EXHIBIT 1.2
[FORM OF]
MELLON STUDENT LOAN TRUST _______-___
$-----------
FLOATING RATE ASSET BACKED CERTIFICATES
MELLON BANK, N.A.
(SELLER)
CERTIFICATE UNDERWRITING AGREEMENT
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As Representative of the
several Underwriters
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Dear Sirs:
1. INTRODUCTORY. Mellon Bank, N.A., National Association, a national
banking association ("Mellon"), proposes to cause Mellon Student Loan Trust
_____-__ (the "Trust") to issue and sell $_________ principal amount of its
Floating Rate Asset Backed Certificates (the "Certificates") to the underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative. The Trust was formed, and the
Certificates issued, pursuant to the Trust Agreement, dated as of
____________________, as amended and restated by the Amended and Restated Trust
Agreement, dated as of ___________________ (as further amended and supplemented
from time to time, collectively, the "Trust Agreement") between Mellon, as
depositor and ____________________, as Eligible Lender Trustee (the "Eligible
Lender Trustee"). The assets of the Trust include, among other things, two pools
of graduate and undergraduate student loans (collectively, the "Initial Financed
Student Loans") and certain monies due thereunder on and after _________________
with respect to certain of the Initial Financed Student Loans, and
______________________, with respect to certain other Initial Financed Student
Loans (collectively, the "Cutoff Date"). Such Initial Financed Student Loans
were sold to the Eligible Lender Trustee on behalf of the Trust by the Seller
pursuant to the Sale and Servicing Agreement, dated as of ___________________
(as amended and supplemented from time to time, the "Sale and Servicing
Agreement"), among, the Trust, the Eligible Lender Trustee, Mellon, as master
servicer (in such capacity, the "Master Servicer"), Mellon, as seller (in such
capacity, the "Seller"), and Mellon as administrator (in such capacity, the
"Administrator"). The Master Servicer has also entered into two certain
sub-servicing agreements to have the Financed Student Loans sub-serviced with
each of __________________________________, ______________________________
("________" and, in its capacity as a sub-servicer, "Sub-Servicer") and
_________________________________, ________________________ ("________" or a
"Sub-Servicer"). After the Closing Date (as defined below), the Eligible Lender
Trustee, acting on behalf of the Trust, will acquire certain additional student
loans identified in the Sale and Servicing Agreement on or prior to
______________ (the "Subsequent Pool Student Loans") and on or prior to the end
of the Funding Period (the "Other Subsequent Student Loans"; and together with
the Subsequent Pool Student Loans and Initial Financed Student Loans, the
"Financed Student Loans") using amounts in certain accounts owned by the Trust
which have been set aside for such purpose. In addition, the Administrator will
perform certain administrative duties on behalf of the Trust pursuant to the
Administration Agreement, dated as of ______________ (as amended and
supplemented from time to time, the "Administration Agreement"), among the
Indenture Trustee, the Trust and the Administrator. The Trust will also be a
party to that certain cap agreement (the "Cap Agreement") between the Trust and
Mellon, as cap provider (in such capacity, the "Cap Provider"), whereunder the
Certificateholders will be entitled, subject to the limitations of the Cap
Agreement, to receive payments from the Cap Provider in the amount of any
Certificateholders' Interest Index Carryover for the Certificates and the Cap
Provider will receive reimbursement for such payments on subsequent Distribution
Dates, but only to the extent funds are available therefor on a subordinated
basis. The Sale and Servicing Agreement, the Indenture (as defined below), the
Trust Agreement, the Administration Agreement and the Cap Agreement are referred
to herein as the "Basic Documents."
