Exhibit 1.2
$20,000,000
MELLON BANK PREMIUM FINANCE LOAN MASTER TRUST
CLASS B FLOATING RATE ASSET BACKED
CERTIFICATES, SERIES 2001-1
CLASS B UNDERWRITING AGREEMENT
June 1, 2001
DEUTSCHE BANC ALEX. XXXXX INC.
as Representative of the
Several Underwriters
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. AFCO Credit Corporation, a New York
corporation ("AFCO CREDIT"), and AFCO Acceptance Corporation, a California
corporation ("AFCO Acceptance" and together with AFCO Credit, the "ORIGINATORS"
and in their capacity as servicer, the "SERVICER") have in the past and propose
to continue in the future to convey commercial insurance premium finance loans
(the "RECEIVABLES") from time to time to Mellon Bank, N.A., a national banking
association organized under the laws of the United States of America (the
"SELLER"), who then proposes to convey such Receivables to the Mellon Premium
Finance Loan Owner Trust (the "TRANSFEROR"). The Transferor proposes to convey
such Receivables to the Mellon Bank Premium Finance Loan Master Trust (the
"TRUST"), and proposes to cause the Trust to issue and sell to the Underwriters
named in Schedule I hereto (the "UNDERWRITERS"), for whom you are acting as
representative (the "REPRESENTATIVE"), $20,000,000 aggregate initial principal
amount of its Class B Floating Rate Asset Backed Certificates, Series 2001-1
(the "CLASS B CERTIFICATES"), the terms of which are described in the Prospectus
(as defined below). It is understood that Seller and the Transferor are
currently entering into a Class A Underwriting Agreement, dated the date hereof
(the "CLASS A UNDERWRITING AGREEMENT") among the Seller, the Transferor and the
Underwriters named on Schedule I thereto (the "CLASS A UNDERWRITERS") providing
for the sale of $450,000,000 aggregate initial principal amount of the Trust's
Class A Floating Rate Asset Backed Certificates, Series 2001-1 (the "CLASS A
CERTIFICATES"). The Class B Certificates and the Class A Certificates are
referred to herein collectively as the "CERTIFICATES." This Agreement and the
Class A Underwriting Agreement are referred to herein collectively as the
"UNDERWRITING AGREEMENTS."
The Trust was originally formed pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 1996 (the "ORIGINAL P&S"), among the Seller,
as transferor, AFCO Credit, as servicer, AFCO Acceptance, as servicer, Premium
Financing Specialists, Inc., a Missouri corporation ("PFSI"), as back-up
servicer and Premium Financing Specialists of California, Inc., a California
corporation ("PFSIC"), as back-up servicer, and The First National Bank of
Chicago, as Trustee (the "ORIGINAL TRUSTEE"). Pursuant to the Series 1996-1
Supplement (the "1996-1 SUPPLEMENT"), dated as of December 1, 1996, among the
Seller, the Servicer, PFSI, PFSIC, and the Original Trustee, the Trust issued
its Series 1996-1, Class A and Class B Certificates, in the initial aggregate
principal amount of $465,000,000 (collectively, the "1996-1 CERTIFICATES").
Certain of the Receivables were originally transferred to the Trust pursuant to
the Receivables Purchase Agreement, dated as of December 1, 1996, among the
Seller and the Originators (the "ORIGINAL RECEIVABLES PURCHASE AGREEMENT").
The proceeds received by the Trust in connection with the issuance and
sale of the Certificates will be used to redeem and retire the 1996-1
Certificates in full and to purchase additional Receivables. In connection
therewith, Receivables will be conveyed by the Originators to the Seller, both
on the date of issuance of the Certificates and from time to time in the future,
pursuant to the First Tier Receivables Purchase Agreement (which amends and
restates the Original Receivables Purchase Agreement in its entirety), dated as
of June 15, 2001 (the "FIRST TIER RECEIVABLES PURCHASE AGREEMENT") between the
Originators and the Seller. All such Receivables then will be conveyed by the
Seller to the Transferor pursuant to the Second Tier Receivables Purchase
Agreement dated as of June 15, 2001 (the "SECOND TIER RECEIVABLES PURCHASE
AGREEMENT") between the Seller and the Transferor. The Receivables will be
conveyed by the Transferor to the Trust in exchange for the Certificates
pursuant to an Amended and Restated Pooling and Servicing Agreement (which
amends and restates the Original P&S in its entirety), dated as of June 15, 2001
(the "P&S"), among the Transferor, as transferor, AFCO Credit, as servicer, AFCO
Acceptance, as servicer, PFSI, as back-up servicer, PFSIC, as back-up servicer
(PFSI and PFSIC are collectively referred to as the "BACK-UP SERVICER"), and
Xxxxx Fargo Bank Minnesota, a national banking association, as trustee (the
"TRUSTEE"). The Certificates will then be issued pursuant to the Series 2001-1
Supplement, dated as of June 15, 2001, among the Transferor, the Servicer, the
Back-up Servicer and the Trustee (the "SERIES SUPPLEMENT" and together with the
P&S, the "POOLING AND SERVICING AGREEMENT"). In addition, the Transferor, the
Servicer, the Trustee, the Seller, the CA Investor named therein (the
"Collateral Interest Holder") and Bayerische Hypo- und Vereinsbank AG, New York
Branch, as agent (the "AGENT") will enter into a Loan Agreement (the "LOAN
AGREEMENT") to be dated as of the Closing Date (as defined below) pursuant to
which the Collateral Interest Holder will acquire $30,000,000 aggregate initial
principal amount of the Collateral Interest (the "COLLATERAL INTEREST"), which
will act as Credit Enhancement for the Certificates. The Trust may, from time to
time, enter into additional series supplements and issue other classes of
certificates on such terms and with such rights in the Receivables as are not
inconsistent with the rights and remedies of holders of the Certificates.
The Transferor was formed pursuant to the Trust Agreement, dated as of
May 23, 2001, as amended and restated as of June 15, 2001 (collectively, the
"TRUST AGREEMENT"), each between the Seller, as depositor, and Chase Manhattan
Bank USA, National Association, as owner trustee (the "OWNER TRUSTEE"). Pursuant
to the Trust Agreement, the Seller transferred to the Transferor all of its
right, title and interest in and to the undivided interest in the Trust not
represented by the Certificates, or other interests issued by the Trust from
time to time, originally created under the Original P&S (the "Transferor
Interest"). The Seller is the sole owner of the Transferor.
Capitalized terms used herein (including in the Introductory hereto)
that are not otherwise defined shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
TRANSFEROr. (a) The Seller and the Transferor (and together with the Trust
collectively referred to as the "REGISTRANTS") each represents and warrants,
severally and jointly, to, and agrees with, each Underwriter as set forth in
this Section 2. Certain terms used in this Section 2 are defined in paragraph
(i) below.
