Exhibit 1.1
$[ ]
AIC PREMIUM FINANCE LOAN MASTER TRUST
$[ ] Series 1998-1 Class A Floating Rate Asset Backed Certificates
$[ ] Series 1998-1 Class B Floating Rate Asset Backed Certificates
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Underwriting Agreement
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
February [ ], 1998
Ladies and Gentlemen:
A.I. Receivables Corp. ("AIR" or the "Transferor"), a Delaware
corporation, 50% of the outstanding stock of which is owned by each of A.I.
Credit Corp. ("AIC"), a New Hampshire corporation, and AICCO, Inc. ("AICCO"), a
California corporation and a wholly-owned subsidiary of AIC (AIC, together with
AICCO, being referred to herein collectively as the "Original Transferors"),
proposes, subject to the terms and conditions stated in this underwriting
agreement ("this Agreement" or the "Underwriting Agreement"), to sell to
Xxxxxxx, Xxxxx & Co. (the "Underwriters"), an aggregate of $[ ] principal amount
of Series 1998-1 Class A Floating Rate Asset Backed Certificates and an
aggregate of $[ ] principal amount of Series 1998-1 Class B Floating Rate Asset
Backed Certificates (together, the "Offered Certificates").
Each Offered Certificate, together with each Series 1998-1 Class
C Floating Rate Asset Backed Certificate (collectively with the Offered
Certificates, the "Certificates") will represent an undivided interest in the
assets of AIC Premium Finance Loan Master Trust (the "Trust") established
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 1994 (the
"Original P&S Agreement"), as amended and restated as of February [ ], 1998,
among AIR, as Transferor, AIC and AICCO, as Original Transferors and Servicer,
and The First National Bank of Chicago, as trustee (the "Trustee") (the "P&S
Agreement"). The Certificates will be issued pursuant to the Series 1998-1
Supplement among AIR, as Transferor, AIC and AICCO, as Original Transferors and
Servicer, and the Trustee, dated as of February [ ], 1998, and the P&S Agreement
(collectively, together with the Series 1994-1 Supplement to the P&S Agreement
dated as of December 1, 1994, as amended and restated as of February [ ], 1998,
among AIR, as Transferor, AIC and AICCO, as Original Transferors and Servicer,
and the Trustee, the "Pooling and Servicing Agreement"). To the extent not
defined herein, capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement.
1. The Transferor 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
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; no stop order
suspending the effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or, to their best knowledge,
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 "Preliminary Prospectus"; the
various parts of such registration statement, 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 pursuant to Rule 424(b) under the Act, being hereinafter
called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the Preliminary Prospectus
dated February [ ], 1998 and filed with Amendment No. [ ] to the Registration
Statement ("Preliminary Prospectus No. 1"), at the time of filing thereof,
conformed in all material respects to the requirements of the Act and to 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 shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Transferor by the Underwriters 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 to 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 not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Transferor by the Underwriters 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 known to the Transferor or either of
the Original Transferors that could reasonably be expected to result in a
material adverse change, in or affecting the business, management, financial
position, stockholders' equity or results of operations of the Transferor or the
Original Transferors taken as a whole and (ii) none of the Transferor and the
Original Transferors has entered into any
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transaction or agreement (whether or not in the ordinary course of business)
material to the Transferor or either of the Original Transferors that, in the
case of either such clause (i) or (ii), would reasonably be expected to have a
materially adverse effect on the interests of the Certificateholders;
(e) Each of AIR, AIC and AICCO has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, the State of New Hampshire and the State of California,
respectively, with power and authority (corporate and other) to own its
respective properties and conduct its respective businesses as described in the
Prospectus, and to enter into and perform its obligations under this Agreement,
the Pooling and Servicing Agreement, the Receivables Sale Agreement, dated as of
February [ ], 1998, between AIC and AICCO, as sellers, and AIR, as purchaser
(the "Sale Agreement"), and, in the case of AIR only, the Support Agreement
dated as of February [ ], 1998 between American International Group, Inc.