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, pursuant to the Indenture (the "Indenture"), dated as of
________________, between the Trust and _________________, as indenture trustee
(the "Indenture Trustee"), the Trust will issue $______________ principal amount
of its Floating Rate Class ___ Asset Backed Notes (the "Class ___ Notes"),
$_____________ principal amount of its Floating Rate Class ___ Asset Backed
Notes (the "Class ___ Notes" and together with the Class ___ Notes, the "Class
__ Notes"), and $_____________ principal amount of its Floating Rate Class __
Asset Backed Notes (the "___________" and, with the Class __ Notes, the
"Notes"). The Notes will be sold pursuant to an underwriting agreement dated the
date hereof (the "Note Underwriting Agreement") between the Seller and the
Representative.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in Appendix A attached hereto.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The Seller
represents and warrants to and agrees with the several Underwriters that:
(i) A registration statement on Form S-3 (Registration No. 333-______)
has been filed with the Securities and Exchange Commission (the
"Commission"), including a related preliminary base prospectus and a
preliminary prospectus supplement, for the registration under the Act of
the offering and sale of the Notes and the Certificates. The Seller may
have filed one or more amendments thereto, each of which amendments has
previously been furnished to the Representative. The Seller will next file
with the Commission (i) after effectiveness of such registration statement,
a final base prospectus and a final prospectus supplement relating to the
Certificates in accordance with Rules 430A and 424(b)(1) or (4) under the
Securities Act of 1933, as amended (the "Act"), or (ii) a final base
prospectus and a final prospectus supplement relating to the Certificates
in accordance with Rules 415 and 424(b)(2) or (5).
The Seller has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Prospectus with respect to the Certificates and the offering thereof. As
filed such final prospectus supplement shall include all Rule 430A
Information, together with all other such required information, with
respect to the Certificates and the offering thereof and, except to the
extent that the Representative 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 base prospectus and preliminary prospectus supplement, if any,
that have previously been furnished to the Representative) as the Seller
has advised the Representative, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
For purposes of this Note Underwriting Agreement (this "Agreement"),
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment, thereto, if any,
was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto. Such
registration statement, as amended at the Effective Time, including all
information deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base Prospectus"
shall mean any prospectus referred to above contained in the Registration
Statement at the Effective Date, including any Preliminary Prospectus
Supplement. "Preliminary Prospectus Supplement" shall mean the preliminary
prospectus supplement to the Base Prospectus which describes the
Certificates and the offering thereof and is used prior to filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement relating to
the Certificates that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus or, if no filing pursuant
to Rule 424(b) is required, shall mean the prospectus supplement relating
to the Certificates, including the Base Prospectus, included in the
Registration Statement at the Effective Date. "Rule 430A Information" means
information with respect to the Certificates and the offering of the
Certificates permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. "Rule 415," "Rule 424," "Rule
430A" and "Regulation S-K" refer to such rules or regulations under the
Act. Any reference herein to the Registration Statement, a Preliminary
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, if any, pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the Effective Date
of the Registration Statement or the issue date of the Base Prospectus,
such Preliminary Prospectus Supplement or the Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus Supplement or the 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 Base Prospectus, to any Preliminary Prospectus Supplement
or the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(ii) As of the Closing Date (as defined below), Mellon's
representations and warranties in the Basic Documents to which it is a
party and in the Guarantee Agreement to which _______ is a party will be
true and correct in all material respects.
(iii) This Agreement has been duly authorized, executed and delivered
by the Seller. The execution, delivery and performance of this Agreement
and the issuance and sale of the Certificates and compliance with the terms
and provisions hereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any agreement
or instrument to which the Seller is a party or by which the Seller is
bound or to which any of the properties of the Seller is subject which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Seller has full corporate power and
authority to cause the Trust to authorize, issue and sell the Certificates,
all as contemplated by this Agreement.
(iv) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from the Seller or any of its subsidiaries any brokerage or
finder's fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement.
(v) All legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required.
(vi) The Seller's assignment and delivery of the Financed Student
Loans to the Eligible Lender Trustee on behalf of the Trust as of the
Closing Date will vest in the Eligible Lender Trustee on behalf of the
Trust all the Seller's right, title and interest therein, or will result in
a first priority perfected security interest therein, in either case
subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(vii) The Trust's assignment of the Financed Student Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the holders of the Notes, a first priority
perfected security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(viii) The Seller is not, and after giving effect to the offering and
sale of the Certificates, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
United States Investment Company Act of 1940, as amended (the "Investment
Company Act");
(b) The Seller hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only information furnished to the Seller by the
Underwriters through the Representative specifically for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, are the statements relating to stabilization on
the inside cover page of, and the statements under the caption "Underwriting"
in, the preliminary prospectus and the Prospectus.
3. PURCHASE, SALE AND DELIVERY OF THE CERTIFICATES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to cause the Trust
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, at a purchase price of 100% of the
principal amount of the Certificates the respective principal amounts of
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto. In addition, the Seller agrees to cause the Underwriters to be paid an
aggregate structuring fee in connection with the structuring of the Notes and
the Certificates of $_____________.