(i) Each of the Registrants meets the requirements for use of
ForM S-1 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the "SECURITIES
ACT") and have filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (Registration No. 333-53250)
including a related preliminary prospectus, on such Form for the
registration under the Securities Act, of the Certificates. The
Registrants may have filed one or more amendments thereto, including
the related preliminary prospectus, each of which has previously been
furnished to the Representative. The Registrants will next file with
the Commission (A) prior to the effectiveness of such registration
statement, a further amendment thereto (including the form of final
prospectus relating to the Class B Certificates) or (B) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b) under the Securities Act. In the
case of clause (B), the Registrants have included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Securities Act and the
rules thereunder to be included in the Prospectus with respect to the
Class B Certificates and the offering thereof. As filed, such
amendment and form of final prospectus shall include all Rule 430A
Information, together with all other such required information, with
respect to the Class B Certificates and the offering thereof and,
except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Representative prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest preliminary prospectus which has previously
been furnished to the Representative) as the Registrants have advised
the Representative, prior to the Execution Time, will be included or
made therein. If the Registration Statement contains the undertakings
specified by item 512(a) of Regulation S-K, the Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
The terms that follow, when used in this Agreement, have the
meanings indicated. The term "EFFECTIVE DATE" means each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "EXECUTION TIME" means the date
and time that this Agreement is executed and delivered by the parties
hereto. "PRELIMINARY PROSPECTUS" means any preliminary prospectus
referred to in the preceding paragraph and any preliminary prospectus
included in the Registration Statement which, at the Effective Date,
omits Rule 430A Information. "PROSPECTUS" means the form of prospectus
relating to the Class B Certificates that is first filed with the
Commission pursuant to Rule 424(b) or, if no filing pursuant to Rule
424(b) is required, means the prospectus relating to the Class B
Certificates included in the Registration Statement at the Effective
Date. "REGISTRATION STATEMENT" means the registration statement
referred to in the preceding paragraph and any registration statement
required to be filed under the Securities Act or rules thereunder,
including incorporated documents, exhibits and financial statements,
in the form in which it has or shall become effective and, in the
event any post-effective amendment thereto becomes effective prior to
the Closing Date, shall also mean such registration statement as so
amended. Such term shall include Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "RULE
424," "RULE 430A," "RULE 415" and "REGULATION S-K" refer to such rules
or regulations under the Securities Act. "RULE 430A INFORMATION" means
information with respect to the Class B Certificates and the offering
thereof permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-1 which were filed under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), on or before
the Effective Date of the Registration Statement or the issue date of
the Prospectus, as the case may be; and any reference herein to the
terms "AMEND," "AMENDMENT" or "SUPPLEMENT" with respect to the
Registration Statement or Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(ii) On the Effective Date, the Registration Statement did or
will comply in all material respects with the applicable requirements
of the Securities Act and the rules thereunder; on the Effective Date
and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (as amended
and together with any supplements thereto) did or will comply in all
material respects with the applicable requirements of the Securities
Act and the rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(as amended and together with any supplements thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Registrants make no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplements thereto)
in reliance upon and in conformity with information furnished in
writing to the Registrants by any Underwriter specifically for use in
connection with the preparation of the Registration Statement or the
Prospectus (or any supplements thereto). The Registrants each hereby
agrees with the Underwriters that, for all purposes of this Agreement,
the only information furnished to the Registrants by the Underwriters
through the Representative specifically for use in the Registration
Statement, the Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, are: the first sentence of the last
paragraph at the bottom of the cover page of the Prospectus, the third
to last sentence under the heading "RISK FACTORS--THE ABSENCE OF A
SECONDARY MARKET FOR THE CERTIFICATES COULD LIMIT YOUR ABILITY TO
RESELL THE CERTIFICATES," and the concession and reallowance figures
appearing in the third and fourth paragraphs under the caption
"UNDERWRITING" in the Prospectus; (collectively, the "UNDERWRITER
INFORMATION").
(iii) The Transferor is a Delaware business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. Codess.3801 et seq., as
it may be amended from time to time, and is validly existing and in
good standing under the laws of the State of Delaware, and the Seller
is a national banking association, organized and is validly existing
under the laws of the United States of America, and each of the
Registrants has all requisite corporate or trust, as applicable,
power, authority and legal right to own its respective properties and
conduct its respective business as described in the Registration
Statement and the Prospectus and to execute, deliver and perform the
transactions contemplated by the Underwriting Agreements, the Pooling
and Servicing Agreement, the First Tier Receivables Purchase
Agreement, the Second Tier Receivables Purchase Agreement and the Loan
Agreement (collectively the "SPECIFIED AGREEMENTS"), to which each is
a party, and to authorize the authentication, execution and issuance
of the Certificates and the issuance of the Collateral Interest.
(iv) The Seller and the Transferor are each duly qualified to do
business and in good standing (or is exempt from such requirement) in
any state required in order to conduct its respective business, and
each has obtained all necessary licenses and approvals required under
Federal and Delaware law with respect to the Transferor, and required
under Federal or Pennsylvania law with respect to the Seller, except
where failure to obtain such qualification or such license would not
materially adversely affect the conduct of its business.
(v) The execution, delivery and performance by the Transferor and
Seller of the Specified Agreements to which each is a party, the
issuance of the Certificates and the Collateral Interest and the
consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary action or
proceedings.
(vi) The Seller has duly and validly authorized the conveyance of
the Receivables to the Transferor, and the Transferor has duly and
validly authorized the conveyance of the Receivables to the Trust.
(vii) The execution, delivery and performance by the Seller and
the Transferor of the Specified Agreements to which each is a party,
the issuance of the Certificates and the Collateral Interest and the
fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, or (other than the Lien of the Pooling and Servicing Agreement)
result in the creation or imposition of any Lien under any material
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which Seller or the Transferor is a party or by which
either of them or any of their respective properties are bound.
(viii) The execution, delivery and performance by the Seller and
the Transferor of the Specified Agreements to which each is a party,
the issuance of the Certificates and the Collateral Interest and the
fulfillment of the terms hereof and thereof, will not conflict with or
violate any Requirements of Law applicable to the Seller or the
Transferor, respectively.
(ix) There are no proceedings or investigations pending or, to
the best knowledge of the Seller or the Transferor, threatened against
the Seller or the Transferor, as applicable before any court,
regulatory body, administrative agency, arbitrator or other tribunal
or governmental instrumentality (A) asserting the invalidity of any
Specified Agreement to which each is a party or the Certificates or
the Collateral Interest, (B) seeking to prevent the issuance of the
Certificates or the Collateral Interest or the consummation of any of
the transactions contemplated by the Specified Agreements to which
each is a party, (C) seeking any determination or ruling that, in the
reasonable judgment of the Seller or the Transferor, as the case may
be, would materially and adversely affect the performance by the
Seller or the Transferor, as applicable, of its respective obligations
under any Specified Agreement to which each is a party, (D) seeking
any determination or ruling that would materially and adversely affect
the validity or enforceability of any Specified Agreements to which
each is a party or the Certificates or the Collateral Interest, or (E)
seeking to affect adversely the income tax attributes of the Trust, as
described in the Prospectus under the heading "U.S. FEDERAL INCOME TAX
CONSEQUENCES"; and there are no contracts or documents of the Seller
or the Transferor, as applicable, that are required to be filed as
exhibits to the Registration Statement by the Securities Act or by the
rules and regulations of the Commissioner promulgated under the
Securities Act (the "RULES AND REGULATION") that have not been so
filed.
(x) All approvals, authorizations, consents, orders and other
actions of any Person or of any governmental body or official required
in connection with the execution and delivery of the Specified
Agreements to which the Seller and/or the Transferor is a Party, the
issuance of the Certificates and the Collateral Interest and the
performance of the transactions contemplated hereby and thereby and
the fulfillment of the terms hereof and thereof, have been obtained.
(xi) The Seller has delivered to the Representative complete and
correct copies of (A) publicly available portions of the Consolidated
Reports of Condition and Income of the Seller for the years ended
December 31, 1998, 1999 and 2000, as submitted to the Comptroller of
the Currency; and (B) the December 31, 1998, 1999 and 2000, audited
consolidated balance sheets of Mellon Financial Corporation which are
included in respectively Mellon Financial Corporation's 1998, 1999 and
2000 Annual Reports to Stockholders. Except as otherwise set forth
therein, or in other subsequent filings with the Commission, (x) there
has been no material adverse change in the condition (financial or
otherwise) of the Seller and (y) there have been no transactions
entered into by the Seller, other than those in the ordinary course of
its business, that are material with respect to the Seller.
(xii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of the
Specified Agreements and the Certificates and the Collateral Interest
shall have been paid by the Seller or will be paid by the Seller at or
prior to the Closing Date to the extent then due.
(xiii) The Certificates, when validly authenticated, issued and
delivered in accordance with the Pooling and Servicing Agreement and
sold to the Underwriters as provided herein and to the Class A
Underwriters pursuant to the Class A Underwriting Agreement, will be
duly and validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement, and, together with the Pooling
and Servicing Agreement, the Loan Agreement and the Collateral
Interest will conform in all material respects to the descriptions
thereof and the statements in relation thereto contained in the
Prospectus.
