EXHIBIT 1.1
PEOPLE'S BANK CREDIT CARD MASTER TRUST
$ Floating Rate Class A
Asset Backed Certificates, Series 1998-1
$ Floating Rate Class B
Asset Backed Certificates, Series 1998-1
Underwriting Agreement
GOLDMAN, SACHS & CO.,
as Representatives of
the Class A Underwriters and
as Class B Underwriters
85 Broad Street
New York, New York 10004
_____________, 1998
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 1998-1 (the "Class
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A Certificates") and $_____________ Floating Rate Class B Asset Backed
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Certificates, Series 1998-1 (the "Class B Certificates" and, together with Class
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A Certificates, the "Certificates"). We refer to you herein in your capacities
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as Underwriters and as representatives of the Underwriters as the
"Representatives".
Each Certificate will represent an undivided interest in the People's
Bank Credit Card Master Trust (the "Trust") established pursuant to an Amended
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and
Restated Pooling and Servicing Agreement between the Bank, as Seller and as
Servicer of the credit card receivables transferred to the Trust, and Bankers
Trust Company, as trustee (the "Trustee"), dated as of March 18, 1997, as
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further amended by an amendment thereto dated as of September 24, 1998 (the "P&S
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Agreement"). Additional credit card receivables have been transferred to the
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Trust subsequent to the date of the P&S Agreement pursuant to 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"), Assignment No. 6 between the Bank and the Trustee, dated as of August 1,
1997 ("Assignment No. 6"), Assignment No. 7 between the Bank and the Trustee,
dated as of November 1, 1997 ("Assignment No. 7") and Assignment No. 8 between
the Bank and the Trustee, dated as of February 2, 1998 ("Assignment No. 8").
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 1998-1
Supplement between People's Bank, as Transferor and Servicer, and Bankers Trust
Company as Trustee, dated as of _______, 1998 (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, Assignment No. 6, Assignment No. 7
and Assignment No. 8, the "Pooling and Servicing Agreement"). The property of
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the Trust will include, among other things, receivables (the "Receivables")
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generated from time to time in a portfolio of MasterCard and VISA credit card
accounts, all monies due or to become due in payment of the Receivables,
Recoveries and Interchange allocable to the Trust, the benefits of the funds and
securities on deposit in certain bank accounts with respect to the Certificates
and an interest rate cap agreement for the exclusive benefit of the Class A
Certificateholders and an interest rate cap agreement for the exclusive benefit
of the Class B Certificateholders. In addition, the Certificates will have
the exclusive benefit of an inter-
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est 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, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
1. PSFC and the Bank, each only as to itself, represents and warrants
to, and agrees with, the Underwriters that:
(a) A registration statement in respect of the Certificates has been filed
with the Securities and Exchange Commission (the "Commission"); such
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registration statement and any post-effective amendment thereto, each in the
form heretofore delivered to the Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission and no
stop order suspending 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
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time of filing thereof, conformed in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to either PSFC or the Bank by the
Representatives expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein with respect to the
Prospectus, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to either PSFC or the Bank by the
Representatives expressly for use therein;
(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
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the Bank and the Bank's subsidiaries, taken as a whole, that, in the case of
either such clause (i) or (ii), would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Bank has been duly incorporated and is validly existing as a
Connecticut stock savings bank under the laws of the State of Connecticut, with
all power, authority and legal right necessary to own its properties and
conduct its business as described in the Prospectus, and to enter into and
perform its obligations under this Agreement, the Pooling and Servicing
Agreement, the Assignment and 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
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the Pooling and Servicing Agreement, duly authenticated by the Trustee and paid
for by the Underwriters in accordance with the terms of this Agreement, will
have been duly and validly executed, authenticated, issued and delivered and
will be entitled to the benefits provided by the Pooling and Servicing
Agreement; the Pooling and Servicing Agreement has been duly authorized by the
Bank and, when executed and delivered by the Bank and the Trustee, will
constitute a valid and binding agreement of the Bank, subject (x) to the effect
of any applicable bankruptcy, insolvency, reorganization, moratoriums, and
other similar laws affecting creditors' rights generally, (y) to the effect of
general principles of equity including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law), and (z) to the further
qualification that certain remedial provisions in the Pooling and Servicing
Agreement may be limited or rendered ineffective by the applicable laws of the
State of New York or judicial decisions governing such provisions or holding
their enforcement to be unreasonable under the then existing circumstances (but
there exists in the Pooling and Servicing Agreement or pursuant to applicable
law legally adequate remedies for a realization of the principal benefits
purported to be provided thereby); the Certificates and the Pooling and
Servicing Agreement conform to the descriptions thereof in the Prospectus in
all material respects;
(h) The Assignment 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
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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 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 contemplated in
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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
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having jurisdiction over PSFC, the Bank or any of the Bank's other subsidiaries
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Certificates or the
consummation by PSFC or the Bank, as applicable, of the transactions
contemplated by this Agreement, the Assignment, 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
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the Act and the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery (as specified in Section 4 hereof), the
representations and warranties of the Seller and of the Servicer, made in
Sections 2.3 and 3.3, respectively, of the Pooling and Servicing Agreement
shall be true and correct; and the representations and warranties of the Seller
relating to the Receivables made in Section 2.4 of the Pooling and Servicing
Agreement shall be true and correct; provided, however, that the breach of any
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such representations and warranties in Section 2.4 of the Pooling and Servicing