The Seller will deliver the Certificates to the Representative for the
respective accounts of the Underwriters, against payment of the purchase price
to or upon the order of the Seller by wire transfer or check in Federal (same
day) Funds, at the office of ________________________, _______________,
___________, _________, on ____________________, or at such other time not later
than seven full business days thereafter as the Representative and the Seller
determine, such time being herein referred to as the "Closing Date." The
Certificates to be so delivered will be initially represented by one or more
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and participating
members thereof. Definitive Certificates will be available only under the
limited circumstances specified in the Trust Agreement.
4. OFFERING BY THE UNDERWRITERS. It is understood that, after the
Registration Statement becomes effective, the several Underwriters propose to
offer the Certificates for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. COVENANTS OF THE SELLER. The Seller covenants and agrees with the
several Underwriters that:
(a) Prior to the termination of the offering of the Certificates, the
Seller will not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Seller has furnished the Representative a copy for
its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, 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 Seller will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in
accordance with the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of such
timely filing.
(b) The Seller will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and will not effect
such amendment or supplementation without the consent of the Representative
prior to the Closing Date, and thereafter will not effect any such amendment or
supplementation to which the Representative reasonably objects; the Seller will
also advise the Representative promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement (if
the Effective Time is subsequent to the execution of this Agreement) and of any
amendment or supplement to the Registration Statement or the Prospectus and 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 the Seller will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible the lifting of any issued
stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Exchange Act, the Seller promptly
will prepare and file, or cause to be prepared and filed, with the Commission an
amendment or supplement which will correct such statement or omission, or an
amendment or supplement which will effect such compliance. Neither the consent
of the Representative to, nor the delivery of the several Underwriters of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trust to make generally available
to the holders of the Certificates an earnings statement of the Trust covering a
period of at least twelve months beginning after the Effective Date which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
applicable Rules and Regulations thereunder. 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 Trust's
fiscal year, "Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two 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 Representative reasonably requests.
(f) The Seller will arrange for the qualification of the Certificates
for sale under the laws of the States of _________, __________, __________,
__________, and _________________________ and will continue such qualifications
in effect so long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as the several Underwriters shall cease
to maintain a secondary market in the Certificates, whichever occurs first, the
Seller will deliver to the Representative the annual statements of compliance
and the annual independent certified public accountants' reports furnished to
the Indenture Trustee or the Eligible Lender Trustee pursuant to the Sale and
Servicing Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Certificates is outstanding, the Seller will
furnish to the Representative (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to the holders of the
Certificates or filed with the Commission on behalf of the Trust pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order
of the Commission thereunder and (ii) from time to time, any other information
concerning the Seller as the Representative may reasonably request only insofar
as such information reasonably relates to the Registration Statement or the
transactions contemplated by the Basic Documents.
(i) On or before the Closing Date, the Seller shall xxxx its
accounting and other records, if any, relating to the Initial Financed Student
Loans and shall instruct the Master Servicer (which shall cause each
Sub-Servicer) to xxxx the computer records of the Master Servicer (or such
Sub-Servicer) relating to the Financed Student Loans to show the absolute
ownership by the Eligible Lender Trustee on behalf of the Trust of the Financed
Student Loans, and from and after the Closing Date the Seller shall not and
shall require that the Master Servicer (which shall ensure that any
Sub-Servicer) shall not take any action inconsistent with the ownership by the
Eligible Lender Trustee on behalf of the Trust of such Initial Financed Student
Loans, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional at the time of the issuance of the Certificates upon
the furnishing of documents or the taking of any other actions by the Seller
agreed upon on or prior to the Closing Date, the Seller shall furnish such
documents and take any such other actions. A copy of any such document shall be
provided to the Representative at the time it is delivered to the rating
agencies.
(k) For the period beginning on the date of this Agreement and ending
90 days after the Closing Date, neither the Seller nor any trust originated,
directly or indirectly, by the Seller will, without the prior written consent of
the Representative, offer to sell or sell notes (other than the Notes)
collateralized by, or certificates (other than the Certificates) evidencing an
ownership interest in, student loans; PROVIDED, HOWEVER, that this shall not be
construed to prevent the sale of student loans by the Seller.
