____
$
Aggregate
Principal
Underwriter Amount of the Class B
----------- Certificates
------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc....................... $
33