Agreement shall not be deemed to be a breach hereunder unless such breach
materially adversely affects the interests of the holders of either the Class A
Certificates or the Class B Certificates;
(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);
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(q) Any taxes, fees and other governmental charges imposed upon PSFC or
the Bank or on the assets of the Trust in connection with the execution,
delivery and issuance by the Bank of this Agreement, the Pooling and Servicing
Agreement and the Certificates and which are due at or prior to the Time of
Delivery have been or will have been paid by PSFC or the Bank, as applicable,
at or prior to the Time of Delivery;
(r) The Receivables pledged by the Bank to the Trustee under the Pooling
and Servicing Agreement have an aggregate outstanding balance determined as of
___________ ("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
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forty-eight hours' prior notice to PSFC, shall be delivered by or on behalf of
PSFC to the Underwriters against payment by the Underwriters or on behalf of the
Underwriters of the purchase price therefor, in immediately available funds,
drawn to the order of PSFC, at the office of Mayer, Brown & Platt, 1675
Broadway, New York, New York 10019, at 10:00 a.m. on _________, 1998, 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
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Certificates. Such Certificates 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 Representatives,
which consent shall not be unreasonably delayed or withheld; to prepare and
file the Prospectus in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 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
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order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Certificates for offering and sale under the
securities laws of such jurisdictions as the Underwriters may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Certificates, provided that in 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
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to the Underwriters as many copies as the Underwriters may reasonably request
of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to the Certificateholders, as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Trust (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Bank, Rule 158);
(e) During the period beginning from the date hereof and continuing to and
including the earlier of (i) the termination of trading restrictions on the
Certificates, as notified to PSFC and the Bank by the Representatives, and (ii)
the Time of Delivery, not to offer, sell, contract to sell or otherwise dispose
of any securities of PSFC or the Bank or a trust formed by the Bank which
mature more than one year after the Time of Delivery and which are
substantially similar to the Certificates, without the prior written consent of
the Representatives;
(f) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all reports or other written communications (financial
or other) furnished to holders of the Certificates, and deliver to the
Underwriters as soon as they are available, copies of any reports and financial
statements furnished to or filed by PSFC or the Bank with the Commission, or
any national securities exchange on which the Certificates or any class of
securities of the Bank are listed;
(g) So long as any Certificates are outstanding, to furnish to the
Underwriters copies of all such additional information concerning the business
and financial condition of the Trust as the Underwriters may from time to time
reasonably request; and
(h) To the extent, if any, that the rating provided with respect to the
Certificates by Standard & Poor's Ratings Services and Moody's Investors
Service, Inc. or the rating provided with respect to the Collateral Interest by
Fitch IBCA, Inc. is conditional upon
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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.
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
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condition that each of PSFC and the Bank shall have performed all of their
respective obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or, to the knowledge of PSFC, the Bank or the Underwriters,
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) Since the respective dates as of which information is given in the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial position, stockholders'
equity or results of operations of either PSFC or the Bank and its subsidiaries
on a consolidated basis otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriters makes it
impracticable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Registration
Statement;
(c) At the Time of Delivery, each of PSFC and the Bank shall have
furnished to the Underwriters certificates of an executive officer of PSFC or
the Bank, as applicable, as to the accuracy of the representations and
warranties of PSFC or the Bank, as applicable, herein at and as of the Time of
Delivery, as to the performance by PSFC or the Bank of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) through (c) of this Section and as
to such other matters as the Underwriters may reasonably request;
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(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 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
16
in a proceeding in equity or at law), and (z) to the further qualification
that certain remedial provisions in the Pooling and Servicing Agreement may
be limited or rendered ineffective by the applicable laws of the State of New
York or judicial decisions governing such provisions or holding their
enforcement to be unreasonable under the then existing circumstances (but, in
such counsel's opinion, there exists in the Pooling and Servicing Agreement
or pursuant to applicable law legally adequate remedies for a realization of
the principal benefits purported to be provided thereby);
(iv) The Assignment 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
17
judicial decisions governing such provisions or holding their enforcement to
be unreasonable under the then existing circumstances (but there exists in
the Loan Agreement or pursuant to applicable law legally adequate remedies
for a realization of the principal benefits purported to be provided
thereby);
(vi) The Pooling and Servicing Agreement need not be qualified under
the Trust Indenture Act of 1939, as amended; and the Trust is not now, and
immediately following the sale of the Certificates pursuant to this Agreement
will not be, required to register under the 1940 Act;
(vii) Such counsel has participated in the preparation of the
Registration Statement and Prospectus. From time to time, such counsel has
had discussions with the officers and employees of PSFC and the Bank, the
independent accountants of PSFC and the Bank, and employees and
representatives of the Underwriters concerning the information contained in
the Registration Statement and Prospectus. Based thereupon such counsel is
of the opinion that the Registration Statement and the Prospectus (except for
the operating statistics, financial statements, financial schedules and other
financial and operating data included therein, as to which it expresses no
view) comply as to form with the Act and the rules and regulations
thereunder;
(viii) The statements in the Prospectus under "Certain Legal Aspects
of the Receivables," insofar as such statements constitute a summary of the
legal matters, documents or proceedings 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;
18
(ix) The Registration Statement has become effective under the Act,
and the Prospectus has been filed with the Commission pursuant to Rule 424(b)
thereunder in the manner and within the time period required by Rule 424(b).