(l) The Seller will apply the net proceeds of the offering and the
sale of the Certificates and the Notes that it receives in the manner set forth
in the Prospectus under the caption "Use of Proceeds."
(m) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the printing and filing of
the documents (including the Registration Statement and Prospectus) (ii) the
preparation, issuance and delivery of the Certificates to the Representative,
(iii) the fees and disbursements of the Seller's counsel and accountants, (iv)
the qualification of the Certificates under securities laws in accordance with
the provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for the Representative in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, if
any is requested, (v) the printing and delivery to the Representative of copies
of the Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Representative of copies of any blue sky
or legal investment survey prepared in connection with the Certificates, (vii)
any fees charged by rating agencies for the rating of the Certificates, (viii)
the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. and (ix) the fees and expenses
of ________________________ in its role as counsel to the Trust incurred as a
result of providing the opinions required by Section 6(h) hereof.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Seller herein, to the accuracy of the written statements of officers of the
Seller made pursuant to the provisions of this Section, to the performance by
the Seller of its obligations hereunder and to the following additional
conditions precedent:
(a) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than 6:00
p.m., New York City time, on the date of this Agreement or such later time or
date as shall have been consented to by the Representative.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement, the Prospectus and any supplements thereto shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
5(a) hereof. Prior to the Closing Date, 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, to the knowledge of
the Seller or the Representative, shall be contemplated by the Commission.
(c) The Representative shall have received a letter, dated on or prior
to the Closing Date of ___________________ on behalf of the Seller confirming
that such accountants are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder, and
substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance reasonably satisfactory to
the Representative and its counsel.
(d) 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
the Trust or Mellon which, in the judgment of the Representative, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates; (ii) any downgrading in the rating of
any debt securities of Mellon by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of Mellon (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; (iv) any suspension of trading of any
securities of Mellon on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by Federal or New York authorities; or (vi) any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (vi) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Certificates on the terms and in the manner
contemplated in the Prospectus.
(e) The Representative shall have received an opinion of
__________________, General Counsel of Mellon, as counsel for Mellon, as the
Seller, the Master Servicer and the Administrator, dated the Closing Date, in
the form attached hereto as Exhibit A, or as is otherwise satisfactory in form
and substance to the Representative and its counsel.
(f) The Representative shall have received an opinion of
_____________________, counsel to the Seller, dated the Closing Date, in the
form attached hereto as Exhibit B, or as is otherwise satisfactory in form and
substance to the Representative and its counsel.
(g) [Reserved].
(h) The Representative shall have received an opinion addressed to the
several Underwriters of __________________________, in its capacity as Federal
tax and ERISA counsel for the Trust, to the effect that the statements in the
Prospectus under the headings "Summary of Terms--Tax Consequences" and "Federal
Tax Consequences for Trusts for which a Partnership Election is Made--Tax
Consequences to Holders of the Certificates" accurately describe the material
Federal income tax consequences to holders of the Certificates, and the
statements in the Prospectus under the headings "Summary of Terms--ERISA
Considerations" 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 accurately describe the material
consequences to holders of the Certificates under ERISA. Xxxxxxxx Xxxx & Xxxxx
LLP, in its capacity as special counsel to the Trust, shall have delivered an
opinion with respect to the characterization of the transfer of the Initial
Financed Student Loans.
(i) The Representative shall have received an opinion addressed to the
several Underwriters of ___________________________, in its capacity as special
counsel to the several Underwriters, dated the Closing Date, with respect to the
validity of the Certificates and the Notes and such other related matters as the
Representative shall reasonably require and the Seller shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(j) The Representative shall have received an opinion of
_______________________________, special student loan counsel to the
Representative and, in the case of clause (iii) below, special student loan
counsel to the Eligible Lender Trustee, dated the Closing Date, satisfactory in
form and substance to the Representative, to the effect that:
(i) the agreements implementing the Program, (including the
Coordination Agreements) and the Relevant Documents (as defined in the
opinion), and the transactions contemplated by the Relevant Documents,
conform in all material respects to the applicable requirements of the
Higher Education Act, and that, upon the due authorization, execution and
delivery of the Relevant Documents and the consummation of such
transactions, the Financed Federal Loans, legal title to which will be held
by the Eligible Lender Trustee on behalf of the Trust, will qualify,
subject to compliance with all applicable origination and servicing
requirements, for all applicable federal assistance payments, including
federal reinsurance and federal interest subsidies and special allowance
payments;
(ii) such counsel has examined the Registration Statement and the
Prospectus, and nothing has come to such counsel's attention that would
lead such counsel to believe that, solely with respect to the Higher
Education Act and the student loan business, the Registration Statement or
the Prospectus or any amendment or supplement thereto as of the respective
dates thereof or on the Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein not misleading; and
(iii) the Eligible Lender Trustee is an "eligible lender" as such term
is defined in Section 435(d) of the Higher Education Act for purposes of
holding legal title to the Financed Federal Loans.