(xiv) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Specified Agreements to
which either the Seller or the Transferor is a party constitute the
legal, valid and binding agreement of the Seller or the Transferor, as
applicable, enforceable against the Seller or the Transferor, as
applicable, in accordance with its respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xv) On the Closing Date, (x) the Seller will have good and
marketable title to the Receivables and other property transferred by
it to the Transferor pursuant to the Second Tier Receivables Purchase
Agreement, and (y) the Transferor will have good and marketable title
to the Receivables and other property transferred by it to the Trust
pursuant to the Pooling and Servicing Agreement, in each case, free
and clear of Liens (other than the Liens granted pursuant to the
Second Tier Receivables Purchase Agreement and the Pooling and
Servicing Agreement), and will not have assigned to any Person (other
than to the Trustee) any of its right, title or interest in any of
such Receivables or such other property or and in to the First Tier
Receivables Purchase Agreement, the Second Tier Receivables Purchase
Agreement or the Pooling and Servicing Agreement, and the Underwriters
and the Class A Underwriters will have good and marketable title to
the Certificates, free and clear of all Liens when validly
authenticated, issued and delivered in accordance with the Pooling and
Servicing Agreement and sold to the Underwriters as provided herein
and to the Class A Underwriters pursuant to the Class A Underwriting
Agreement.
(xvi) At the time of each transfer of Receivables after the
Closing Date, (x) the Seller will have good and marketable title to
the Receivables and other property transferred by it to the Transferor
pursuant to the Second Tier Receivables Purchase Agreement, and (y)
the Transferor will have good and marketable title to the Receivables
and other property transferred by it to the Trust pursuant to the
Pooling and Servicing Agreement, in each case, free and clear of Liens
(other than the Liens granted pursuant to the Second Tier Receivables
Purchase Agreement and the Pooling and Servicing Agreement), and will
not have assigned to any Person (other than to the Trustee) any of its
right, title or interest in any of such Receivables or such other
property.
(xvii) None of the Seller, the Transferor nor the Trust is an
"INVESTMENT COMPANY" or "CONTROLLED" by an "INVESTMENT COMPANY" as
such terms are defined in the Investment Company Act.
(xviii) As of the Closing Date, each of the representations and
warranties of (x) the Seller deemed made pursuant to the Second Tier
Receivables Purchase Agreement and (y) the Transferor deemed made
pursuant to the Pooling and Servicing Agreement will each be true and
correct, and, as of each other date on which the Seller or the
Transferor, as applicable, is deemed, pursuant to the terms of the
Second Tier Receivables Purchase Agreement or the Pooling and
Servicing Agreement, as applicable, to make any of the representations
and warranties set forth therein, and in Officer's Certificates of the
Seller and/or the Transferor delivered on each such date pursuant to
the Second Tier Receivables Purchase Agreement or the Pooling and
Servicing Agreement, as applicable, will be true and correct and the
Underwriters may rely on such representations and warranties as if
they were set forth herein in full.
(b) Any Officer's Certificate signed by any officer of the Seller or
the Transferor and delivered to the Representative or its counsel shall be
deemed a representation and warranty of the Seller or the Transferor, as the
case may be, to the Underwriters as to the matters covered thereby.
Section 3. Purchase and Sale. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Transferor agrees to cause the Trust to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, except
as set forth in Section 9 below, to purchase the respective initial principal
amount of Class B Certificates set forth opposite such Underwriter's name in
Schedule I hereto, at a purchase price of 99.75% of the aggregate principal
amount thereof.
The Class B Certificates will initially be represented by one or more
certificates representing $450,000,000 aggregate initial principal amount, each
of which will be registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") (such certificates, the "DTC CERTIFICATES").
The interests of beneficial owners of the DTC Certificates will be represented
by book entries on the records of DTC and participating members thereof.
Definitive certificates evidencing the Class B Certificates will be available
only under the limited circumstances specified in the Pooling and Servicing
Agreement.
Delivery of the DTC Certificates shall be made to the accounts of the
several Underwriters at the office of DTC, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, against payment by the several Underwriters of the
purchase price therefor to or upon the order of the Transferor in immediately
available funds at the office of Stroock & Stroock & Xxxxx LLP, New York, New
York at 10:00 a.m., New York time, on June 15, 2001, or at such other time not
later than seven full business days thereafter as the Transferor and the
Underwriters determine, such time being herein referred to as the "CLOSING
DATE". The certificates evidencing the DTC Certificates will be made available
for checking at the office of Stroock & Stroock & Xxxxx LLP at 000 Xxxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, at least 24 hours prior to the Closing Date.
Section 4. Offering by the Underwriters. (a) It is understood that the
Underwriters propose to offer the Class B Certificates for sale to the public as
set forth in the Prospectus.
(b) Each Underwriter agrees that if it is a foreign broker dealer not
eligible for membership in the National Association of Securities Dealers, Inc.
(the "NASD"), it will not effect any transaction in the Class B Certificates
within the United States or induce or attempt to induce the purchase of or sale
of the Class B Certificates within the United States, except that it shall be
permitted to make sales to other Underwriters or to its United States
affiliates; provided that such sales are made in compliance with an exemption of
certain foreign brokers or dealers under Rule 15a-6 under the Exchange Act and
in conformity with the Rules of Fair Practice of the NASD as such Rules apply to
non-NASD brokers or dealers.
(c) Each Underwriter represents and agrees that (i) it has not offered
or sold and, prior to the expiry of the period of six months from the Closing
Date, will not offer or sell any Class B Certificates to Persons in the United
Kingdom except to Persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which do not
constitute an offer to the public in the United Kingdom for the purposes of the
Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom with respect to anything done by it in relation to the Class B
Certificates in, from or otherwise involving the United Kingdom; (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Class B
Certificates to a Person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1997
of the United Kingdom or is a Person to whom the document may otherwise lawfully
be issued or passed on.
Section 5. Certain Agreements of the Registrants. The Seller, the
Transferor and the Trust, each covenants and agrees with the several
Underwriters that:
(a) Each of the Registrants will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. If the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Registrants will file the Prospectus,
properly completed, pursuant to Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Underwriters of such timely
filing. The Registrants will promptly advise the Underwriters (i) when the
Registration Statement, and any amendment thereto, shall have become effective,
(ii) when the Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (iii) of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose and
(v) of the receipt by the Registrants of any notification with respect to the
suspension of the qualification of the Class B Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Registrants will not file any amendment of the Registration
Statement or supplement to the Prospectus unless a copy has been furnished to
the Representative for its review prior to such filing. Each of the Registrants
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the lifting thereof.
(b) If at any time when a Prospectus relating to the Class B
Certificates is required to be delivered under the Securities Act, any event
occurs as a result of which such Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement such Prospectus to comply with the
Securities Act or the Exchange Act or the Rules and Regulations thereunder, the
Registrants promptly will prepare and file with the Commission an amendment or
supplement that will effect such compliance; provided, however, that the
Underwriters shall have received and been given a reasonable opportunity to
review and comment on each such amendment or supplement prior to its filing with
the Commission. Neither the consent of any Underwriter to, nor the delivery by
any Underwriter of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
(c) As soon as practicable, but not later than the Availability Date
(as defined below), the Transferor will cause the Trustee to make generally
available to the Holders of the Class B Certificates and to the Representative
an earnings statement with respect to the Trust covering a period of at least 12
months beginning after the Effective Date that will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 under the Securities Act. For
the purpose of the preceding sentence, "AVAILABILITY DATE" means the 45th day
after the end of the fourth fiscal quarter following the fiscal quarter that
includes the Effective Date, except that, if such fourth fiscal quarter is the
last quarter of the Transferor's fiscal year, "AVAILABILITY DATE" means the 90th
day after the end of such fourth fiscal quarter.