("AIG") and AIR (the "AIR Support Agreement"). Each of AIC and AICCO has power
and authority (corporate and other) to perform its obligations under the Support
Agreement dated as of December 1, 1994 between AIG, AIC and AICCO (the "AIC
Support Agreement" and, together with the AIR Support Agreement, the "Support
Agreements"). Each of AIC and AICCO had, at the relevant time, power and
authority (corporate and other) to enter into the AIC Support Agreement. AIC
owns 100% of the outstanding stock of AICCO. Each of AIC and AICCO, as of the
date hereof, owns 50% of the outstanding stock of AIR. AIC has no material
subsidiaries other than AICCO, AIR, A.I. Credit [Consumer] Discount Company, AIG
Credit Corp. of Canada and AIG Credit (UK) Limited. AICCO has no subsidiaries
other than AIR. AIR has no subsidiaries. Each Original Transferor has had at all
relevant times, and now has, the power, authority and legal right to originate,
purchase and service Loans, and each of the Transferor and the Original
Transferors has had at all relevant times, and now has, the power, authority and
legal right to acquire (in the case of the Transferor), 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 in each jurisdiction in which failure to
qualify or to obtain such licenses or approvals (i) would render any Loan
unenforceable by it or any Receivable unenforceable by it or the Trust or (ii)
would have a material adverse effect on the Certificateholders, or on its
business or on its ability to perform its obligations under this Agreement, the
Pooling and Servicing Agreement, the Sale Agreement, (in the case of the
Transferor) the AIR Support Agreement or (in the case of the Original
Transferors) the AIC Support Agreement;
(f) AIG has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and to conduct its
business as described in the Prospectus and to enter into the AIR Support
Agreement and the AIR Letter Agreement (as defined below). AIG had, in each case
at the relevant time, power and authority (corporate and other) to enter into
the AIC Support Agreement and the AIC Letter Agreement (as defined below). AIG
owns 100% of the outstanding stock of AIC;
(g) The Certificates have been duly authorized, and, when duly
executed and authenticated by the Trustee and issued pursuant to the Pooling and
Servicing 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 AIR, AIC and AICCO and, when executed and delivered by AIR,
AIC, AICCO and the Trustee, will constitute a valid and legally binding
agreement of each of AIR, AIC
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and AICCO, enforceable in accordance with its terms, subject as to enforcement
to the effect of any applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other similar laws affecting creditors' rights
generally and to the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law); the Sale Agreement has
been duly authorized by AIC, AICCO and AIR and, when executed and delivered by
AIC, AICCO and AIR, will constitute a valid and legally binding agreement of
each of AIC, AICCO and AIR, enforceable in accordance with its terms, subject as
to enforcement to the effect of any applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and to the effect of general principles of
equity (regardless of whether considered in a proceeding in equity or at law);
the AIC Support Agreement has been duly authorized, executed and delivered by
AIG, AIC and AICCO and constitutes a valid and legally binding agreement of each
of AIG, AIC and AICCO, enforceable in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other similar laws affecting creditors' rights
generally and to the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law); the Letter Agreement
dated as of December 1, 1994 between AIG and the Trustee (the "AIC Letter
Agreement") has been duly authorized, executed and delivered by AIG and has been
executed and delivered by the Trustee, and constitutes a valid and legally
binding agreement of AIG, enforceable in accordance with its terms, subject as
to enforcement to the effect of any applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and to the effect of general principles of
equity (regardless of whether considered in a proceeding in equity or at law);
the AIR Support Agreement has been duly authorized by AIG and AIR and, when
executed and delivered by AIG and AIR, will constitute a valid and legally
binding agreement of each of AIG and AIR, enforceable in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and to the effect of general principles of
equity (regardless of whether considered in a proceeding in equity or at law);
the Letter Agreement dated as of February [ ], 1998 between AIG and the Trustee
(the "AIR Letter Agreement" and, together with the AIC Letter Agreement, the
"Letter Agreements") has been duly authorized by AIG and when executed and
delivered by AIG and the Trustee, will constitute a valid and legally binding
agreement of AIG, enforceable in accordance with its terms, subject as to
enforcement to the effect of any applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and other similar laws affecting
creditors' rights generally and to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law); and the
Certificates, the Transferor Certificate, the Pooling and Servicing Agreement,
the Sale Agreement, the Support Agreements and the Letter Agreements will
conform to the descriptions thereof in the Prospectus in all material respects;
(h) The issue and sale of the Certificates, the compliance by
the Transferor and the Original Transferors with all of the provisions of the
Certificates, the Pooling and Servicing Agreement, the Sale Agreement and this
Agreement, the compliance by AIG, AIC and AICCO with all of the provisions of
the AIC Support Agreement, the compliance by AIG and AIR with all of the
provisions of the AIR Support Agreement and the compliance by AIG with the
Letter Agreements 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") upon any property or assets of the Transferor or the
Original Transferors pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument
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to which AIG, the Transferor or either of the Original Transferors is a party or
by which any of them is bound or to which any of the property or assets of AIG,
AIC, AICCO or AIR is subject, nor will such action result in any violation of
the provisions of the certificate of incorporation or by-laws of AIG, the
Transferor or either of the Original Transferors or any statute or any order,
rule, decree or regulation of any court or governmental agency or body or
regulatory body having jurisdiction over AIG, AIC, AICCO or AIR or any of their
respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body or regulatory body is required for the issue and sale of the
Certificates, the consummation by the Transferor and the Original Transferors of