(k) The Representative shall have received an opinion of counsel to
______, dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) ________ has been duly organized and is validly existing as an
agency of the ____________________________ in good standing under the laws
thereof 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 _____ Sub-Servicing
Agreement and the Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to ________'s obligations under such Guarantee Agreement) to which
it is a party, and had at all relevant times, and now has, the power,
authority and legal right to service the Financed Student Loans it is
servicing, to guarantee the Financed Federal Loans covered by such
Guarantee Agreement and to receive, subject to compliance with all
applicable conditions, restrictions and limitations of the Higher Education
Act, reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) ________ is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Financed Student Loan or _________'s obligation
under its Guarantee Agreement unenforceable by or on behalf of the Trust.
(iii) Each of the ______ Sub-Servicing Agreement and the Guarantee
Agreement to which it is a party (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent relevant to
_______'s obligations under such Guarantee Agreement) to which ______ is a
party has been duly authorized, executed and delivered by ______ and is the
legal, valid and binding obligation of _____ enforceable against ______ in
accordance with its terms, notwithstanding the existence of any doctrine of
sovereign immunity except (x) 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 (y) 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 _______ of the _______ Sub-
Servicing Agreement or the Guarantee Agreement to which it is a party, nor
the consummation by _______ of the transactions contemplated therein nor
the fulfillment of the terms thereof by _______ will conflict with, result
in a breach, violation or acceleration of, or constitute a default under,
any term or provision of the certificate of incorporation or by-laws of
_______ or of any indenture or other agreement or instrument to which
_______ is a party or by which _______ is bound, or result in a violation
of or contravene the terms of any statute, order or regulation applicable
to _______ of any court, regulatory body, administrative agency or
governmental body having jurisdiction over _______.
(v) There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened against
_______ before or by any governmental authority that might materially and
adversely affect the performance by _______ of its obligations under, or
the validity or enforceability of, the _______ Sub-Servicing Agreement or
the Guarantee Agreement (or the agreements with the Department under
Section 428 of the Higher Education Act to the extent relevant to _______'s
obligations under such Guarantee Agreement) to which it is a party.
(vi) Nothing has come to such counsel's attention that would lead such
counsel to believe that the representations and warranties of _______
contained in the _______ Sub-Servicing Agreement are other than as stated
therein.
(l) The Representative shall have received an opinion of counsel to
__________, dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) _______ has been duly organized and is validly existing as a
____________ corporation in good standing under the laws thereof 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 _______ Sub-Servicing Agreement, and had at all
relevant times, and now has, the power, authority and legal right to
service the Financed Student Loans it is servicing.
(ii) The _______ Sub-Servicing Agreement has been duly authorized,
executed and delivered by _______ and is the legal, valid and binding
obligation of _______ enforceable against _______ in accordance with its
terms, except (x) 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 (y) 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.
(iii) Neither the execution and delivery by _______ of the _______
Sub-Servicing Agreement, nor the consummation by _______ of the
transactions contemplated therein nor the fulfillment of the terms thereof
by _______ will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of
the certificate of incorporation or by-laws of _______ or of any indenture
or other agreement or instrument to which _______ is a party or by which
_______ is bound, or result in a violation of or contravene the terms of
any statute, order or regulation applicable to _______ of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over _______.
(iv) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against _______ before or by any governmental authority that might
materially and adversely affect the performance by _______ of its
obligations under, or the validity or enforceability of, the _______ Sub-
Servicing Agreement.
(v) Nothing has come to such counsel's attention that would lead such
counsel to believe that the representations and warranties of _______
contained in the _______ Sub-Servicing Agreement are other than as stated
therein.