(d) The Registrants will furnish to the Underwriters copies of the
Registration Statement as originally filed and each amendment thereto (in each
case at least three of which will be signed and will include all exhibits), each
related Preliminary Prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Underwriters may reasonably request. The Registrants will
furnish or cause to be furnished to the Representative copies of all reports on
Form SR required by Rule 463 under the Securities Act.
(e) The Seller and the Transferor will arrange for the qualification
of the Class B Certificates for sale under the laws of such jurisdictions in the
United States as the Underwriters may reasonably designate and will continue
such qualifications in effect so long as required for the distribution of the
Class B Certificates, provided that Seller and the Transferor shall not be
obligated to qualify to do business nor become subject to service of process
generally, but only to the extent required for such qualification, in any
jurisdiction in which it is not currently so qualified, and will arrange for the
determination of the legality of the Class B Certificates for purchase by
institutional investors.
(f) So long as any of the Class B Certificates are outstanding, the
Transferor will (or shall cause the Seller to) deliver or cause to be delivered
to the Underwriters (i) copies of each report mailed to the Trustee or the
Series 2001-1 Holders, as soon as such report is mailed to the Trustee or such
Holders, (ii) the annual statement as to compliance and the annual statement of
a firm of independent public accountants furnished to the Trustee pursuant to
Sections 3.5 and 3.6 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Trustee, (iii) copies of all documents required
to be filed with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (iv) such other information concerning the Seller, the
Transferor, the Certificates or the Trust as the Underwriters may reasonably
request from time to time.
(g) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement, including without limitation, (i) expenses
of preparing, printing, reproducing and distributing the Registration Statement
and each amendment thereto, the preliminary prospectuses, the Prospectus
(including any amendments and supplements thereto), the Specified Agreements and
the Class B Certificates, (ii) the fees and disbursements of the Trustee and its
counsel, (iii) the fees and disbursements of the independent public accountants
of the Seller and, to the extent previously agreed, fees and disbursements of
counsel to the Seller and the Transferor, (iv) the fees charged by Xxxxx'x
Investors Service, Inc. ("MOODY'S") and Standard & Poor's Ratings Service, a
division of The McGraw Hill Companies, Inc. ("STANDARD & Poor's" and together
with Moody's, the "RATING AGENCIES") in connection with the rating of the Class
B Certificates and the Collateral Interest, as applicable, (v) the fees of DTC
in connection with the book-entry registration of the DTC Certificate, (vi) to
the extent previously agreed, the fees and expenses of Stroock & Stroock & Xxxxx
LLP in its roles as underwriters' counsel and special counsel to the Seller and
the Transferor and (vii) expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters, and will reimburse the Underwriters for any
expenses (including reasonable fees and disbursements of counsel) incurred by
the Underwriters pursuant to Section 5(e) hereof in connection with the
qualification of the Class B Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions in the United
States as the Underwriters may designate.
(h) On or before the Closing Date, each of the Seller and the
Transferor, in turn, shall cause the Originators' books and records (including
any computer records) to be marked relating to the Receivables to be transferred
to the Trust, to show the transfer to the Trust of such Receivables, and from
and after the Closing Date, neither the Seller nor the Transferor shall not take
any action inconsistent with the transfer to the Trust of such Receivables,
other than as permitted by the Pooling and Servicing Agreement.
(i) For a period of 30 days from the date hereof, none of the
Registrants or any of their affiliates or any trust formed by them or any of
their affiliates will, without the prior written consent of the Underwriters,
directly or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized securities
similar to the Class B Certificates (other than the Class A Certificates and the
Collateral Interest) representing interests in insurance premium finance loans.
(j) So long as any Class B Certificates are outstanding, the
Transferor will (or will cause the Seller to) cause to be delivered to the
Underwriters a reliance letter relating to each Opinion of Counsel delivered to
the Trustee or any Rating Agency by counsel to the Seller or the Transferor
pursuant to the Pooling and Servicing Agreement at the time such opinion is
delivered.
(k) To the extent, if any, that the rating provided with respect to
the Class B Certificates by any Rating Agency is conditional upon the furnishing
of documents or the taking of any other actions by the Seller or the Transferor,
the Seller or the Transferor, as the case may be, shall furnish such documents
and take any such other actions as may be required.
Section 6. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Class B Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Seller and the Transferor as of the Execution Time and the Closing Date, to the
accuracy of the statements of the officers of the Originators, the Seller, the
Transferor and the Trust made pursuant to the provisions hereof, to the
performance by the Seller and the Transferor of their respective obligations
hereunder and to the following additional conditions precedent:
(a) (i) On the date of this Agreement, the Underwriters and the Seller
shall have received a letter, dated the date of delivery thereof (which, if the
Effective Time is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time is
subsequent to the execution and delivery of this Agreement, shall be prior to
the filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to the Effective Time), of KPMG LLP ("KPMG")
confirming that they are independent public accountants within the meaning of
the Securities Act and the Rules and Regulations, substantially in the form of
the draft to which the Underwriters have previously agreed and otherwise in form
and substance satisfactory to the Underwriters and counsel for the Underwriters,
and (ii) on the Closing Date, the Underwriters and the Seller shall have
received a letter, dated as of the Closing Date, from KPMG updating the letter
referred to in clause (i) above, in form and substance satisfactory to the
Underwriters and counsel for the Underwriters.
(b) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriters agree in writing to a later time,
the Registration Statement shall have become effective not later than 10:00 a.m.
New York time on the date of this Agreement (or the next day, if this Agreement
is executed after the close of business on the date hereof); if filing of the
Prospectus, or any supplements thereto, is required pursuant to Rule 424(b), the
Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
any of the Originators, the Seller or the Transferor which, in the judgment of
the Underwriters materially impairs the investment quality of the Class B
Certificates; (ii) any downgrading in the rating of any debt securities of
Mellon Financial Corporation or any of its direct or indirect subsidiaries by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Seller on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal, New York, Delaware or Pennsylvania authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of the Underwriters,
the effect of and such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Class B Certificates.