the transactions contemplated by this Agreement, the Sale Agreement and the
Pooling and Servicing Agreement, the consummation by AIG, AIC and AICCO of the
transactions contemplated in the AIC Support Agreement, the consummation by AIG
and AIR of the transactions contemplated in the AIR Support Agreement or the
consummation by AIG of the transactions contemplated by the Letter Agreements,
except the filing of Uniform Commercial Code financing statements with respect
to the Receivables, the registration under the Act of the Offered 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 Offered Certificates by the Underwriters; none
of AIG, AIC, AICCO and AIR is in breach or violation of any indenture or other
agreement or instrument to which it is a party or by which it is bound, or in
violation of any applicable statute or regulation or any order of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which would have a material and adverse effect on its ability to
perform its obligations, in the case of AIG, under the Support Agreements and
the Letter Agreements, in the case of AIC, under the AIC Support Agreement, the
Sale Agreement and the Pooling and Servicing Agreement, in the case of AICCO,
under the AIC Support Agreement, the Sale Agreement and the Pooling and
Servicing Agreement, and in the case of AIR, under the AIR Support Agreement,
this Agreement, the Sale Agreement and the Pooling and Servicing Agreement;
(i) There are no proceedings or investigations pending to which
AIC, AICCO, AIR or AIG is a party or of which any property of AIC, AICCO, AIR or
AIG is the subject which is reasonably likely, individually or in the aggregate,
to result in a material adverse effect on the financial position, stockholders'
equity or results of operations of AIG or the Original Transferors and the
Transferor taken as a whole or which, individually or in the aggregate, might
interfere with or adversely affect the issue and sale of the Certificates or the
consummation of the transactions contemplated herein or in the Pooling and
Servicing Agreement, the Sale Agreement, either of the Support Agreements or
either of the Letter Agreements; and, to the best of the Transferor's knowledge
(including based on inquiry to the Original Transferors), no such proceedings
are threatened or contemplated by governmental or regulatory authorities or
threatened by others;
(j) To the best knowledge of AIR (including based on inquiry to
the Original Transferors), Xxxxxxx & Xxxxxxx are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder;
(k) At the Time of Delivery (as specified in Section 4 hereof):
(i) the representations and warranties of the Transferor made in Section 2.03 of
the P&S Agreement shall be true and correct, (ii) the representations and
warranties of the Original Transferors and of the Servicer made in Sections 2.03
and 3.03, respectively, of the P&S Agreement shall be true and correct in all
material respects, (iii) the representations and warranties of the Transferor
and the Original Transferors relating to the P&S Agreement and the Future
Receivables or Existing Receivables, as
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the case may be, made in Section 2.04 of the P&S Agreement shall be true and
correct; provided, however, that the breach of any such representations and
warranties in Section 2.04 of the P&S Agreement shall not be deemed to be a
breach hereunder unless, after opportunity for cure in accordance with Section
2.04(e) of the P&S Agreement, such breach materially adversely affects the
interests of the Certificateholders, and (iv) the representations and warranties
of AIC, AICCO and AIR in the Sale Agreement shall be true and correct;
(l) At the Time of Delivery (i) the Receivables being
transferred to the Trust will be owned by the Transferor free and clear of any
Liens (other than as contemplated in the Pooling and Servicing Agreement); (ii)
none of the Transferor and the Original Transferors will have assigned to any
Person any of its rights, title or interests in the Receivables or related Loans
(other than as contemplated in the Pooling and Servicing Agreement and the Sale
Agreement), the Pooling and Servicing Agreement, the Certificates being issued
pursuant thereto or the Sale Agreement; (iii) the Original Transferors will have
the power and authority to transfer the Future Receivables to the Transferor;
and (iv) the Transferor will have the power and authority to transfer the Future
Receivables to the Trust and to transfer the Offered Certificates to the
Underwriters, and, upon execution and delivery to the Trustee of the Pooling and
Servicing Agreement and upon execution, authentication and delivery to the
Underwriters of the Offered Certificates, the Trust will have all of the
Transferor's and the Original Transferors' right, title and interest to the
Receivables free and clear of any Liens (other than Liens contemplated in
Section 2.05(b) of the P&S Agreement) and the Underwriters will have good and
marketable title to the Offered Certificates, free and clear of any Liens (other
than Liens created by the Underwriters);
(m) Any taxes, fees and other governmental charges imposed upon
the Transferor or either of the Original Transferors or on the assets of the
Trust in connection with (i) the execution and delivery by the Transferor and
the Original Transferors of this Agreement, the Sale Agreement and the Pooling
and Servicing Agreement, the transfer of the Trust Assets to the Transferor or
to the Trust and the execution, delivery and issuance of the Certificates, (ii)
the execution and delivery of the AIR Support Agreement by the parties thereto
and (iii) the execution and delivery of the AIR Letter Agreement by AIG, and
which are due at or prior to the Time of Delivery have been or will have been
paid by the Transferor and the Original Transferors at or prior to the Time of
Delivery;
(n) The Receivables conveyed by the Original Transferors to the
Trust under the Original P&S Agreement have an aggregate outstanding principal
balance (determined as of the close of business on February [ ], 1998) of not
less than $800,000,000;
(o) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust is
not required to be registered as an "investment company" under the Investment
Company Act of 1940, as amended; and
(p) This Agreement has been duly authorized, executed and
delivered by the Transferor.
2. Subject to the terms and conditions herein set forth, the
Transferor agrees to sell and deliver to the Underwriters, and the Underwriters
agree to purchase from the Transferor, (i) at a purchase price of [ ]% of the
principal amount thereof, $[ ] principal amount of the Series 1998-1 Class A
Floating Rate Asset Backed Certificates; and (ii) at a purchase price of [ ]% of
the principal amount thereof, $[ ] principal amount of the Series 1998-1 Class B
Floating Rate Asset Backed Certificates.
