Exhibit 1.1
PEOPLE'S BANK CREDIT CARD MASTER TRUST
$__________ Floating Rate Class A
Asset Backed Certificates, Series 1997-2
$__________ Floating Rate Class B
Asset Backed Certificates, Series 1997-2
Underwriting Agreement
J.P. Morgan Securities Inc.,
as Representative of
the Class A Underwriters and
as Class B Underwriter
60 Wall Street
New York, New York 10260
September __, 1997
Dear Sirs:
People's Structured Finance Corp., a Connecticut corporation ("PSFC")
and a wholly owned subsidiary of People's Bank, a Connecticut stock savings bank
(the "Bank"), proposes, subject to the terms and conditions stated herein, to
sell to the underwriters listed on Schedule A hereto (the "Underwriters"), an
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aggregate of $__________ principal amount of People's Bank Credit Card Master
Trust Floating Rate Class A Asset Backed Certificates, Series 1997-2 (the "Class
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A Certificates") and $__________ Floating Rate Class B Asset Backed
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Certificates, Series 1997-2 (the "Class B Certificates" and, together with Class
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A Certificates, the "Certificates"). We refer to you herein in your capacities
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as an Underwriter and as representative of the Underwriters as the
"Representative".
Each Certificate will represent an undivided interest in the People's
Bank Credit Card Master Trust (the "Trust") established pursuant to an Amended
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and Restated Pooling and Servicing Agreement between the
Bank, as Seller and as Servicer of the credit card receivables transferred to
the Trust, and Bankers Trust Company, as trustee (the "Trustee"), dated as of
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March 18, 1997, as amended and restated (the "P&S Agreement"). Additional
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credit card receivables have been transferred to the Trust subsequent to the
date of the P&S Agreement pursuant to Assignment No. 1 between the Bank and the
Trustee, dated as of October 4, 1994 ("Assignment No. 1"), Assignment No. 2
between the Bank and the Trustee, dated as of July 14, 1995 ("Assignment No.
2"), Assignment No. 3 between the Bank and the Trustee, dated as of May 1, 1996
("Assignment No. 3"), Assignment No. 4 between the Bank and the Trustee, dated
as of October 1, 1996 ("Assignment No. 4"), Assignment No. 5 between the Bank
and the Trustee, dated as of May 1, 1997 ("Assignment No. 5") and Assignment No.
6 between the Bank and the Trustee, dated as of August 1, 1997 ("Assignment No.
6"). The Bank assigned to PSFC all of the Bank's right, title and interest in,
to and under the Exchangeable Seller Certificate pursuant to the Assignment and
Assumption Agreement (the "Assignment"), dated as of December 15, 1995. The
Certificates will be issued pursuant to the P&S Agreement and the Series 1997-2
Supplement between People's Bank, as Transferor and Servicer, and Bankers Trust
Company as Trustee, dated as of September __, 1997 (the "Series Supplement" and,
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together with the P&S Agreement, Assignment No. 1, Assignment No. 2, Assignment
No. 3, Assignment No. 4, Assignment No. 5 and Assignment No. 6 the "Pooling and
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Servicing Agreement"). The property of the Trust will include, among other
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things, receivables (the "Receivables") generated from time to time in a
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portfolio of MasterCard and VISA credit card accounts, all monies due or to
become due in payment of the Receivables, Recoveries and Interchange allocable
to the Trust, the benefits of the funds and securities on deposit in certain
bank accounts with respect to the Certificates and an interest rate cap
agreement for the exclusive benefit of the Class A Certificateholders and an
interest rate cap agreement for the exclusive benefit of the Class B
Certificateholders. In addition, the Certificates will have the exclusive
benefit of an interest in the Trust to be issued simultaneously with the
Certificates in the initial principal amount of $__________________ (the
"Collateral Interest"), which is subordinate to the Class A Certificates and the
Class B Certificates. To the extent not defined herein, capital-
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ized terms used herein have the meanings assigned in the Pooling and Servicing
Agreement.