(d) The Representative shall have received:
(1) The favorable opinion or opinions of internal counsel of the
Seller and/or Xxxx Xxxxx LLP counsel to the Seller and the Transferor,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, and in the aggregate substantially to
the effect that:
(i) The Transferor has been duly formed as a Delaware
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. Codess.3801 et seq., as it may be amended from time to
time, and is validly existing and in good standing under the laws
of the State of Delaware, is duly qualified to do business and is
in good standing under the laws of each jurisdiction other than
where the failure to be so qualified would not have a material
adverse effect on the Transferor's business, and has full trust
power and authority to own its properties, to conduct its
business as described in the Registration Statement and the
Prospectus, to enter into and perform its obligations under the
Specified Agreements to which it is a party, to execute the
Certificates and to consummate the transactions contemplated
hereby and thereby;
(ii) each of the Specified Agreements to which it is a party
and the Certificates have each been duly authorized, executed and
delivered by the Transferor;
(iii) neither the execution and delivery of the Specified
Agreements to which it is a party, nor the issuance or delivery
of the Certificates, nor the consummation of any of the
transactions contemplated herein or therein, nor the fulfillment
of the terms of the Certificates or the Specified Agreements,
will conflict with or violate, result in a material breach of or
constitute a default under (A) any Requirements of Law applicable
to the Transferor or any statute or regulation currently
applicable to the Trust, (B) any term or provision of any order
known to such counsel to be currently applicable to the
Transferor or the Trust of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Transferor or the Trust, as the case may be, or (C) any
term or provision of any indenture or other agreement or
instrument known to such counsel to which the Transferor or the
Trust is a party or by which either of them or any of their
properties are bound (provided that the opinion provided pursuant
to this paragraph may exclude the indemnification and
contribution provisions of the Underwriting Agreements);
(iv) the Receivables constitute "general intangibles" as
defined in the Uniform Commercial Code in effect in the State of
Delaware and the Commonwealth of Pennsylvania;
(v) Uniform Commercial Code financing statements with
respect to the Investor Interest in the Receivables and the
proceeds thereof have been filed in the offices of the Secretary
of State of the State of Delaware and the Secretary of State of
the Commonwealth of Pennsylvania. No other filings or other
actions, with respect to the Trustee's interest in the
Receivables transferred and to be transferred by the Transferor
to the Trust, are necessary to perfect the interest of the
Trustee in the Receivables, and the proceeds thereof, against
third parties, except that appropriate continuation statements
must be filed at five-year intervals;
(vi) in the event that a court were to conclude that the
assignment of the Receivables, all documents and instruments
relating thereto and all proceeds thereof to the Trustee pursuant
to the Pooling and Servicing Agreement was not a sale, the
Pooling and Servicing Agreement, together with the filing of the
financing statements referred to in paragraph (v) above, create a
first priority perfected security interest in the Receivables
transferred and to be transferred by the Transferor to the Trust,
all documents and instruments relating thereto and all proceeds
thereof, prior to any security interests which may be perfected
under Delaware or Pennsylvania law by the filing of financing
statements (in rendering such opinion counsel may take such
exceptions as are appropriate and reasonably acceptable under the
circumstances);
(vii) except as otherwise disclosed in the Prospectus (and
any supplements thereto) or the Registration Statement, there is
no pending or, to the best knowledge of such counsel, threatened
action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator with respect to the
Trust, the Certificates, the Specified Agreements or any of the
transactions contemplated therein or with respect to the
Transferor which, taking into account the likelihood of the
outcome, the damages or other relief sought and other relevant
factors, would have a material adverse effect on the holders of
the Certificates or upon the ability of the Transferor to perform
its obligations under the Specified Agreements; and any
statements included in the Registration Statement and the
Prospectus (and any amendments or supplements thereto) describing
(A) legal proceedings relating to the Transferor and (B) the
Premium Finance Agreements in each case fairly summarize the
matters therein described;
(viii) such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and any
amendments or supplements thereto as of the Closing Date)
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading (other than, in both cases, financial and statistical
information contained or required to be contained therein as to
which such counsel need express no belief) (such belief may be
limited to the sections of the Prospectus under the headings
"PROSPECTUS SUMMARY -- TRANSACTION PARTIES -- Transferor," "--
Seller," and "-- Originators and Servicers" (as to Servicers
only), "DESCRIPTION OF CERTIFICATES -- Pay-Out Events" (limited
to the paragraph thereof beginning with "As of the statistical
calculation date . . ."), "BUSINESS OF THE ORIGINATORS," and "THE
RECEIVABLES" and the parallel sections of the Registration
Statement); and;
(ix) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or with
any court or governmental agency or body is required for the
consummation by the Transferor or the Trust of the transactions
contemplated in or the performance of any of its duties and
obligations under the Specified Agreements, except such as have
been obtained under the Securities Act and such as may be
required under the blue sky laws of any jurisdiction inside the
United States in connection with the purchase and distribution of
the Class B Certificates by the Underwriters and such as may be
required under insurance premium finance or similar laws.
In rendering such opinion counsel may rely as to matters of fact,
to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Trust, the Transferor and public
officials. References to the Prospectus in this opinion shall include
any supplements thereto.
(2) The favorable opinion of Xxxxxxx & Xxxxxxx & Xxxxx LLP,
counsel for the Underwriters and special counsel to Seller and the
Transferor, dated the Closing Date and to the effect that:
(i) the Certificates, when executed, authenticated and
delivered as specified in the Pooling and Servicing Agreement,
and delivered against payment of the consideration specified
herein, will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement;
(ii) the First Tier Receivables Purchase Agreement and the
Second Tier Receivables Purchase Agreement constitutes the legal,
valid and binding agreement of each of the Originators, the
Seller and the Transferor, respectively, enforceable in
accordance with its terms, subject (a) to the effect of
bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of equitable
principles in any proceeding, whether at law or in equity, and
(c) to limitations of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder;
(iii) the Pooling and Servicing Agreement and the Loan
Agreement each constitutes the legal, valid and binding agreement
of the Transferor, and the Loan Agreement constitutes the legal,
valid and binding agreement of the Seller, each enforceable in
accordance with its terms, subject (a) to the effect of
bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of equitable
principles in any proceeding, whether at law or in equity, and
(c) to limitations of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder;
(iv) the Registration Statement has become effective under
the Securities Act, and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated
under the Securities Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act and
the Rules and Regulations.
(v) Such counsel has participated in conferences with
representatives of the Seller, the Transferor, the Originators
and the Representative, at which the contents of the Registration
Statement, the Prospectus and related matters were discussed and,
although such counsel is not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the
Prospectus (except to the extent set forth in paragraph (ix)
below), on the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of officers and other
representatives of the Seller, the Transferor and the
Originators), no facts have come to such counsel's attention
which would lead such counsel to believe that the Registration
Statement at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein no misleading or that the Prospectus, on the date hereof,
includes an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading (other than, in the case of both the
Registration Statement and the Prospectus, the financial
statements and other financial and statistical information
contained therein or incorporated by reference therein, as to
which, in each case, no view shall be expressed);
(vi) the Certificates, the First Tier Receivables Purchase
Agreement, the Second Tier Receivables Purchase Agreement and the
Pooling and Servicing Agreement each conform in all material
respects with the description thereof contained in the
Registration Statement and the Prospectus;
(vii) the Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended;
(viii) neither the Seller or the Trust is not an "investment
company" within the meaning of the Investment Company Act;
(ix) the statements in the Registration Statement under the
heading "Certain Legal Aspects of the Receivables-Transfer of
Receivables", "U.S. Federal Income Tax Consequences" and "ERISA
Considerations" to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all
material respects;
(x) the Receivables constitute "general intangibles" as
defined in the Uniform Commercial Code in the State of New York;
(xi) (A) the Certificates will properly be treated as
indebtedness for federal income tax purposes and (B) the Trust
will not be classified as an association or a publicly traded
partnership taxable as a corporation for federal income tax
purposes; and
(xii) such other opinions as the Rating Agencies may
require.
In rendering such opinion, Xxxxxxx & Xxxxxxx & Xxxxx LLP may rely
on the opinions of (A) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel for
the Transferor, (B) Xxxx Xxxxx LLP, counsel to Seller and the
Originators, and (C) internal counsel to each of the Seller, the
Transferor and the Originators, as to the matters dealt with in such
opinions.
(3) The favorable opinion of Xxxx Xxxxx LLP, counsel to Seller,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, and substantially to the effect that:
(i) the Receivables constitute "general intangibles" as
defined in the Uniform Commercial Code in effect in the
Commonwealth of Pennsylvania;
(ii) Uniform Commercial Code financing statements with
respect to the Investor Interest in the Receivables and the
proceeds thereof have been filed in the office of the Secretary
of State of the Commonwealth of Pennsylvania. No other filings or
other actions, with respect to the Transferor's interest in the
Receivables transferred and to be transferred by Seller to the
Transferor, are necessary to perfect the interest of the
Transferor in the Receivables, and the proceeds thereof, against
third parties, except that appropriate continuation statements
must be filed at five-year intervals; and
(iii) in the event that a court were to conclude that the
assignment of the Receivables, all documents and instruments
relating thereto and all proceeds thereof to Transferor pursuant
to the Second Tier Receivables Purchase Agreement was not a sale,
the Second Tier Receivables Purchase Agreement, together with the
filing of the financing statements referred to in paragraph (ii)
above, create a first priority perfected security interest in the
Receivables transferred and to be transferred by Seller to the
Transferor, all documents and instruments relating thereto and
all proceeds thereof, prior to any security interests which may
be perfected under Pennsylvania law by the filing of financing
statements (in rendering such opinion counsel may take such
exceptions as are appropriate and reasonably acceptable under the
circumstances).