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3. [RESERVED]
4. The Offered Certificates to be purchased by the Underwriters
hereunder, in 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 the Transferor, shall be delivered by or on
behalf of the Transferor to the Underwriters against payment by the Underwriters
or on their behalf of the purchase price therefor, in immediately available
funds, drawn to the order of the Transferor, at the offices of Xxxx, Gotshal &
Xxxxxx, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on February [ ], 1998, or at
such other place and time and date as the Underwriters and the Transferor may
agree upon in writing; such time and date being herein called the "Time of
Delivery" for such Offered Certificates. Such Offered Certificates will be made
available for checking at least twenty-four hours prior to the Time of Delivery
at the offices of Weil, Gotshal & Xxxxxx described above.
5. The Transferor 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 not to effect any such amendment or supplement without the
Underwriters' consent; to prepare the Prospectus in a form approved by
the Underwriters 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 430A(a)(3) under the Act; to advise the Underwriters, promptly
after the Transferor 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 the Transferor
receives notice thereof, of: (i) the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus; (ii) the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction or the initiation or threatening of any proceeding for any
such purpose; or (iii) 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, promptly
to use their reasonable best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time, to take such action as the
Underwriters may reasonably request to qualify the Offered 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 Offered Certificates; provided that, in connection
therewith, the Transferor shall not 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,
as amended or supplemented, 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 Offered 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
7
fact necessary in order to make the statements therein, in the 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 such compliance; and in case the
Underwriters are required to deliver a prospectus in connection with the
sale of any of the Offered Certificates at any time nine months or more
after the date of issue of the Prospectus, upon the Underwriters'
request and at their expense, 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) During the period beginning from the date hereof and
continuing to and including the later of (i) the termination of trading
restrictions on the Offered Certificates, as notified to the Transferor
by the Underwriters, and (ii) the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any securities which mature
more than one year after the Time of Delivery and which are
substantially similar to the Offered Certificates, without the
Underwriters' prior written consent;
(e) So long as any Offered 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 to deliver or cause to be delivered to the
Underwriters, as soon as they are available, copies of any reports and
financial statements furnished to or filed by the Transferor or either
of the Original Transferors or the Trustee with the Commission, or with
any national securities exchange on which the Offered Certificates or
any class of securities of the Transferor or either of the Original
Transferors are listed; and
(f) So long as any Offered 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.
6. The Transferor covenants and agrees with the Underwriters
that the Transferor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the counsel and accountants of the Transferor and
the Original Transferors in connection with the registration of the Offered
Certificates under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and amendments and supplements thereto and the
mailing and delivery of copies thereof to the Underwriters and dealers; (ii) the
cost of printing or producing this Agreement, the Pooling and Servicing
Agreement, the Sale Agreement, the AIR Support Agreement, the AIR Letter
Agreement, the Blue Sky and legal investment memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Offered
Certificates; (iii) all expenses in connection with the qualification of the
Offered 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 Offered 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 the
obligations of
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the Transferor hereunder which are not otherwise specifically provided for in
this Section 6. It is understood, however, that, except as provided in this
Section 6, Section 8 and Section 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Offered Certificates by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Transferor herein are, at and as of the
Time of Delivery, true and correct, the condition that the Transferor shall have
performed all of its obligations in all material respects 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 of the Commission under the Act
and in accordance with Section 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 the Transferor, the Original
Transferors 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 Underwriters' reasonable satisfaction;
(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 known to the Transferor or either of the
Original Transferors that could reasonably be expected to result in a
material adverse change, in or affecting the business, management,
financial position, stockholders' equity or results of operations of the
Transferor or the Original Transferors taken as a whole, 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 Offered Certificates on the
terms and in the manner contemplated in the Registration Statement;
(c) At the Time of Delivery, the Transferor shall have furnished
to the Underwriters a certificate signed by an executive officer thereof
as to (i) the accuracy of the representations and warranties of the
Transferor set forth herein at and as of the Time of Delivery; (ii) the
performance by the Transferor of all of its obligations hereunder to be
performed at or prior to such Time of Delivery in all material respects;
and (iii) the matters set forth in subsections (a), (b) and (n) of this
Section;
(d) Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, 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 Offered Certificates, the
Registration Statement, the Prospectus, and other related matters as the
Underwriters may reasonably request and such counsel shall have received
from the Transferors and their counsel such papers and information as it
may reasonably request from the Transferors and their counsel to enable
it to pass upon such matters;
(e) Xxxx, Xxxxxxx & Xxxxxx, counsel for the Transferor and the
Original Transferors, shall have furnished to the Underwriters their
written opinion, addressed to the Underwriters and dated the Time of
Delivery, in form and substance reasonably satisfactory to the
Underwriters and their counsel, substantially to the effect that:
9
(i) The Underwriting Agreement has been duly
authorized, executed and delivered by the Transferor;
(ii) The Certificates have been duly authorized
by the Transferor and, when duly executed, authenticated and
delivered in accordance with the terms of the Pooling and
Servicing Agreement, will be validly issued and entitled to the
benefits provided by the Pooling and Servicing Agreement; and
the Certificates, the Transferor Certificate, the Pooling and
Servicing Agreement, the Sale Agreement, the Support Agreements