1. PSFC and the Bank, each only as to itself, represents and warrants
to, and agrees with, the Underwriters that:
(a) A registration statement in respect of the Certificates has been
filed with the Securities and Exchange Commission (the "Commission"); such
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registration statement and any post-effective amendment thereto, each in the
form heretofore delivered to the Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission and no
stop order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to PSFC's or
the Bank's knowledge, as applicable, threatened by the Commission (any
preliminary prospectus included in such registration statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
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hereinafter called a "Preliminary Prospectus"; the various parts of such
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registration statement, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof
and deemed by virtue of Rule 430A under the Act to be part of the registration
statement at the time it was declared effective, each as amended at the time
such part of the registration statement became effective, being hereinafter
called the "Registration Statement"; and such final prospectus, in the form
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first filed pursuant to Rule 424(b) under the Act, being hereinafter called the
"Prospectus");
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(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated
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therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to either PSFC or the Bank by the Representative expressly for use
therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein with respect to the
Prospectus, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to either PSFC or the Bank by the
Representative expressly for use therein;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of either
PSFC or the Bank and any of the Bank's subsidiaries, on a consolidated basis,
and (ii) neither PSFC nor the Bank or any of the Bank's subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary
course of business) material to PSFC or the Bank and the Bank's subsidiaries,
taken as a whole, that, in the case of either such clause (i) or (ii), would
reasonably be expected to materially adversely affect the interests of the
holders of the
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Certificates, otherwise than as set forth or contemplated in the Prospectus;
(e) The Bank has been duly incorporated and is validly existing as a
Connecticut stock savings bank under the laws of the State of Connecticut, with
all power, authority and legal right necessary to own its properties and
conduct its business as described in the Prospectus, and to enter into and
perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Assignment and the Loan Agreement, and had at all relevant
times, and now has, the power, authority and legal right to acquire, own and
sell the Receivables, and is duly qualified to do business and is in good
standing as a foreign corporation (or is exempt from such requirements), and
has obtained all necessary licenses and approvals with respect to the Bank in
each jurisdiction in which failure to qualify or to obtain such licenses or
approvals would render any Receivable unenforceable by the Bank or the Trust or
would have a material adverse effect on the Certificateholders, or any
Enhancement Provider;
(f) PSFC has been duly incorporated and is validly existing as a
Connecticut corporation in good standing under the laws of the State of
Connecticut, with all power, authority and legal right necessary to own its
properties and conduct its business as described in the Prospectus, and to
enter into and perform its obligations under this Agreement and the Assignment
and had at all relevant times, and now has, the power, authority and legal
right to acquire, own and exchange the Exchangeable Seller Certificate, and is
duly qualified to do business and is in good standing as a foreign corporation
(or is exempt from such requirements), and has obtained all necessary licenses
and approvals in each jurisdiction in which failure to qualify or to obtain
such licenses or approvals would have a material adverse effect on the
Certificateholders or any Enhancement Provider;
(g) The Certificates have been duly authorized and, when executed,
issued and delivered pursuant to the Pooling and Servicing Agreement, duly
authenticated by the Trustee and paid for by the Underwriters in accordance
with the terms of this Agreement, will have been duly and validly executed,
authenticated, issued
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and delivered and will be entitled to the benefits provided by the Pooling and
Servicing Agreement; the Pooling and Servicing Agreement has been duly
authorized by the Bank and, when executed and delivered by the Bank and the
Trustee, will constitute a valid and binding agreement of the Bank, subject (x)
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratoriums, and other similar laws affecting creditors' rights generally, (y)
to the effect of general principles of equity including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law), and (z)
to the further qualification that certain remedial provisions in the Pooling
and Servicing Agreement may be limited or rendered ineffective by the
applicable laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the then
existing circumstances (but there exists in the Pooling and Servicing Agreement
or pursuant to applicable law legally adequate remedies for a realization of
the principal benefits purported to be provided thereby); the Certificates and
the Pooling and Servicing Agreement conform to the descriptions thereof in the
Prospectus in all material respects;
(h) The Assignment has been duly authorized, executed and delivered
by PSFC and the Bank, as applicable, and constitutes a valid and binding
agreement of PSFC and the Bank, subject to the effect of (x) any applicable
bankruptcy, insolvency, reorganization, moratoriums, and other similar laws
affecting creditors' rights generally and (y) general principles of equity
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law);
(i) The Loan Agreement has been duly authorized by the Bank and when
executed and delivered by the Bank, the Trustee, the Collateral Interest Holder
and the Agent, will constitute a valid and binding agreement of the Bank,
subject (x) to the effect of any applicable bankruptcy, insolvency,
reorganization, moratoriums, and other similar laws affecting creditors' rights
generally,(y) to the effect of gener-
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al principles of equity including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered
in a proceeding in equity or at law), and (z) to the further qualification that
certain remedial provisions in the Loan Agreement may be limited or rendered
ineffective by the applicable laws of the State of New York or judicial
decisions governing such provisions or holding their enforcement to be
unreasonable under the then existing circumstances (but there exists in the
Loan Agreement or pursuant to applicable law legally adequate remedies for a
realization of the principal benefits purported to be provided thereby);
(j) This Agreement has been duly authorized, executed and delivered
by the Bank and PSFC;
(k) The issuance and sale of the Certificates and the compliance by
PSFC and the Bank, as applicable, with all of the provisions of the
Certificates, this Agreement, the Pooling and Servicing Agreement, the