(4) The favorable opinion or opinions of internal counsel of each
of the Originators and/or of Xxxx Xxxxx LLP, counsel to Originators,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, and in the aggregate substantially to
the effect that:
(i) each of the Originators has been duly organized and
licensed as a corporation and is validly existing and in good
standing under the laws of New York and California, respectively,
is duly qualified to do business and is in good standing under
the laws of each jurisdiction where it conducts its business
other than where the failure to be so qualified would not have a
material adverse effect on Originator's business, and has full
corporate power and authority to own its properties, to conduct
its business as described in the Registration Statement and the
Prospectus, to enter into and perform its obligations under the
Specified Agreements to which it is a party and to consummate the
transactions contemplated hereby and thereby;
(ii) each of the Specified Agreements to which it is a party
has been duly authorized, executed and delivered by each
Originator, as the case may be;
(iii) neither the execution and delivery of the Specified
Agreements to which it is a party, nor the consummation of any of
the transactions contemplated herein or therein, nor the
fulfillment of the terms of the Specified Agreements, will
conflict with or violate, result in a material breach of or
constitute a default under (A) any Requirements of Law applicable
to either of the Originators or any statute or regulation
currently applicable, (B) any term or provision of any order
known to such counsel to be currently applicable to either of the
Originators of any court, regulatory body, administrative agency
or governmental body having jurisdiction over either of the
Originators, as the case may be, or (C) any term or provision of
any indenture or other agreement or instrument known to such
counsel to which either of the Originators is a party or by which
either of them or any of their properties are bound;
(iv) except as otherwise disclosed in the Prospectus (and
any supplements thereto) or the Registration Statement, there is
no pending or, to the best knowledge of such counsel, threatened
action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator with respect to the
Specified Agreements to which the Originators are a party or any
of the transactions contemplated herein or therein or with
respect to the Originators which would have a material adverse
effect on the Certificates or the Trust or upon the ability of
either of the Originators to perform its obligations under the
Specified Agreements; and the statements included in the
Registration Statement and the Prospectus (and any supplements
thereto) describing (A) legal proceedings relating to the
Originators and (B) the insurance premium finance loan
agreements, regulation of premium finance companies and state
insurance guaranty funds in each case fairly summarize the
matters therein described;
(v) such counsel has no reason to believe that at the
Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and any
supplements thereto as of the Closing Date) includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other
than, in both cases, financial and statistical information
contained or required to be contained therein as to which such
counsel need express no belief) (such belief may be limited to
the sections of the Prospectus under the headings "PROSPECTUS
SUMMARY -- TRANSACTION SUMMARY -- Originators and Servicers" (as
to Servicers only), "-- Trust Assets," and "-- The Receivables,"
"RISK FACTORS -- Regulation of insurance premium finance lending
could delay or reduce payments to you," and "-- The sums provided
by insurance guaranty funds could be limited and might result in
delayed or reduced payments to you," "BUSINESS OF THE
ORIGINATORS," and "THE RECEIVABLES");
(vi) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or with
any court or governmental agency or body is required for the
consummation or performance by the Originators of the
transactions contemplated by, or performance of their respective
obligations under any of the Specified Agreements, except such as
have been obtained under the Securities Act and such as may be
required under the blue sky laws of any jurisdiction inside the
United States in connection with the purchase and distribution of
the Class B Certificates by the Underwriters and such filings or
other approvals (specified in such opinion) as have been made or
obtained;
(vii) such counsel has been advised of the Originators'
standard operating procedures relating to the Originators'
acquisition of a perfected first priority security interest in
the unearned premiums securing the obligations of the borrowers
under insurance premium finance agreements originated by
Originators in the ordinary course of the Originators' business.
Assuming that the Originators' standard operating procedures are
followed with respect to the perfection of security interests in
the unearned premiums relating to the Receivables (such counsel
having no reason to believe that the Originators have not or will
not continue to follow their standard operating procedures in
connection with the perfection of security interests in unearned
premiums), each Originator has acquired or will acquire a
perfected first priority security interest in the unearned
premiums relating to the Receivables; and
(viii) each of the Originators, the Seller, the Transferor,
the Trust has either obtained all licenses required to be
obtained, or is exempt from such licensing requirements, with
respect to its respective ownership of the Receivables, and the
performance by the Servicer of its obligations under the Pooling
and Servicing Agreement.
In rendering such opinion counsel may rely as to matters of fact,
to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Trust, the Transferor, Seller and public
officials. References to the Prospectus in this opinion shall include
any supplements thereto.
(5) The favorable opinion or opinions of internal counsel of the
Seller, and/or Xxxx Xxxxx LLP, counsel to the Seller, dated the
Closing Date and satisfactory in form and substance to the
Representative and its counsel, and in the aggregate substantially to
the effect that:
(i) the Seller has been duly organized and licensed as a
national banking association and is validly existing and in good
standing under the laws of the United States of America, is duly
qualified to do business and is in good standing under the laws
of each jurisdiction where it conducts its business other than
where the failure to be so qualified would not have a material
adverse effect on the Seller's business, and has full corporate
power and authority to own its properties, to conduct its
business as described in the Registration Statement and the
Prospectus, to enter into and perform its obligations under the
Specified Agreements to which it is a party and to consummate the
transactions contemplated hereby and thereby;
(ii) each of the Specified Agreements to which it is a party
has been duly authorized, executed and delivered the Seller;
(iii) neither the execution and delivery of the Specified
Agreements to which it is a party, nor the consummation of any of
the transactions contemplated herein or therein, nor the
fulfillment of the terms of the Specified Agreements, will
conflict with or violate, result in a material breach of or
constitute a default under (A) any Requirements of Law applicable
to the Seller or any statute or regulation currently applicable,
(B) any term or provision of any order known to such counsel to
be currently applicable to the Seller of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Seller, or (C) any term or provision of any
indenture or other agreement or instrument known to such counsel
to which the Seller is a party or by which it or any of its
properties are bound;
(iv) except as otherwise disclosed in the Prospectus (and
any supplements thereto) or the Registration Statement, there is
no pending or, to the best knowledge of such counsel, threatened
action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator with respect to the
Specified Agreements to which the Seller is a party or any of the
transactions contemplated herein or therein or with respect to
the Seller which would have a material adverse effect on the
Certificates or the Trust or upon the ability of the Seller to
perform its obligations under the Specified Agreements; and the
statements included in the Registration Statement and the
Prospectus (and any supplements thereto) describing (A) legal
proceedings relating to the Seller and (B) Premium Finance
Agreements in each case fairly summarize the matters therein
described;
(v) such counsel has no reason to believe that at the
Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (and any
supplements thereto as of the Closing Date) includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other
than, in both cases, financial and statistical information
contained or required to be contained therein as to which such
counsel need express no belief); and
(vi) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or with
any court or governmental agency or body is required for the
consummation or performance by the Seller, the Transferor, the
Trustee or the Trust of the transactions contemplated by, or
performance of their respective obligations under any of the
Specified Agreements, except such as have been obtained under the
Securities Act and such as may be required under the blue sky
laws of any jurisdiction inside the United States in connection
with the purchase and distribution of the Class B Certificates by
the Underwriters and such filings or other approvals (specified
in such opinion) as have been made or obtained.
In rendering such opinion counsel may rely as to matters of fact,
to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Trust, the Transferor, the Seller and
public officials. References to the Prospectus in this opinion shall
include any supplements thereto.