and the Letter Agreements conform in all material respects to
the descriptions thereof in the Prospectus;
(iii) Each of the Pooling and Servicing
Agreement, the Sale Agreement and (in the case of the
Transferor) the AIR Support Agreement has been duly authorized,
executed and delivered by each of the Transferor and the
Original Transferors and each of the Pooling and Servicing
Agreement, the Sale Agreement and (in the case of the Transferor
or the Original Transferors, as applicable) the Support
Agreements constitutes the legal, valid and binding agreement of
each of the Transferor and the Original Transferors enforceable
against each of the Transferor and the Original Transferors in
accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other similar laws affecting
creditors' rights generally, and to the effect of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law);
(iv) The Pooling and Servicing Agreement need
not be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered as an
"investment company" under the Investment Company Act of 1940,
as amended;
(v) No consent, approval, authorization, order,
registration or qualification of or with any Federal, New York
or California governmental or regulatory agency or body is
required for the issue or sale of the Certificates or the
consummation by the Transferor and the Original Transferors of
the transactions contemplated by the Underwriting Agreement, the
Pooling and Servicing Agreement, the Sale Agreement, or the
Support Agreements 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
Offered Certificates by the Underwriters;
(vi) The statements in the Prospectus under the
heading "Prospectus Summary -- ERISA Plans," to the extent that
they constitute statements of matters of law or legal
conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects;
(vii) The issuance of the Certificates and the
sale of the Certificates by the Transferor to the Underwriters
pursuant to the Underwriting Agreement do not, and the
performance by the Transferor and the Original Transferors of
their respective obligations under the Pooling and Servicing
Agreement, the Sale Agreement, the Underwriting Agreement, the
Certificates and the Support Agreements to which each is party
will not, violate (i) any Federal law of the United States or
law of the State of New York or the State
10
of California applicable to the Transferor or either of the
Original Transferors or (ii) any rule or regulation adopted by
any United States Federal, New York State or California
governmental agency or officially constituted regulatory body
applicable to the Transferor or either of the Original
Transferors; provided, however, that such counsel need express
no opinion with respect to Federal or state securities laws,
other antifraud laws, fraudulent transfer laws and state premium
finance agency licensing laws, and insofar as performance by the
Transferor and each of the Original Transferors of their
obligations under the Pooling and Servicing Agreement and the
Sale Agreement is concerned, such counsel need express no
opinion as to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights or any indemnification provisions
set forth therein that might be unenforceable as a matter of
public policy;
(viii) 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; and
(ix) The Registration Statement and the
Prospectus, as of the effective date of the Registration
Statement, appeared on their face to be appropriately responsive
in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder;
nothing that came to such counsel's attention in the course of
their review of the Registration Statement and Prospectus has
caused such counsel to believe that the Registration Statement,
as of its effective date, 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, as of the date of the
Prospectus, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and nothing that has come
to such counsel's attention in the course of the limited
procedures described in such letter has caused them to believe
that the Prospectus, as of the Time of Delivery, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading; further, such counsel does not know of any
documents that are required to be filed as exhibits to the
Registration Statement and are not so filed or of any documents
that are required to be summarized in the Prospectus and are not
so summarized. Such counsel may state that they do not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus (except as set forth in paragraph (vi) above or
subsection (f) below) and that they do not express any opinion
or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the
State of California or the United States, to the extent they deem proper and
specify in such opinion, upon the opinion of other counsel admitted to practice
in such jurisdiction who are reasonably satisfactory to the Underwriters and (B)
as to matters of fact, to the extent they deem proper, upon certificates of
responsible officers of the
11
Transferor and the Original Transferors and public officials;
(f) [Weil, Gotshal & Xxxxxx, as tax counsel for the Transferor
and the Original Transferors, shall have furnished to the Underwriters
its opinion or opinions, dated the Time of Delivery and satisfactory in
form and substance to the Underwriters and their counsel, to the effect
that for Federal, New York State, New York City and California income
and franchise tax purposes the Certificates will be characterized as
indebtedness and that the Trust will not be treated as a taxable entity
for Federal, New York State, New York City or California income and
franchise tax purposes, and the statements set forth in the Prospectus
under the headings "Prospectus Summary -- Tax Status," "Certain United
States Federal Income Tax Consequences" and "Certain State And Local Tax
Consequences" are a fair and accurate summary of the material tax
consequences of the issuance and holding of the Offered Certificates];
(g) Xxxxxxx X. Xxxxxxx, Associate General Counsel for AIG, 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) AIG (A) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, (B) had, in each case
at the relevant time, power and authority (corporate and other)
to enter into the AIC Support Agreement and the AIC Letter
Agreement and (C) has power and authority (corporate and other)
to enter into the AIR Support Agreement and the AIR Letter
Agreement and to perform its obligations thereunder and under
the AIC Support Agreement and the AIC Letter Agreement;
(ii) Each of the Support Agreements has been
duly authorized, executed and delivered by AIG and constitutes
the legal, valid and binding agreement of AIG enforceable in
accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other similar laws affecting
creditors' rights generally, and to the effect of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law);
(iii) Each of the Letter Agreements has been
duly authorized, executed and delivered by AIG and constitutes
the legal, valid and binding agreement of AIG enforceable in
accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other similar laws affecting
creditors' rights generally, and to the effect of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law);
(iv) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending to which
AIG or any of its subsidiaries is a party or of which any
property of AIG or any of its subsidiaries is the subject which
is reasonably likely individually or in the aggregate to result
in a material adverse effect on the consummation of the
transactions as contemplated by, the validity or enforceability
of, or the ability of AIG to perform its obligations under,
either of the Support Agreements or either of the Letter