Assignment and the Loan Agreement, as applicable, and the consummation of the
transactions herein and therein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation of any lien, mortgage, pledge, charge,
security interest or encumbrance (collectively, "Liens"), other than as
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contemplated in or permitted by the Pooling and Servicing Agreement, the Loan
Agreement or the Assignment, upon any property or assets of PSFC or the Bank,
as applicable, pursuant to, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which PSFC, the
Bank or any of the Bank's other subsidiaries is a party or by which any of them
is bound or to which any of the property or assets of PSFC, the Bank or any of
the Bank's other subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
PSFC, or of the Articles of Incorporation or By-laws of the Bank, as
applicable, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over PSFC, the Bank or any of
the Bank's other subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or
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governmental agency or body is required for the issue and sale of the
Certificates or the consummation by PSFC or the Bank, as applicable, of the
transactions contemplated by this Agreement, the Assignment, the Loan Agreement
or the Pooling and Servicing Agreement, except the filing of Uniform Commercial
Code financing statements with respect to the Receivables, the registration
under the Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Certificates by the Underwriters;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which either PSFC or the Bank, as
applicable, is a party or of which any property of either PSFC or the Bank is
the subject which are reasonably probable of adverse determination and which,
if determined adversely to PSFC or the Bank, as applicable, would have a
material adverse effect on the financial position, stockholders' equity or
results of operations of PSFC or the Bank or which could interfere with or
adversely affect the consummation of the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement or the
Assignment; and, to the best of PSFC's and the Bank's knowledge, as applicable,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others except as set forth in or contemplated by the
Prospectus;
(m) Neither PSFC nor the Bank or any of the Bank's other affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(n) KPMG Peat Marwick, which have reviewed the statistical data
included in the Registration Statement, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery (as specified in Section 4 hereof), the
representations and warranties of the Seller and of the Servicer, made in
Sections 2.3
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and 3.3, respectively, of the Pooling and Servicing Agreement shall be true and
correct; and the representations and warranties of the Seller relating to the
Receivables made in Section 2.4 of the Pooling and Servicing Agreement shall be
true and correct; provided, however, that the breach of any such
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representations and warranties in Section 2.4 of the Pooling and Servicing
Agreement shall not be deemed to be a breach hereunder unless such breach
materially adversely affects the interests of the holders of either the Class A
Certificates or the Class B Certificates;
(p) At the time of execution and delivery of the Pooling and
Servicing Agreement, the Bank had good and marketable title to the Receivables
transferred to the Trustee pursuant thereto, free and clear of any Liens (other
than as contemplated in the Pooling and Servicing Agreement or the Assignment),
and will not have assigned to any Person any of its right, title or interest in
the Receivables or in such Pooling and Servicing Agreement (other than as
contemplated in the Pooling and Servicing Agreement or the Assignment) and PSFC
will not have assigned to any Person any of its right, title or interest in the
Certificates being issued pursuant to the Pooling and Servicing Agreement
(other than as contemplated in the Pooling and Servicing Agreement); the Bank
had at such time the power and authority to transfer the Receivables to the
Trustee; PSFC has on the date hereof the power and authority to transfer the
Certificates to the Underwriters, and, upon execution and delivery to the
Trustee of the Series Supplement and execution, authentication and delivery to
the Underwriters of the Certificates, the Trustee will have good and marketable
title to or a perfected security interest in the Receivables and the
Underwriters, upon payment of the purchase price of the Certificates, will have
good and marketable title to the Certificates, in each case free and clear of
any Liens (other than Liens created by the Underwriters and other than as
contemplated in the Pooling and Servicing Agreement or the Assignment);
(q) Any taxes, fees and other governmental charges imposed upon PSFC
or the Bank or on the assets of the Trust in connection with the execution,
delivery and issuance by the Bank of this Agreement, the Pooling and Servicing
Agreement and the Certificates and which
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are due at or prior to the Time of Delivery have been or will have been paid by
PSFC or the Bank, as applicable, at or prior to the Time of Delivery;
(r) The Receivables pledged by the Bank to the Trustee under the
Pooling and Servicing Agreement have an aggregate outstanding balance
determined as of ______________, 1997 ("the Series Cut-Off Date"), in
accordance with the Pooling and Servicing Agreement of not less than
$___________________;
(s) The Trust is not an "investment company" or a company "controlled
by" an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act"); and
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(t) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
2. Subject to the terms and conditions herein set forth, PSFC agrees
to sell and deliver to the Underwriters, and the Underwriters agree, severally
and not jointly, to purchase from PSFC the number and type of Certificates set
forth in Schedule A opposite the name of each such Underwriter. The Class A
Certificates being purchased by the Underwriters hereunder are to be purchased
at a purchase price equal to _____% of the principal amount thereof. The Class
B Certificates being purchased by the Underwriters hereunder are to be purchased
at a purchase price equal to _____% of the principal amount thereof.
3. Upon the authorization by PSFC of the release of the Certificates,
the Underwriters propose to offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
4. The Certificates to be purchased by the Underwriters hereunder, in
definitive or book-entry form, and in such authorized denominations and
registered in such names as the Underwriters may request upon at least forty-
eight hours' prior notice to PSFC, shall be delivered by or on behalf of PSFC to
the Underwriters against payment by the Underwriters or on behalf of the
Underwriters of the purchase price therefor, in immediately available funds,
drawn to the order of PSFC, at the
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office of Mayer, Brown & Platt, 1675 Broadway, New York, New York 10019, at
10:00 a.m. on September __, 1997, or at such other place and time and date as
the Underwriters and PSFC may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Certificates. Such Certificates
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will be made available for checking at least twenty-four hours prior to the Time
of Delivery at the office of Mayer Brown & Platt described above.