(6) The favorable opinion or opinions of internal counsel of
Back-up Servicer, Xxxxxxxx & Xxxxxx, P.C. and/or of Xxxxxxx & Xxxx,
X.X., counsel to Back-up Servicer, dated the Closing Date and
satisfactory in form and substance to the Representative and its
counsel, and in the aggregate substantially to the effect that:
(i) Each of PFSI and PFSIC has been duly organized and
licensed as a corporation and is validly existing and in good
standing under the laws of its incorporation, is duly qualified
to do business and is in good standing under the laws of its
incorporation and has full corporate power and authority to enter
into and perform its obligations under the Pooling and Servicing
Agreement, and to consummate the transactions contemplated
thereby;
(ii) each of the Specified Agreements as to which it is a
party to have been duly authorized, executed and delivered by the
Back-up Servicer;
(iii) neither the execution of the Pooling and Servicing
Agreement nor the performance by the Back-up Servicer of its
obligations as a successor Servicer will conflict with or
violate, result in a material breach of or constitute a default
under (A) any Requirements of Law applicable to Back-up Servicer,
(B) any term or provision of any order known to such counsel to
be currently applicable to Back-up Servicer of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over Back-up Servicer, as the case may be, or
(C) any term or provision of any indenture or other agreement or
instrument known to such counsel to which Back-up Servicer is a
party or by which any of the Back-up Servicer's properties are
bound;
(iv) assuming the laws of the State of New York are the same
as the laws of the State of Missouri with respect to PFSI, and
California with respect to PFSIC, the Pooling and Servicing
Agreement constitutes the legal, valid and binding obligation of
PFSI and PFSIC, respectively, enforceable in accordance with its
respective terms, except that (A) the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought; and
(v) no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or with
any court or governmental agency or body is required for the
consummation or performance by the Back-up Servicer of the
transactions contemplated by, or performance of its obligations
under the Pooling and Servicing Agreement (including the
performance of the Back-up Servicer of the obligations of the
Servicer under the Pooling and Servicing Agreement), except such
as have been made or obtained (as specified in such opinion).
(7) Reliance letters relating to each opinion rendered to the
Trustee or any Rating Agency by Xxxx Xxxxx, Xxxxxxxx, Xxxxxx & Xxxxxx,
P.A. or any other counsel to the Transferor in connection with the
rating of the Certificates.
(8) The favorable opinion of internal counsel to the Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
United States of America with full power and authority (corporate
and other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its
obligations under the Specified Agreements to which it is a party
and to issue the Certificates and the Collateral Interest;
(ii) each of the Specified Agreements to which it is a party
has been duly authorized, executed and delivered by the Trustee;
(iii) assuming the laws of the State of Minnesota are the
same as the laws of the State of New York, the Specified
Agreements to which it is a party constitute the legal, valid and
binding obligation of the Trustee, enforceable in accordance with
their respective terms, except that (A) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (B) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought;
(iv) the Certificates have been duly executed, authenticated
and delivered by the Trustee;
(v) neither the execution and delivery by the Trustee of the
Specified Agreements to which it is a party nor the consummation
of any of the transactions by the Trustee contemplated thereby
required the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect
to, any governmental authority or agency under any existing
federal or state law governing the banking or trust powers of the
Trustee; and
(vi) the execution and delivery of the Specified Agreements
to which it is a party by the Trustee and the performance by the
Trustee of their respective terms do not conflict with or result
in a violation of (A) any law or regulation of the United States
of America or the State of Minnesota governing trust powers of
the Trustee, (B) the Articles of Association or By-Laws of the
Trustee, or (C) to the best of their knowledge, any indenture,
lease, or other material agreement to which the Trustee is a
party or to which its assets are subject.
(9) The favorable opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A.,
counsel to the Owner Trustee, dated the Closing Date and satisfactory
in form and substance to the Representative and its counsel to the
effect that:
(i) the Owner Trustee has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the United States of America with full power and authority
(corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and
perform its obligations under the Specified Agreements to which
it is a party;
(ii) each of the Specified Agreements to which it is a party
has been duly authorized, executed and delivered by the Owner
Trustee;
(iii) the Specified Agreements to which it is a party
constitute the legal, valid and binding obligation of the Owner
Trustee, enforceable in accordance with their respective terms,
except that (A) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and (B) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iv) neither the execution and delivery by the Owner Trustee
of the Specified Agreements to which it is a party nor the
consummation of any of the transactions by the Owner Trustee
contemplated thereby required the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or
agency under any existing federal or state law governing the
banking or trust powers of the Owner Trustee; and
(v) the execution and delivery of the Specified Agreements
to which it is a party by the Trustee and the performance by the
Owner Trustee of their respective terms do not conflict with or
result in a violation of (A) any law or regulation of the United
States of America or the State of Delaware governing trust powers
of the Trustee, (B) the Articles of Association or By-Laws of the
Trustee, or (C) to the best of their knowledge, any indenture,
lease, or other material agreement to which the Trustee is a
party or to which its assets are subject.
(e) The Representative shall have received a certificate dated the
Closing Date of the President, any Vice President, the Treasurer or any
Assistant Treasurer, of each of the Seller and the Transferor in which such
officer shall state that the representations and warranties of the Seller and
the Transferor, as applicable, in this Agreement are true and correct, and that
the Seller or the Transferor, as applicable, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, and subsequent to
the date of the most recent financial statements of the Seller delivered to the
Representative hereunder, there has been no material adverse change in the
condition, financial or otherwise, whether or not arising from transactions in
the ordinary course of business, of the Seller or the Transferor except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(f) The Representative shall have received a certificate dated the
Closing Date of the President, any Vice President, the Treasurer or any
Assistant Treasurer, of each of the Originators in which such officer shall
state that the representations and warranties of each of the Originators in
Specified Agreements to which it is a party are true and correct, and that each
of the Originators has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(g) The Class B Certificates shall be rated at least "Aa3" by Xxxxx'x
and "A" by Standard & Poor's, and the Class A Certificates shall be rated "Aaa"
by Xxxxx'x and "AAA" by Standard & Poor's.
(h) The Representative shall have received evidence satisfactory to it
and its counsel that, on or before the Closing Date, UCC-1 financing statements
have been filed in the offices of the Secretary of State of the State of New
York, the office of the Secretary of State of the State of California, the
office of the Secretary of State of the Commonwealth of Pennsylvania, and the
office of the Secretary of State of the State of Delaware reflecting the
interest of the Seller and/or the Transferor (as each has been assigned to or
granted to the Trust), as the case may be, in the Receivables and the proceeds
thereof.
(i) The Representative and the Transferor shall have received from
counsel for the Collateral Interest Holder reasonably acceptable to the
Representative and the Transferor, the favorable opinion or opinions, dated the
Closing Date and satisfactory in form and substance to the Representative, its
counsel, the Transferor and its counsel, and in the aggregate substantially to
the effect that:
(1) the Collateral Interest Holder is a corporation duly
organized and validly existing under the laws of the State of Delaware
and has the corporate power and authority under the laws of the State
of Delaware to execute, deliver and perform its obligations under the
Loan Agreement;
(2) the Loan Agreement has been duly and validly authorized,
executed and delivered by the Collateral Interest Holder and
constitutes the legal, valid and legally binding obligation of the
Collateral Interest Holder enforceable against the Collateral Interest
Holder in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium, readjustment of debt or other similar laws
affecting the enforcement of creditors' rights generally, as such laws
may be applied in the event of a bankruptcy, insolvency,
reorganization, liquidation, moratorium, readjustment of debt of, or
the appointment of a receiver with respect to the property of, or a
similar event applicable to the Collateral Interest Holder; and
(3) all consents, approvals, authorizations, licenses, rulings or
orders of or actions by any Delaware or federal governmental authority
and all filings, recordings or publications, if any, required on the
part of the Collateral Interest Holder in connection with the
execution, delivery or performance by the Collateral Interest Holder
of the Loan Agreement have been obtained or made and are in full force
and effect.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Trust any Originator or the
Transferor the effect of which, in any case referred to above, is, in the
judgment of the Underwriters, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or the delivery of the Class B
Certificates as contemplated by the Registration Statement and the Prospectus
(and any supplements thereto).
(k) Each of the representations and warranties of the Originators, the
Servicer, the Back-up Servicer, the Seller and the Transferor contained in the
Specified Agreements are true and correct as of the Closing Date.
(l) Simultaneously with or prior to the Closing Date, $450,000,000
aggregate initial principal amount of the Class A Certificates shall have been
sold to the Class A Underwriters.
The Transferor will provide or cause to be provided to the
Underwriters such conformed copies of such opinions, certificates, letters and
documents as the Underwriters may reasonably request.