(m) The Representative shall have received an opinion of counsel to
the ______________________________________________________________________ a
_____________________ corporation ("___"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) ___ has been duly incorporated and is validly existing as a
_________ corporation in good standing under the laws of the Commonwealth
of ______________ 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 Guarantee Agreement
(and the agreements with the Department under Section 428 of the Higher
Education Act to the extent relevant to ____'s obligations under such
Guarantee Agreement) to which it is a party, and had at all relevant times,
and now has, the power, authority and legal right to guarantee the Financed
Federal Loans covered by such Guarantee Agreement and to receive, subject
to compliance with all applicable conditions, restrictions and limitations
of the Higher Education Act, reinsurance payments from the Department with
respect to claims paid by it on such Financed Federal Loans.
(ii) ____ is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render ____'s obligation under its Guarantee Agreement to guarantee the
Financed Federal Loans covered thereby unenforceable by or on behalf of the
Trust.
(iii) The Guarantee Agreement (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent relevant to
____'s obligations under such Guarantee Agreement) to which ____ is a party
has been duly authorized, executed and delivered by ____ and is the legal,
valid and binding obligation of ____ enforceable against ____ in accordance
with its terms, except (x) 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 (y) 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 ____ of the Guarantee
Agreement to which it is a party, nor the consummation by ____ of the
transactions contemplated therein nor the fulfillment of the terms thereof
by ____ will conflict with, result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the certificate
of incorporation or by-laws of ____ or of any indenture or other agreement
or instrument to which ____ is a party or by which ____ is bound, or result
in a violation of or contravene the terms of any statute, order or
regulation applicable to ____ of any court, regulatory body, administrative
agency or governmental body having jurisdiction over ____.
(v) There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened against
____ before or by any governmental authority that might materially and
adversely affect the performance by ____ of its obligations under, or the
validity or enforceability of, the Guarantee Agreement (or the agreements
with the Department under Section 428 of the Higher Education Act to the
extent relevant to ____'s obligations under such Guarantee Agreement) to
which it is a party.
(n) The Representative shall have received an opinion of counsel to
__________ ("_____"), dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) _____ has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of __________ 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 Guarantee Agreement (and the agreements
with the Department under Section 428 of the Higher Education Act to the
extent relevant to _____'s obligations under such Guarantee Agreement) to
which it is a party, and had at all relevant times, and now has, the power,
authority and legal right to guarantee the Financed Federal Loans covered
by such Guarantee Agreement and to receive, subject to compliance with all
applicable conditions, restrictions and limitations of the Higher Education
Act, reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) _____ is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render _____'s obligation under its Guarantee Agreement to guarantee the
Financed Federal Loans covered thereby unenforceable by or on behalf of the
Trust.
(iii) The Guarantee Agreement (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent relevant to
_____'s obligations under such Guarantee Agreement) to which _____ is a
party has been duly authorized, executed and delivered by _____ and is the
legal, valid and binding obligation of _____ enforceable against _____ in
accordance with its terms, except (x) 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
(y) 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 _____ of the Guarantee
Agreement to which it is a party, nor the consummation by _____ of the
transactions contemplated therein nor the fulfillment of the terms thereof
by _____ will conflict with, result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the certificate
of incorporation or by-laws of _____ or of any indenture or other agreement
or instrument to which _____ is a party or by which _____ is bound, or
result in a violation of or contravene the terms of any statute, order or
regulation applicable to _____ of any court, regulatory body,
administrative agency or governmental body having jurisdiction over -----.
(v) There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened against
_____ before or by any governmental authority that might materially and
adversely affect the performance by _____ of its obligations under, or the
validity or enforceability of, the Guarantee Agreement (or the agreements
with the Department under Section 428 of the Higher Education Act to the
extent relevant to _____'s obligations under such Guarantee Agreement) to
which it is a party.
(o) [Reserved]
(p) [Reserved]
(q) [Reserved]
(r) [Reserved]
(s) [Reserved]
(t) [Reserved]
(u) The Representative shall have received an opinion of counsel to
the Eligible Lender Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Eligible Lender Trustee is a national banking association duly
incorporated or organized and validly existing under the laws of the United
States.