5. PSFC and the Bank each agrees with the Underwriters:
(a) To advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement as filed, or the Prospectus, and will not
effect such amendment or supplement without the consent of the Representative,
which consent shall not be unreasonably delayed or withheld; to prepare and
file the Prospectus in a form approved by the Representative and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to advise the
Underwriters, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriters with copies thereof; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Certificates for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
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(b) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Certificates for offering
and sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Certificates, provided that in
connection therewith neither PSFC nor the Bank shall be required to qualify as
a foreign corporation or dealer in securities, or to file a general consent to
service of process, in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as the Underwriters may from time to time reasonably request, and,
if the delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Certificates and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with the
Act, to notify the Underwriters and to prepare and file with the Commission and
furnish without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case the Underwriters
are required to deliver a prospectus in connection with the sales of any of the
Certificates at any time nine months or more after the date of issue of the
Prospectus, upon the request of the Underwriters but at the expense of the
Underwriters, to prepare and deliver to the Underwriters as many copies as the
Underwriters may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
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(d) To make generally available to the Certificateholders, as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Trust (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Bank, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the earlier of (i) the termination of trading restrictions on
the Certificates, as notified to PSFC and the Bank by the Representative, and
(ii) the Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities of PSFC or the Bank or a trust formed by the Bank
which mature more than one year after the Time of Delivery and which are
substantially similar to the Certificates, without the prior written consent of
the Representative;
(f) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all reports or other written communications (financial
or other) furnished to holders of the Certificates, and deliver to the
Underwriters as soon as they are available, copies of any reports and financial
statements furnished to or filed by PSFC or the Bank with the Commission, or
any national securities exchange on which the Certificates or any class of
securities of the Bank are listed;
(g) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all such additional information concerning the business
and financial condition of the Trust as the Underwriters may from time to time
reasonably request; and
(h) To the extent, if any, that the rating provided with respect to
the Certificates by Standard & Poor's Ratings Services and Moody's Investors
Service, Inc. or the rating provided with respect to the Collateral Interest by
Fitch Investors Service, LLP is conditional upon the furnishing of documents or
the taking of any other actions by PSFC or the Bank, PSFC or the Bank, as
applicable, shall furnish such documents and take any such other actions.
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6. PSFC and the Bank each covenants and agrees with the Underwriters
that together they will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the counsel and accountants of PSFC and the Bank,
as applicable, in connection with the registration of the Certificates under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, the Pooling and Servicing Agreement, the Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Certificates; (iii) all expenses in
connection with the qualification of the Certificates for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Certificates;
(v) any cost of preparing the Certificates; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Pooling and Servicing Agreement and the
Certificates; and (vii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all of its
own costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Certificates by it, and any advertising expenses connected
with any offers it may make.
7. The obligations of each of the Underwriters hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of each of PSFC and the Bank herein are, at and
as of the Time of Delivery, true and correct, the condition that each of PSFC
and the Bank shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
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(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or, to the knowledge of PSFC, the Bank or the
Underwriters, threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representative;
(b) Since the respective dates as of which information is given in
the Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial position, stockholders'
equity or results of operations of either PSFC or the Bank and its subsidiaries
on a consolidated basis otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriters makes it
impracticable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Registration
Statement;
(c) At the Time of Delivery, each of PSFC and the Bank shall have
furnished to the Underwriters certificates of an executive officer of PSFC or
the Bank, as applicable, as to the accuracy of the representations and
warranties of PSFC or the Bank, as applicable, herein at and as of the Time of
Delivery, as to the performance by PSFC or the Bank of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) through (c) of this Section and as
to such other matters as the Underwriters may reasonably request;
(d) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, shall have furnished to the Underwriters such opinion or
opinions, dated the Time of Delivery, with respect to the validity of the
Pooling and Servicing Agreement, the Certificates, the
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Registration Statement, the Prospectus, and other related matters as the
Underwriters may reasonably request, and such counsel shall have received from
PSFC or the Bank and their counsel such papers and information as they may
reasonably request from PSFC or the Bank and their counsel to enable them to
pass upon such matters;
(e) Mayer, Brown & Platt, counsel for PSFC and the Bank, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Time of Delivery, in form and substance satisfactory
to the Underwriters and their counsel, substantially to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by each of PSFC and the Bank;
(ii) The Certificates have been duly authorized, executed
and delivered by the Bank and, when duly authenticated in accordance
with the terms of the Pooling and Servicing Agreement and delivered to
and paid for by the Underwriters in accordance with the terms of this
Agreement, will be validly issued and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Bank and constitutes the
legal, valid and binding agreement of the Bank enforceable against the
Bank in accordance with its terms, subject (x) to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors' rights generally, (y) to the
effect of general principles of equity including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law), and (z) to the further qualification that certain remedial
provisions in the Pooling and Servicing Agreement may be limited or
rendered ineffective by the applicable laws of the State of New York
or
16
judicial decisions governing such provisions or holding their
enforcement to be unreasonable under the then existing circumstances
(but, in such counsel's opinion, there exists in the Pooling and
Servicing Agreement or pursuant to applicable law legally adequate
remedies for a realization of the principal benefits purported to be
provided thereby);
(iv) The Assignment has been duly authorized, executed and
delivered by each of PSFC and the Bank and constitutes the legal,
valid and binding agreement of each of PSFC and the Bank enforceable
against PSFC and the Bank in accordance with its terms, subject (x) to
the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditors' rights
generally and (y) to the effect of general principles of equity
including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law);
(v) The Loan Agreement has been duly authorized, executed
and delivered by the Bank and constitutes the legal, valid and binding
agreement of the Bank enforceable against the Bank in accordance with
its terms, subject (x) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and (y) to the effect of general
principles of equity including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law), and (z) to
the further qualification that certain remedial provisions in the Loan
Agreement may be limited or rendered ineffective by the applicable
laws of the State of New York or judicial decisions governing such
provisions or holding their enforcement to be unreasonable under the
then existing circumstances (but there exists in the Loan Agreement or
pursuant to applicable law legally adequate
17
remedies for a realization of the principal benefits purported to be
provided thereby);
(vi) The Pooling and Servicing Agreement need not be
qualified under the Trust Indenture Act of 1939, as amended; and the
Trust is not now, and immediately following the sale of the
Certificates pursuant to this Agreement will not be, required to
register under the 1940 Act;
(vii) Such counsel has participated in the preparation of
the Registration Statement and Prospectus. From time to time, such
counsel has had discussions with the officers and employees of PSFC
and the Bank, the independent accountants of PSFC and the Bank, and
employees and representatives of the Underwriters concerning the
information contained in the Registration Statement and Prospectus.