Agreements;
12
(v) The compliance by AIG with all of the
provisions of each of Support Agreements and each of the Letter
Agreements and the consummation of the transactions 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, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which AIG is a party or by which AIG is bound or
to which any of the property or assets of AIG is subject, nor
will such actions result in any violation of the provisions of
the by-laws or certificate of incorporation of AIG, any Federal
or New York statute applicable to AIG or any of its properties
or any order, rule, decree or regulation of any Federal or New
York court, governmental agency or body or regulatory body
having jurisdiction over AIG or any of its properties;
(vi) No consent, approval, authorization,
order, registration or qualification of or with any Federal or
New York governmental or regulatory agency or body is required
for the entry by AIG into the AIR Support Agreement or the AIR
Letter Agreement or for the performance of its obligations
thereunder or under the AIC Support Agreement or the AIC Letter
Agreement, except that, to the extent that AIG is required to
satisfy any of its obligations through the sale of insurance
assets, such sale may require the consent of regulatory
authorities;
(vii) AIC (A) has been duly incorporated and is
validly existing as a New Hampshire corporation in good standing
under the laws of the State of New Hampshire, with the corporate
power and authority to own its properties and to conduct its
business as described in the Prospectus, (B) had, at the
relevant time, corporate power and authority to enter into the
AIC Support Agreement and (C) has corporate power and authority
to enter into the Pooling and Servicing Agreement and the Sale
Agreement and to perform its obligations thereunder and under
the AIC Support Agreement;
(viii) There are no legal or governmental
proceedings or investigations pending to which AIC is a party or
of which any property of AIC is the subject, or, to the best of
such counsel's knowledge threatened against AIC, which, if
determined adversely to AIC, would individually or in the
aggregate have a material adverse effect on the financial
position or results of operation of AIC or on the issue and sale
of the Certificates or the consummation of the transactions as
contemplated by, the validity or enforceability of, or the
ability of AIC to perform its obligations under the Pooling and
Servicing Agreement, the Sale Agreement or the AIC Support
Agreement;
(ix) The Sale Agreement, the Pooling and
Servicing Agreement and the AIC Support Agreement have been duly
authorized, executed and delivered by AIC;
(x) The issue and sale of the Certificates and
the compliance by AIC with all of the provisions of the
Certificates, the Pooling and Servicing Agreement, the Sale
Agreement and the AIC Support Agreement and the consummation of
the transactions therein contemplated will not, to the knowledge
of such counsel, 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 Liens upon any
property or assets of AIC pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which AIC is a party or by which AIC is bound, or
to which any of the
13
property or assets of AIC is subject, nor will such actions
result in any violation of the provisions of the by-laws or
certificate of incorporation of AIC or of any order or decree of
any court, governmental agency or body or regulatory body
applicable to or having jurisdiction over AIC or any of its
properties;
(xi) AICCO (A) has been duly incorporated and
is validly existing as a California corporation in good standing
under the laws of the State of California, with the corporate
power and authority to own its properties and to conduct its
business as described in the Prospectus, (B) had, at the
relevant time, corporate power and authority to enter into the
AIC Support Agreement and (C) has corporate power and authority
to enter into the Pooling and Servicing Agreement and the Sale
Agreement and to perform its obligations thereunder and under
the AIC Support Agreement;
(xii) There are no legal or governmental
proceedings or investigations pending to which AICCO is a party
or of which any property of AICCO is the subject, or, to the
best of such counsel's knowledge, threatened against AICCO,
which, if determined adversely to AICCO, would individually or
in the aggregate have a material adverse effect on the financial
position or results of operation of AICCO or on the issue and
sale of the Certificates or the consummation of the transactions
as contemplated by, the validity or enforceability of, or the
ability of AICCO to perform its obligations under the Pooling
and Servicing Agreement, the Sale Agreement or the AIC Support
Agreement;
(xiii) The Sale Agreement, the Pooling and
Servicing Agreement and the AIC Support Agreement have been duly
authorized, executed and delivered by AICCO;
(xiv) The issue and sale of the Certificates
and the compliance by AICCO with all of the provisions of the
Certificates, the Pooling and Servicing Agreement, the Sale
Agreement and the AIC Support Agreement and the consummation of
the transactions therein contemplated will not, to the knowledge
of such counsel, 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 Liens upon any
property or assets of AICCO pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which AICCO is a party or by which
AICCO is bound, or to which any of the property or assets of
AICCO is subject, nor will such actions result in any violation
of the provisions of the by-laws or certificate of incorporation
of AICCO or of any order or decree of any court, governmental
agency or body or regulatory body applicable to or having
jurisdiction over AICCO or any of its properties;
(xv) AIR has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to enter
into and perform its obligations under the Underwriting
Agreement, the Pooling and Servicing Agreement, the Sale
Agreement and the AIR Support Agreement;
(xvi) There are no legal or governmental
proceedings or investigations pending to which AIR is a party or
of which any property of AIR is the subject, or, to the best of
such counsel's knowledge threatened against AIR, which, if
determined adversely to AIR, would individually or in the
aggregate have a material adverse effect on the financial
position or results of operation of AIR or on the issue and sale
of the Certificates
14
or the consummation of the transactions as contemplated by, the
validity or enforceability of, or the ability of AIR to perform
its obligations under the Underwriting Agreement, the Pooling
and Servicing Agreement, the Sale Agreement or the AIR Support
Agreement;
(xvii) The Underwriting Agreement, the Pooling
and Servicing Agreement, the Sale Agreement and the AIR Support
Agreement have been duly authorized, executed and delivered by
AIR; and
(xviii) The issue and sale of the Certificates
and the compliance by AIR with all of the provisions of the
Certificates, the Pooling and Servicing Agreement, the Sale
Agreement, the AIR Support Agreement and the Underwriting
Agreement and the consummation of the transactions therein
contemplated will not, to the knowledge of such counsel,
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 Liens upon any property or assets of AIR
pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which AIR
is a party or by which AIR is bound, or to which any of the
property or assets of AIR is subject, nor will such actions
result in any violation of the provisions of the by-laws or
certificate of incorporation of AIR or of any order or decree of
any court, governmental agency or body or regulatory body
applicable to or having jurisdiction over AIR or any of its
properties.