(ii) The Eligible Lender Trustee has the full corporate trust power to
accept the office of eligible lender trustee under the Trust Agreement and
to enter into and perform its obligations under the Trust Agreement, the
Sale and Servicing Agreement and, on behalf of the Trust, under the
Indenture, the Sale and Servicing Agreement, the Administration Agreement
and the Guarantee Agreements.
(iii) The execution and delivery of the Trust Agreement and the Sale
and Servicing Agreement and, on behalf of the Trust, of the Indenture, the
Sale and Servicing Agreement, the Administration Agreement and the
Guarantee Agreements, and the performance by the Eligible Lender Trustee of
its obligations under the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Administration Agreement and the Guarantee
Agreements have been duly authorized by all necessary action of the
Eligible Lender Trustee and each has been duly executed and delivered by
the Eligible Lender Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of the
Eligible Lender Trustee enforceable against the Eligible Lender Trustee in
accordance with their terms.
(v) The execution and delivery by the Eligible Lender Trustee of the
Trust Agreement and the Sale and Servicing Agreement and, on behalf of the
Trust, of the Indenture, the Sale and Servicing Agreement, the
Administration Agreement and the Guarantee Agreements do not require any
consent, approval or authorization of, or any registration or filing with,
any applicable governmental authority.
(vi) Each of the Certificates has been duly executed and delivered by
the Eligible Lender Trustee, as eligible lender trustee and authenticating
agent. Each of the Notes has been duly executed and delivered by the
Eligible Lender Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Eligible Lender Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement nor the
fulfillment of the terms thereof by the Eligible Lender Trustee will
conflict with, result in a breach or violation of, or constitute a default
under any law or the charter, by-laws or other organizational documents of
the Eligible Lender Trustee or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Eligible
Lender Trustee or any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be applicable to the
Eligible Lender Trustee or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Eligible Lender Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to the
best of such counsel's knowledge after due inquiry, threatened against the
Eligible Lender Trustee (as eligible lender trustee under the Trust
Agreement or in its individual capacity) before or by any governmental
authority that might materially and adversely affect the performance by the
Eligible Lender Trustee of its obligations under, or the validity or
enforceability of, the Trust Agreement or the Sale and Servicing Agreement.
(ix) The execution, delivery and performance by the Eligible Lender
Trustee of the Sale and Servicing Agreement, the Indenture, the Trust
Agreement, the Administration Agreement or any Guarantee Agreement will not
subject any of the property or assets of the Trust or any portion thereof,
to any lien created by or arising under the Eligible Lender Trustee that
are unrelated to the transactions contemplated in such agreements.
(v) The Representative shall have received an opinion of __________,
Delaware counsel to the Trust, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel.
(w) The Representative shall have received an opinion of __________,
counsel to __________ in its capacity as Delaware Trustee under the Trust
Agreement, dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel.
(x) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of Mellon in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of Mellon,
contained in each Basic Document to which it is a party, are true and correct in
all material respects, that Mellon has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements, in whatever capacity it is a party to such agreements, at or prior
to the Closing Date, and that 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 (ii) since
__________, except as may be disclosed in the Prospectus or in such certificate,
no material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Trust, or Mellon, as applicable, has occurred.
(y) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of each of the
Sub-Servicers in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and warranties
of such Sub-Servicer contained in the related Subservicing Agreement are true
and correct in all material respects, and that such Sub-Servicer has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (ii) since
__________, except as may be disclosed in the Prospectus or in such certificate,
no material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of such
Sub-Servicer.
(z) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the States of __________,
__________, __________, __________, __________ and __________, as applicable,
reflecting the transfer of the interest of the Seller in the Financed Student
Loans to the Eligible Lender Trustee on behalf of the Trust and the proceeds
thereof to the Trust and the grant of the security interest by the Trust in the
Financed Student Loans and the proceeds thereof to the Indenture Trustee.
(aa) The Certificates shall be rated "A3" by Xxxxx'x Investors
Service, Inc. ("Moody's"), "A" Fitch IBCA, Inc. ("Fitch"), and "A" Standard and
Poor's, a division of the XxXxxx-Xxxx Companies, Inc. ("S&P") and each a "Rating
Agency"), and no Rating Agency shall have placed any Certificate under
surveillance or review with possible negative implications.
(bb) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by any Rating Agency of the current rating
of any outstanding securities issued or originated by the Seller or any of its
affiliates.