Based thereupon such counsel is of the opinion that the Registration
Statement and the Prospectus (except for the operating statistics,
financial statements, financial schedules and other financial and
operating data included therein, as to which it expresses no view)
comply as to form with the Act and the rules and regulations
thereunder;
(viii) The statements in the Prospectus under "Certain
Legal Aspects of the Receivables," insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, have been reviewed by such counsel and are
correct in all material respects. Furthermore, insofar as the
statements contained in the Registration Statement purport to
summarize certain provisions of the Certificates and the Pooling and
Servicing Agreement, such statements present summaries of such
provisions that are accurate in all material respects;
(ix) The Registration Statement has become effective under
the Act, and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) thereunder in the man-
18
ner and within the time period required by Rule 424(b). To the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened by the
Commission. Such counsel does not know of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required;
(x) Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness (except as set forth in paragraph
(viii) above and under the headings "Prospectus Summary--Tax Status,"
"Prospectus Summary--ERISA Considerations," "Certain Federal Income
Tax Consequences" and "Certain Employee Benefit Plan Considerations")
of the information contained in the Registration Statement and
Prospectus. Based upon the participation and discussions described
above, no facts have come to such counsel's attention that cause it to
believe that the Registration Statement, as of its effective date
(except for the financial statements, financial schedules and other
financial and operating data included therein as to all of which such
counsel expresses no view), contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus, as of its date and as of the
Closing Date (except for the financial statements, financial
schedules, and other financial and operating data included therein as
to which such counsel expresses no view) contained or contains any
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and
19
(xi) The Receivables are accounts or general intangibles as
defined in the Uniform Commercial Code.
In rendering such opinion, such counsel shall be entitled to rely as to matters
of fact upon such certificates or other assurances of public officials and such
certificates of one or more officers of PSFC, the Bank and/or the Bank's other
subsidiaries or the legal opinion of the general counsel of PSFC and/or the
Bank as such counsel shall reasonably deem necessary.
(f) Mayer, Brown & Platt, counsel for PSFC and the Bank, shall have
furnished to the Underwriters their opinion or opinions, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters and its
counsel, with respect to certain matters relating to the transfer of the
Receivables to the Trust, and the Financial Institutions Reform, Recovery and
Enforcement Act with respect to the effect of receivership of the Bank and with
respect to other related matters in a form previously approved by the
Underwriters and its counsel;
(g) Mayer, Brown & Platt, special tax counsel for the Bank, shall
have furnished to the Underwriters their opinion or opinions, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters, to the
effect that for federal and New York State income tax purposes the Certificates
will be characterized as indebtedness that is secured by the Receivables, and
that the Trust will be treated as a mere security device for Federal and New
York State income tax purposes, and the statements set forth in the Prospectus
under the headings "Prospectus Summary -- Tax Status," "Prospectus Summary --
ERISA Considerations," "Certain Federal Income Tax Consequences" and "Certain
Employee Benefit Plan Considerations" are a fair and accurate summary of the
material tax consequences of the issuance and holding of the Certificates;
(h) Pullman & Comley, LLC, special Connecticut tax counsel for the
Bank, shall have furnished to the Underwriters their opinion, dated the Time of
Delivery and satisfactory in form and substance to the Underwriters and its
counsel, to the effect that for Con-
20
necticut state income tax purposes the Certificates will be characterized as
indebtedness that is secured by the Receivables and that the Trust will be
treated as a mere security device for Connecticut state tax purposes;
(i) Pullman & Comley, LLC, special Connecticut counsel for PSFC and
the Bank, shall have furnished to the Underwriters their opinion or opinions,
dated the Time of Delivery and satisfactory in form and substance to the
Underwriter and its counsel, with respect to the perfection of the Trust's
interest in the Receivables and with respect to the applicability of certain
provisions of Connecticut state banking law with respect to the effect of
receivership of the Bank and with respect to other related matters in a form
previously approved by the Underwriters and its counsel;
(j) William T. Kosturko, general counsel of each of PSFC and the
Bank, shall have furnished to the Underwriters his written opinion, addressed
to the Underwriters and dated the Time of Delivery, in form and substance
satisfactory to the Underwriters and their counsel, substantially to the effect
that:
(i) The Bank has been duly incorporated and is validly
existing as a Connecticut stock savings bank under the laws of the
State of Connecticut, with power, authority and legal right necessary
to own its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement and
the Assignment and had at all relevant times, and now has, the power,
authority and legal right to acquire, own and sell the Receivables,
and is duly qualified to do business and is in good standing as a
foreign corporation (or is exempt from such requirements), and has
obtained all necessary licenses and approvals with respect to the Bank
in each jurisdiction in which failure to qualify or to obtain such
licenses or approvals would render any Receivable unenforceable by
the Bank or the Trust or would have a material adverse effect on the
Certificateholders or any Enhancement Provider;
21
(ii) PSFC has been duly incorporated and is validly
existing as a Connecticut corporation in good standing under the laws
of the State of Connecticut, with all power, authority and legal right
necessary to own its properties and conduct its business as described
in the Prospectus, and to enter into and perform its obligations under
this Agreement and had at all relevant times, and now has, the power,
authority and legal right to acquire, own and exchange the
Exchangeable Seller Certificate, and is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would have a material adverse effect
on the Certificateholders or any Enhancement Provider;
(iii) This Agreement, the Pooling and Servicing Agreement,
the Certificates, the Assignment and the Loan Agreement have been duly
authorized, executed and delivered by the Bank;
(iv) This Agreement and the Assignment have been duly
authorized, executed and delivered by PSFC;
(v) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the performance by the
Bank of its obligations under the Pooling and Servicing Agreement or