(h) 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, Coopers &
Xxxxxxx shall have furnished to the Underwriters letters, dated the
respective dates of delivery thereof, in form and substance reasonably
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 certain
financial information contained in the Registration Statement and the
Prospectus;
(i) The Law Department of the First National Bank of Chicago,
counsel for the Trustee, shall have furnished to the Underwriters its
written opinion, addressed to the Underwriters and dated the Time of
Delivery, in form and substance reasonably satisfactory to the
Underwriters and their counsel, substantially to the effect that:
(i) The Trustee is a national banking
association duly organized and validly existing and in good
standing under the laws of the United States, with power and
authority (corporate and other) to own its properties;
(ii) The Trustee has full power and authority
to execute and deliver the Pooling and Servicing Agreement and
the AIR Letter Agreement, to act as Trustee thereunder and to
conduct its trust business as presently conducted by it;
(iii) The Trustee has duly authorized, executed
and delivered the Pooling and Servicing Agreement and accepted
its appointment as trustee thereunder, and, assuming the due
execution and delivery by the Transferor, the Original
Transferors and the Servicer of the Pooling and Servicing
Agreement and that the Pooling and Servicing Agreement
constitutes the legal, valid and binding obligation of the other
parties thereto, the Pooling and Servicing Agreement constitutes
the legal, valid and binding agreement of
15
the Trustee, enforceable against the Trustee in accordance with
its terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforceability of creditors' rights generally, and
to the effect of general principles of equity (regardless of
whether considered in a proceeding at law or in equity);
(iv) The Trustee has duly authorized, executed
and delivered the AIR Letter Agreement and, assuming the due
execution and delivery by AIG of the AIR Letter Agreement, such
agreement constitutes the legal, valid and binding agreement of
the Trustee enforceable in accordance with its terms, subject to
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforceability of creditors' rights generally, and to the effect
of general principles of equity (regardless of whether
considered in a proceeding at law or in equity);
(v) The Certificates have been duly executed,
authenticated and delivered by the Trustee pursuant to the
Pooling and Servicing Agreement;
(vi) No consent, approval, order or
authorization of, or declaration or filing with, any court or
governmental or regulatory agency or body of the United States
of America or the State of Illinois relating to 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 and the AIR Letter Agreement or the
performance by the Trustee thereunder;
(vii) There are no proceedings or
investigations pending or, to the best knowledge of such
counsel, threatened, against or affecting the Trustee which, if
determined adversely to the Trustee, would individually or in
the aggregate affect the ability of the Trustee to carry out the
transactions contemplated in the Pooling and Servicing Agreement
and the AIR Letter Agreement;
(viii) The execution and delivery by the
Trustee of the Pooling and Servicing Agreement and the AIR
Letter Agreement and the performance by the Trustee of their
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 the banking or trust powers of the Trustee
or (B) the articles of association or by-laws of the Trustee;
and
(ix) The Trustee has duly accepted appointment
as trustee under the Pooling and Servicing Agreement and, as of
the Time of Delivery, the Pooling and Servicing Agreement is in
full force and effect with respect to the Trustee; and the
Trustee meets all the requirements set forth in Section 11.06 of
the Pooling and Servicing Agreement and has full power and
authority to fulfill the obligations of the Trustee contemplated
by and described in the Pooling and Servicing Agreement and in
the AIR Letter Agreement;
(j) The Underwriters shall have received evidence satisfactory
to them that the Class A Certificates have been rated AAA by Standard &
Poor's Ratings Group ("Standard & Poor's") and Aaa by Xxxxx'x Investors
Service, Inc. ("Moody's") and that the Class B Certificates have been
rated A by Standard & Poor's and A2 by Moody's and neither Standard &
Poor's nor Moody's shall
16
have rescinded, lowered or placed under surveillance or review such
ratings;
(k) 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 Delaware, New York or
California declared by relevant 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 war, if the effect of
any such event specified in clause (iii) in the judgment of the
Underwriters makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Certificates on the terms
and in the manner contemplated by this Agreement and in the Prospectus
or materially and adversely affects the market for the Offered
Certificates;
(l) The Underwriters shall have received evidence satisfactory
to them that, on or before the Time of Delivery, appropriate UCC
financing statement forms have been filed in the appropriate filing
offices of the States of New York and California and such other
jurisdictions as counsel to the Underwriters deems appropriate;
(m) 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 the Transferor and the Original Transferors which
have been addressed to or supplied to each Rating Agency rating the
Certificates concerning, among other things, the interest of the Trust
in the Receivables and collections due or to become due with respect
thereto. Any such opinions or memoranda shall be dated the Time of
Delivery and shall be addressed to the Underwriters or shall indicate
that the Underwriters may rely on such opinions or memoranda as though
such opinions or memoranda were addressed to the Underwriters
themselves;
(n) 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;
(o) The Trustee shall have confirmed to the Underwriters (by
providing copies thereof to the Underwriters) that it has received the
Tax Opinion, the written confirmation from each Rating Agency and the
Officer's Certificate required under Section 6.09(b) of the P&S
Agreement in connection with the issuance of the Offered Certificates;
(p) The Trustee shall have confirmed to the Underwriters (by
providing a copy thereof to the Underwriters) that it has received the
Opinion of Counsel required under Section 13.01(a) of the Original P&S
Agreement in connection with the amendments to the Original P&S
Agreement and the Series 1994-1 Supplement thereto entered into as of
the date hereof by the parties thereto.