Section 7. INDEMNIFICATION AND CONTRIBUTION. (a) Seller and the
Transferor will jointly and severally indemnify and hold harmless each
Underwriter and each Person who controls any Underwriter within the meaning of
the Securities Act against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters or any of them may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter and each Person who controls any Underwriter
within the meaning of the Securities Act for any actual legal or other expenses
reasonably incurred by the Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that Seller and the Transferor will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with the Underwriter Information furnished to the Seller and
the Transferor by any Underwriter through the Representative specifically for
use therein.
(b) Each Underwriter, severally, but not jointly, agrees to indemnify
and hold harmless Seller and the Transferor against any losses, claims, damages
or liabilities to which Seller and the Transferor may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the Underwriter Information relating to such
Underwriter furnished to the Seller and the Transferor by such Underwriter
through the Representative specifically for use therein, and will reimburse any
actual legal or other expenses reasonably incurred by Seller and the Transferor
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action or the assertion by a third party of
a claim, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under SUBSECTION (A) or (B) above, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party except and to the extent of any prejudice to
such indemnifying party arising from such failure to provide such notice. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. Notwithstanding the foregoing, in the event that the defendants
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be one
or more legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under SUBSECTION (A) or
(B) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in SUBSECTION (A) or (B) above (i) in such proportion as
is appropriate to reflect the relative benefits received by Seller and the
Transferor on the one hand and the Underwriters on the other from the offering
of the Class B Certificates or (ii) if the allocation provided by CLAUSE (I)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of Seller and 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 as well as any other
relevant equitable considerations. The relative benefits received by Seller and
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 the offering of the
Class B Certificates (before deducting expenses) received by the Transferor bear
to the total underwriting discounts and commissions received by the Underwriters
(the "SPREAD"). 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 Seller and the Transferor or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this SUBSECTION (D) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this SUBSECTION (D). Notwithstanding any other provision of this
SUBSECTION (D), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the Spread with respect to the Class B
Certificates purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute hereunder are several in proportion to their
respective underwriting obligations, and not joint, and contributions among
Underwriters shall be governed by the provisions of the Deutsche Banc Xxxx.
Xxxxx Inc. Master Agreement Among Underwriters.
(e) The obligations of the Seller and the Transferor under this
Section shall be in addition to any liability that the Seller or the Transferor
may otherwise have and shall extend, upon the same terms and conditions, to each
Person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of any Underwriter under this Section shall
be in addition to any liability that such Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of the Seller
or the Transferor, to each officer of the Seller or the Transferor who signed
the Registration Statement and to each Person, if any, who controls the Seller
or Transferor within the meaning of the Securities Act.
Section 8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Transferor or its officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made by
or on behalf of the Underwriters, the Transferor or any of their respective
representatives, officers or directors or any controlling Person, and will
survive delivery of and payment for the Class B Certificates. If for any reason
the purchase of the Class B Certificates by the Underwriters is not consummated,
the Seller shall remain responsible for the expenses to be paid or reimbursed by
the Seller pursuant to SECTION 5(G) hereof and the respective obligations of
Seller, the Transferor and the Underwriters pursuant to Section 7 hereof shall
remain in effect. If the purchase of the Class B Certificates by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of any event specified in CLAUSE (III), (IV) OR (V) of SECTION 6(C)
hereof, the Seller will reimburse the Underwriters for all actual out-of-pocket
expenses (including fees and disbursements of counsel to the extent previously
agreed) reasonably incurred by them in connection with the offering of the Class
B Certificates.
Section 9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Class B Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Class B Certificates set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Class B Certificates set forth opposite the
names of all the remaining Underwriters) the Class B Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase; PROVIDED,
HOWEVER, that in the event that the aggregate amount of Class B Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Class B Certificates set
forth in SCHEDULE I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Class B Certificates, and if such nondefaulting Underwriters do not purchase all
the Class B Certificates, this Agreement will terminate without liability to any
non-defaulting Underwriter, the Trust, the Seller or the Transferor. In the
event of a default by any Underwriter as set forth in this SECTION 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus (and any supplements thereto) or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
Seller, the Transferor and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
Section 10. NOTICES. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them c/o Deutsche Banc Xxxx. Xxxxx Inc., 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset-Backed Securities; or if sent to the
Seller, will be mailed, delivered or telegraphed and confirmed to it at Mellon
Bank, N.A., One Mellon Bank Center, Pittsburgh, Pennsylvania 15258, Attention:
Corporate Secretarial Services Department; or if sent to the Transferor will be
mailed, delivered or telegraphed and confirmed to it c/o Chase Manhattan Bank
USA, National Association, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000
Attention: Corporate Trust Administration.
Section 11. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling Persons referred to in Section 7 hereof,
and no other Person will have any right or obligation hereunder.
Section 12. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
Section 13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
Section 14. MISCELLANEOUS. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 15. REPRESENTATIVE. The Representative will act for the
several Underwriters in connection with this Agreement and the transactions
contemplated hereby and any action under this Agreement taken by the
Representative will be binding upon all the Underwriters.
Section 16. LIMITATION OF LIABILITY. (a) It is expressly understood
and agreed by the parties hereto that (i) this Agreement is executed and
delivered by the Transferor, a Delaware statutory business trust, in the
exercise of the powers and authority conferred and vested in it under the Trust
Agreement, (ii) each of the representations, undertakings and agreements herein
made on the part of the Transferor is made and intended not as personal
representations, undertakings and agreements by the Owner Trustee, the
Beneficiary or the Administrator of the Transferor (each as defined in the Trust
Agreement) but is made and intended for the purpose for binding only the
Transferor and (iii) under no circumstances shall the Owner Trustee, the
Beneficiary or the Administrator of the Transferor be personally liable in such
capacity for the payment of any indebtedness or expenses of the Transferor or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Transferor under this Agreement or any
related document.
(b) It is expressly understood and agreed by the parties hereto that
(i) this Agreement is executed and delivered by Xxxxx Fargo Bank Minnesota,
National Association, not individually or personally but solely as Trustee of
the Trust under the P&S, in the exercise of the powers and authority conferred
and vested in it, (ii) nothing herein contained shall be construed as creating
any liability on Xxxxx Fargo Bank Minnesota, National Association, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (iii)
under no circumstances shall Xxxxx Fargo Bank Minnesota, National Association be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by any party under this Agreement or any
other agreement relating hereto.
Section 17. NO PETITION. The Underwriters and the Seller each hereby
covenants and agrees that none of them shall institute against the Transferor or
the Trust, or join in any institution against the Transferor or the Trust of,
any bankruptcy, reorganization, arrangement, receivership, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
the Class B Certificates or this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between Seller, the
Transferor and the several Underwriters in accordance with its terms.
Very truly yours,
MELLON BANK, N.A., as Seller
By: Xxxxxx X. Xxxxxxx
By: /s/ Xxx X. Au
--------------------------
Name: Xxx X. Au
Title: Attorney-in-Fact
MELLON PREMIUM FINANCE LOAN OWNER TRUST,
as Transferor
By: MELLON BANK, N.A., as Depositor
of the Transferor
By: Xxxxxx X. Xxxxxxx
By: /s/ Xxx X. Au
--------------------------
Name: Xxx X. Au
Title: Attorney-in-Fact
MELLON BANK PREMIUM FINANCE LOAN MASTER
TRUST, as Trust
By: XXXXX FARGO BANK
MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Trustee
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted,
as of the date first above written:
DEUTSCHE BANC ALEX. BROWN
INC., as Representative
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Director
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Director
For itself and the other Underwriters
named in SCHEDULE I to the foregoing
Underwriting Agreement.
SCHEDULE I
Principal Amount of
Class B Underwriters Class A Certificates
Mellon Financial Markets, LLC $225,000,000
Deutsche Banc Xxxx. Xxxxx Inc. $225,000,000
Principal Amount of
Class A Underwriters Class B Certificates
Mellon Financial Markets, LLC $10,000,000
Deutsche Banc Xxxx. Xxxxx Inc. $10,000,000