the Loan Agreement, or (B) the issuance and sale of the Certificates
or of the Collateral Interest, except such as have been obtained under
the Act and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Certificates
by the Underwriters;
(vi) Neither the execution and delivery of this Agreement
or the Assignment by PSFC and the Bank, or the Certificates, the
Pooling and Servicing Agreement or the Loan
22
Agreement by the Bank, nor the performance by PSFC or the Bank of the
transactions therein contemplated will result in any material
violation of any statute or regulation or any order or decree known to
such counsel of any court or governmental authority binding upon PSFC
or the Bank, as applicable, or their respective property, or conflict
with, or result in a breach or violation of any term or provision of,
or result in a default under any of the terms and provisions of, the
Certificate of Incorporation of PSFC, the Articles of Incorporation of
the Bank, the By-laws of PSFC or the Bank, as applicable, or any
material indenture, loan agreement or other material agreement of PSFC
or the Bank known to such counsel by which PSFC or the Bank is bound,
or result in a violation, or contravene the terms, of any statute or
regulation or, to the knowledge of such counsel, order applicable to
PSFC or the Bank of any court, regulatory body, administrative agency
or governmental body having jurisdiction over PSFC or the Bank, except
such counsel need express no opinion as to any statute, order or
regulation the violation of which would not have any material adverse
effect on PSFC or the Bank or their respective activities or to which
PSFC or the Bank may be subject as a result of the legal or regulatory
status of the addressees of the opinion or as a result of such
Persons' involvement in the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement or the Loan Agreement;
(vii) There are no proceedings or investigations pending
or, to the best knowledge of such counsel, threatened against PSFC or
the Bank, before any governmental authority (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement, the
Loan Agreement, the Certificates or the Assignment, (ii) seeking to
prevent the issuance of the Certificates or of the Collateral Interest
or the consummation of any of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Loan Agreement,
the Certificates or the Assignment, (iii) seeking
23
any determination or ruling that would materially and adversely affect
the performance by PSFC or the Bank of their respective obligations
under this Agreement, the Pooling and Servicing Agreement, the Loan
Agreement or the Assignment (iv) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of this Agreement, the Pooling and Servicing Agreement,
the Loan Agreement, the Certificates or the Assignment, or (v) seeking
to assert any tax liability against the Trust under the United States
Federal, New York State or Connecticut State income tax systems;
(viii) The statements in the Prospectus concerning PSFC and
the Bank and conduct of their respective business have been reviewed
by such counsel and are correct in all material respects; and
(ix) Such counsel has not independently verified and is
not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness (except as set forth in paragraph
(viii) above) of the information contained in the Registration
Statement and Prospectus. Based upon the participation and discussions
described in subsection 7(e)(vii) above, no facts have come to such
counsel's attention that cause him to believe that the Registration
Statement, as of its effective date (except for the financial
statements, financial schedules and other financial and operating data
included therein as to all of which such counsel expresses no view),
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus, as
of its date and as of the Closing Date (except for the financial
statements, financial schedules, and other financial data included
therein as to which such counsel expresses no view) contained or
contains any untrue statement of a material fact or omitted or omits
to state a material
24
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(k) On the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also at the Time of Delivery, KPMG Peat Marwick
shall have furnished to the Underwriters letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to the Underwriters,
containing statements and information of the type customarily included in
accountants' "comfort letters" and "specified procedures letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
(l) At the Time of Delivery, the Underwriters shall have received an
opinion of Seward & Kissel, counsel to the Trustee, dated the Time of Delivery,
and satisfactory in form and substance to the Underwriters and their counsel,
to the effect that:
(i) the Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York;
(ii) the Trustee has full power and authority to execute
and deliver, and to perform its obligations under the Pooling and
Servicing Agreement and the Loan Agreement and to carry out the
transactions contemplated by the Pooling and Servicing Agreement and
the Loan Agreement;
(iii) each of the P&S Agreement, the Assignment, the Series
Supplement and the Loan Agreement has been duly authorized, executed
and delivered by the Trustee;
(iv) assuming the due execution and delivery by the Bank
of each of the Pooling and Servicing Agreement and the Loan Agreement
and that each of the Pooling and Servicing Agreement and the Loan
Agreement is the legal, valid
25
and binding obligation of the Bank, each of the Pooling and Servicing
Agreement and the Loan Agreement constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, reorganization, insolvency,
moratorium, liquidation and other similar laws affecting the
enforceability of creditors' rights generally, and general principles
of equity (regardless of whether the enforcement of such remedies is
considered in a proceeding at law or in equity) as well as concepts of
reasonableness, good faith and fair dealing;
(v) the Certificates have been duly authenticated by the
Trustee pursuant to the Pooling and Servicing Agreement;
(vi) no approval, authorization or other action by or
filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the banking
or trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling and Servicing
Agreement or the Loan Agreement or the performance by the Trustee
thereunder; and
(vii) the execution and delivery of the Pooling and
Servicing Agreement and the Loan Agreement and the performance by the
Trustee of their respective terms do not conflict with or result in a
violation of (A) any United States of America or State of New York law
or regulation governing the banking or trust powers of the Trustee or
(B) the Articles of Incorporation or By-laws of the Trustee;
(m) At the Time of Delivery, the Underwriters shall have received the
favorable written opinions of German counsel to [Name of CIA Holder] and of
[Name of counsel to CIA Holder] counsel to [Name of CIA Holder], New York
branch (the "Collateral Interest Holder"), as to the due authorization,
execution and delivery of the Loan Agreement by the Collateral Interest Holder
and
26
the enforceability of the Loan Agreement, in each case in form and substance
satisfactory to the Underwriters and their counsel.