(q) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto and
thereto, including all legal opinions, shall be reasonably satisfactory
in form and substance to the Underwriters and their counsel, and the
Underwriters and their counsel shall have received such information,
certificates or documents as they or their counsel may reasonably
request.
8. (a) The Transferor will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities to which the
Underwriters may become subject, under the Act or otherwise,
17
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 Preliminary Prospectus No. 1, the
Registration Statement or the Prospectus and any other prospectus relating to
the Offered Certificates, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will 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 the Transferor shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in Preliminary Prospectus No. 1, the Registration
Statement, the Prospectus or any other prospectus relating to the Offered
Certificates or any such amendment or supplement in reliance upon and in
conformity with written information furnished to AIR by the Underwriters
expressly for use therein;
(b) The Underwriters will indemnify and hold harmless the
Transferor against any losses, claims, damages or liabilities to which the
Transferor 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 Preliminary Prospectus No. 1, the Registration
Statement, the Prospectus and any other prospectus relating to the Offered
Certificates, 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 Preliminary Prospectus No. 1, the Prospectus and any other prospectus
relating to the Offered Certificates or any such amendment or supplement in
reliance upon and in conformity with written information furnished to AIR by the
Underwriters expressly for use therein; and will reimburse the Transferor for
any legal or other expenses reasonably incurred by the Transferor 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. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement
18
as to or an admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable 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 the Transferor on the one hand and the
Underwriters on the other from the offering of the Offered Certificates to which
such loss, claim, damage or liability (or action in respect thereof) relates.
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
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Transferor 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 the 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 such offering
(before deducting expenses) received by the 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 or
on behalf of the Transferor on the one hand or by the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Transferor 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 underwriting discounts and commissions received by the
Underwriters for the Offered Certificates underwritten by them and distributed
to the public exceeds the amount of any damages which the Underwriters have
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 the Transferor under this Section 8 shall
be in addition to any liability which the Transferor 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 Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Transferor and to each
person, if any, who controls the Transferor within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Transferor 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
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controlling person of the Underwriters, or the Transferor or any officer,
director or controlling person of the Transferor, and shall survive delivery of
and payment for the Offered Certificates.
10. If Offered Certificates are not delivered by or on behalf of
the Transferor as provided herein due to (i) a default by the Transferor or (ii)
failure by the appropriate party to fulfill any of the conditions precedent
listed herein under Section 7, except for those contained in subsections (d) and
(k) thereof, the Transferor will reimburse the Underwriters for all
out-of-pocket expenses approved in writing by the Underwriters, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Offered Certificates,
but the Transferor shall then be under no further liability to the Underwriters
except as provided in Section 6 and Section 8 hereof.
11. All statements, requests, notices and communications
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxxx, Xxxxx & Co., at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if
to AIR shall be delivered or sent by mail, telex or facsimile transmission to
000 Xxxxx Xxxxxx, Xxx Xxxx 00000, Attention: President, with a copy to AIG,
Attention: General Counsel, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10270. Any such
statements, requests, notices or communications shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Transferor and, to the extent provided in
Section 8 and Section 9 hereof, the officers and directors of the Transferor and
each person who controls the Transferor 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 Offered Certificates from the Underwriters
shall be deemed a successor or assign by reason merely of such purchase. No
right or duty under this Agreement may be assigned or delegated by the
Transferor without the prior written consent of the Underwriters and any such
assignment or delegation made without such consent shall be null and void for
all purposes.
13. Time shall be of the essence of 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.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. 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.
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If the foregoing is in accordance with the Underwriters'
understanding, the Underwriters shall sign and return three counterparts hereof,
and upon the acceptance hereof by the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between the Transferor
and the Underwriters.
A.I. RECEIVABLES CORP.
By: _______________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.,
As Underwriters
By: _______________________________
Name:
Title:
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