(cc) On the Closing Date, $__________ aggregate principal amount of
the Class ___ Notes, $__________ aggregate principal amount of the Class ___
Notes, and $__________ aggregate principal amount of the Class ___ Notes shall
have been issued and sold.
(dd) _____ shall have furnished to the Representative a certificate of
_____, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to _____ in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit 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.
(ee) _____ shall have furnished to the Representative a certificate of
_____, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to _____ in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit 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.
(ff) ____ shall have furnished to the Representative a certificate of
____, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to ____ in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit 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.
(gg) _____ shall have furnished to the Representative a certificate of
_____, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to _____ in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit 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.
(hh) [Reserved]
(ii) [Reserved]
(jj) [Reserved]
(kk) [Reserved]
(ll) [Reserved]
(mm) Each of the Basic Documents shall have been executed and
delivered by the parties thereto. Each of the Sub-Servicers shall have executed
and delivered the related Sub-Servicing Agreement. Each of the Guarantors shall
have executed and delivered the related Guarantee Agreement.
The Seller will provide or cause to be provided to the Representative
such conformed copies of such of the foregoing opinions, certificates, letters
and documents as the Representative reasonably requests.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Seller will indemnify and
hold each Underwriter harmless against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
(x) the Registration Statement, the Preliminary Prospectus Supplement, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (y) the Prospectus or any amendment or supplement thereto or any related
Preliminary Prospectus Supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Seller will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the Seller
by any Underwriter through the Representative specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly; to indemnify
and hold harmless the Seller against any losses, claims, damages or liabilities
to which the Seller may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in (x) the Registration Statement, the
Preliminary Prospectus Supplement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (y) the Prospectus or any
amendment or supplement thereto or any related Preliminary Prospectus
Supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information relating to
such Underwriter furnished to the Seller by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Seller 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, 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 otherwise than
under subsection (a) or (b) above. 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 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 and approval by the indemnified party of the counsel appointed
by the indemnifying party, 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. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or related actions in the same jurisdiction arising out of the
same general allegations or circumstances unless any such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to or in
conflict with those available to the other indemnified parties and in the
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel. An indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 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 indemnifying 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 the Seller on the
one hand and the Underwriters on the other from the offering of the 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
the Seller 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 the Seller 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 (before deducting expenses) received by the Seller bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Seller or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, except as may be
provided in any agreement among the Underwriters relating to the offering of the
Certificates. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Underwriters in this subsection (d) to contribute are several in
proportion their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller 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 Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Seller, to each officer of the Seller
who has signed the Registration Statement and to each person, if any, who
controls the Seller within the meaning of the Act.
8. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the 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 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Certificates by the Underwriters is not consummated (other than
pursuant to Section 9), the Seller will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Certificates.
9. FAILURE TO PURCHASE THE CERTIFICATES. If any Underwriter or
Underwriters default in their obligations to purchase its portion of the
Certificates hereunder and the aggregate principal amount of the Certificates
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of the Certificates, the
Representative may make arrangements satisfactory to the Seller for the purchase
of such Certificates by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Certificates that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Certificates with respect
to such default or defaults exceeds 10% of the total principal amount of the
Certificates and arrangements satisfactory to the Representative and the Seller
for the purchase of such Certificates by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Seller, except as provided in
Section 7. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter or Underwriters from liability for its default.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at __________, __________, __ _____, Attention:
__________; if sent to the Seller, will be mailed, delivered or telegraphed and
confirmed to it at Mellon Bank, N.A., One Mellon Center, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: _______________; PROVIDED, --------
HOWEVER, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter. Any such notice will
take effect at the time of receipt.
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, and no other
person will have any right or obligations hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representative shall act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. 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.
14. APPLICABLE LAW. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New York.
If the foregoing is in accordance with the understanding of the
Representative of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
MELLON BANK, N.A.
By:
Name:
Title:
The foregoing Certificate Underwriting
Agreement is hereby confirmed and
accepted as of the date first
written above.
------------------------------------
By:
Name:
Title:
Acting on behalf of itself and
as Representative of the
several Underwriters.
SCHEDULE I
UNDERWRITER Certificates
................................ $
Total....................................................... $
APPENDIX A
[See Appendix A to Sale and Servicing Agreement]
EXHIBIT A
[Mellon Bank, N.A. opinion]
EXHIBIT B
[ opinions]