(n) The Underwriters shall have received evidence satisfactory to the
Underwriters that the Class A Certificates have received the rating of AAA by
Standard & Poor's Ratings Services and the rating of Aaa by Moody's Investors
Service, Inc., the Class B Certificates shall have received the rating of A
from Standard and Poor's Ratings Services and a rating of A2 from Moody's
Investor's Service, Inc. and the Collateral Interest shall have received the
rating of BBB from Fitch Investors Service, L.P. and such ratings shall not
have been rescinded or lowered, or at the Time of Delivery be under
surveillance or review;
(o) At the Time of Delivery, the Underwriters shall have received one
or more opinions of counsel to [Name of Cap Provider] (the "Interest Rate Cap
Provider"), addressed to you, in form and substance satisfactory to the
Underwriters and their counsel regarding the due authorization, execution,
delivery and enforceability by or against the Interest Rate Cap Provider of the
interest rate cap agreements, to be dated on or prior to ________, 1997,
between the Trustee and the Interest Rate Cap Provider (the interest rate cap
agreements are collectively referred to herein as the "Interest Rate Cap"), and
such other matters as the Underwriters or their counsel may reasonably request
regarding the Interest Rate Cap.
(p) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war if the effect of any such event specified in this
clause (iii) in the reasonable 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;
27
(q) The Underwriters shall have received evidence satisfactory to the
Underwriters that, on or before the Time of Delivery, UCC-1 financing
statements have been filed in the appropriate filing offices of the State of
Connecticut and such other jurisdictions as counsel to PSFC and the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables;
(r) At the Time of Delivery, the Underwriters shall have received any
and all opinions of counsel and other memoranda prepared by any such counsel to
PSFC and the Bank which have been addressed to or supplied to each Rating
Agency rating the Certificates or the Collateral Interest relating to, among
other things, the security interest of the Trustee in the Receivables and
certain monies due or to become due with respect thereto, certain bankruptcy
issues and certain matters with respect to the Certificates. Any such opinions
or memoranda shall be addressed to the Underwriters or shall indicate that the
Underwriters may rely on such opinions as though they were addressed to the
Underwriters, and shall be dated the Time of Delivery;
(s) No Pay Out Event or other event or condition, which event or
condition with notice, the passage of time or both would result in a Pay Out
Event, shall have occurred or shall exist with respect to the Certificates at
the Time of Delivery; and
(t) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto and thereto shall be
satisfactory in form and substance to the Representative and its counsel and
the Underwriters and their counsel shall have received such information,
certificates or documents as the Underwriters or their counsel may reasonably
request.
8. (a) PSFC and the Bank will jointly and severally indemnify and
hold harmless the Underwriters against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus,
28
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Underwriters
for any legal or other expenses reasonably incurred by the Underwriters in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that neither PSFC nor the Bank shall
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to either PSFC or the Bank by the Underwriters for use therein;
provided further that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, or in
the Prospectus, the indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any of the Underwriters to the extent that such
loss, claim, damage or liability of such Underwriters results from the fact
that such Underwriter sold Certificates to a person as to whom it shall be
established that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Securities to such person, a copy of
the Prospectus or of the Prospectus as then amended or supplemented, if such
delivery of such Prospectus or such amended or supplemented Prospectus was
required under the Act, and if the Underwriters consented to and approved any
such amendment or supplement to such Prospectus pursuant to Section 5(a) of
this Agreement and if either PSFC or the Bank had previously furnished copies
thereof to such Underwriters and the untrue statement or omission or alleged
untrue statement or omission contained in such Preliminary Prospectus or the
Prospectus was corrected in the Prospectus or the Prospectus as then amended or
supplemented.
(b) The Underwriters will indemnify and hold harmless PSFC and the
Bank against any losses, claims, damages or liabilities to which either PSFC or
the Bank may become subject, under the Act or otherwise, insofar
29
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to either PSFC or the Bank by the
Underwriters expressly for use therein; and will reimburse PSFC and the Bank
for any legal or other expenses reasonably incurred by PSFC or the Bank in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified
30
party, in connection with the defense thereof other than reasonable costs of
investigation. Any indemnifying party against whom indemnity may be sought
shall not be liable to indemnify any indemnified party under this Section 8 if
any settlement of any such action is effected without such indemnifying party's
consent, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by PSFC and the Bank on the one hand and the
Underwriters on the other from the offering of the Certificates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of PSFC and the Bank on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by PSFC and the Bank on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by PSFC bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
PSFC or the Bank on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to
31
information and opportunity to correct or prevent such statement or omission.
PSFC, the Bank and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Certificates underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which the Underwriters has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of PSFC and the Bank under this Section 8 shall
be in addition to any liability which PSFC and the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of PSFC or the Bank and to each
person, if any, who controls PSFC or the Bank within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of PSFC, the Bank and the Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any
32
statement as to the results thereof) made by or on behalf of the Underwriters or
any controlling person of the Underwriters, PSFC, or the Bank, or any officer or
director or controlling person of PSFC or the Bank, and shall survive delivery
of and payment for the Certificates.
10. (a) If any Underwriter shall default in its obligation to
purchase the Class A Certificates which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for themselves as
they may agree or another party or other parties to purchase such Class A
Certificates on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Underwriters do not arrange for the purchase
of such Class A Certificates, then PSFC shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Underwriters to purchase such Class A Certificates on such
terms. In the event that, within the respective periods, the Underwriters
notify PSFC that the Underwriters have so arranged for the purchase of such
Class A Certificates or PSFC notifies the Underwriters that it has so arranged
for the purchase of such Certificates, the Underwriters or PSFC shall have the
right to postpone the Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and PSFC and the Bank agree to file promptly any amendments to the
Registration Statement or the Prospectus which in the opinion of the
Underwriters may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Class A Certificates.
(b) If, after giving effect to any arrangements for the purchase
of the Class A Certificates of a defaulting Underwriter by the non-defaulting
Underwriters and PSFC as provided in subsection (a) above, the aggregate
principal amount of such Class A Certificates which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Class A
Certificates, then PSFC shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Class A Certificates which such
Underwriter
33
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase a pro rata portion of the Class A Certificates of the
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve the defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Class A Certificates of a defaulting Underwriter by the non-defaulting
Underwriters and PSFC as provided in subsection (a) above, the aggregate
principal amount of Class A Certificates which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of all the Class A Certificates, or
if PSFC shall not exercise the right described in subsection (b) above to
require each non-defaulting Underwriter to purchase Securities of the defaulting
Underwriter, then this Agreement shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter, PSFC or the Bank, except for the
expenses to be borne by PSFC, the Bank and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve the defaulting Underwriter from
liability for its default.
11. If either the Class A Certificates or the Class B Certificates
are not delivered by or on behalf of PSFC for any reason as provided herein,
PSFC or the Bank will reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Certificates, but neither PSFC nor the Bank shall
then have any further liability to the Underwriters except as provided in
Section 6 and Section 8 hereof.
12. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to J.P. Morgan Securities Inc., at 60 Wall
Street, New York, New York 10260-0060, Attention: Syndicate Desk; if to PSFC
shall be delivered or sent by mail, telex or facsimile transmission to 850 Main
Street, Bridgeport, Connecticut 06604, Attention: William T. Kosturko, Esq; and
if to the Bank shall be delivered or sent by mail, telex or facsimile
transmission to the
34
address of the Bank set forth in the Registration Statement, Attention: William
T. Kosturko, Esq. Any such statements, request notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, PSFC the Bank and, to the extent provided in
Section 8 and Section 9 hereof, the officers and directors of PSFC and the Bank
and each person who controls PSFC, the Bank or the Underwriters, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Certificates from the Underwriters shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence in this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. Any covenant, provision, agreement or term of this Agreement that
is prohibited or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
18. Each Underwriter represents and agrees that (a) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements)(Exemptions) Order 1996 or who is a person to
whom the document may otherwise lawfully be
35
issued or passed on; (b) it has complied and shall comply with all applicable
provisions of the Financial Services Act 1986 of Great Britain with respect to
anything done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom; and (c) if such Underwriter is an authorized
person under the Financial Services Act 1986, it has only promoted and shall
only promote (as that term is defined in Regulation 1.02 of the Financial
Services (Promotion of Unregulated Schemes) Regulations 1991) to any person in
the United Kingdom the scheme described in the Prospectus if that person is of a
kind described either in Section 76(2) of the Financial Services Act 1986 or in
Regulation 1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
36
If the foregoing is in accordance with your understanding, please sign
and return two counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement among the
Underwriters, the Bank and PSFC.
Very truly yours,
PEOPLE'S STRUCTURED FINANCE CORP.
By:
------------------------
Name:
Title:
PEOPLE'S BANK
By:
------------------------
Name:
Title:
Accepted as of the date hereof:
- --------------------------
J.P. MORGAN SECURITIES INC.,
as Representative on
behalf of the Class A
Underwriters and as
Class B Underwriter
37
SCHEDULE A
----------
Aggregate
Principal
Amount of the
Class A
Underwriter Certificates
- ----------- ---------------
J.P. Morgan Securities Inc. $
$
$-
--------------
$
Aggregate
Principal
Underwriter Amount of the
- ----------- Class B
Certificates
----------------
$
38