To the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened by the Commission.
Such counsel does not know of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not described and
filed as required;
(x) Such counsel has not independently verified and is not passing
upon, and does not assume any responsibility for, the accuracy, completeness
or fairness (except as set forth in paragraph (viii) above and under the
headings "Prospectus Summary--Tax Status," "Prospectus Summary--ERISA
Considerations," "Certain Federal Income Tax Consequences" and "Certain
Employee Benefit Plan Considerations") of the information contained in the
Registration Statement and Prospectus. Based upon the participation and
discussions described above, no facts have come to such counsel's attention
that cause it to believe that the Registration Statement, as of its effective
date (except for the financial statements, financial schedules and other
financial and operating data included therein as to all of which such counsel
expresses no view), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the Closing Date (except for the
financial statements, financial schedules, and other financial and operating
data included therein as to which such counsel expresses no view) contained
or contains any untrue statement of a material fact or omitted or omits to
state a material fact required to
19
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and
(xi) The Receivables are accounts or general intangibles as defined
in the Uniform Commercial Code.
In rendering such opinion, such counsel shall be entitled to rely as to matters
of fact upon such certificates or other assurances of public officials and such
certificates of one or more officers of PSFC, the Bank and/or the Bank's other
subsidiaries or the legal opinion of the general counsel of PSFC and/or the
Bank as such counsel shall reasonably deem necessary.
(f) 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;
20
(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 Connecticut 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 fail-
21
ure to qualify or to obtain such licenses or approvals would render any
Receivable unenforceable by the Bank or the Trust or would have a material
adverse effect on the Certificateholders or any Enhancement Provider;
(ii) PSFC has been duly incorporated and is validly existing as a
Connecticut corporation in good standing under the laws of the State of
Connecticut, with all power, authority and legal right necessary to own its
properties and conduct its business as described in the Prospectus, and to
enter into and perform its obligations under 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 dis-
22
tribution 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 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,
23
(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 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
24
Closing Date (except for the financial statements, financial schedules, and
other financial data included therein as to which such counsel expresses no
view) contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) On the effective date of the Registration Statement and the effective
date of the most recently filed post-effective amendment to the Registration
Statement and also at the Time of Delivery, KPMG Peat Marwick shall have
furnished to the Underwriters letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Underwriters, containing
statements and information of the type customarily included in accountants'
"comfort letters" and "specified procedures letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus;
(l) At the Time of Delivery, the Underwriters shall have received an
opinion of 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;
25
(iv) assuming the due execution and delivery by the Bank of each of
the Pooling and Servicing Agreement and the Loan Agreement and that each of
the Pooling and Servicing Agreement and the Loan Agreement is the legal,
valid and binding obligation of the Bank, each of the Pooling and Servicing
Agreement and the Loan Agreement constitutes a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
its terms, except as the enforceability thereof may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium, liquidation and other
similar laws affecting the enforceability of creditors' rights generally, and
general principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding at law or in equity) as well as
concepts of reasonableness, good faith and fair dealing;
(v) the Certificates have been duly authenticated by the Trustee
pursuant to the Pooling and Servicing Agreement;
(vi) no approval, authorization or other action by or filing with,
any governmental authority of the United States of America or the State of
New York having jurisdiction over the banking or trust powers of the Trustee
is required in connection with the execution and delivery by the Trustee of
the Pooling and Servicing Agreement or the Loan Agreement or the performance
by the Trustee thereunder; and
(vii) the execution and delivery of the Pooling and Servicing
Agreement and the Loan Agreement and the performance by the Trustee of their
respective terms do not conflict with or result 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
26
_______ counsel to ________________ and of _________________, counsel to
___________________(the "Collateral Interest Holder"), as to the due
authorization, execution and delivery of the Loan Agreement by the Collateral
Interest Holder and the enforceability of the Loan Agreement, in each case in
form and substance satisfactory to the Underwriters and their counsel.
(n) The Underwriters shall have received evidence satisfactory to the
Underwriters that the Class A Certificates have received the rating of AAA by
Standard & Poor's Ratings Services and the rating of Aaa by 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 IBCA, Inc. and such ratings shall not have been
rescinded or lowered, or at the Time of Delivery be under surveillance or
review;
(o) At the Time of Delivery, the Underwriters shall have received one or
more opinions of counsel to _____________________ (the "Interest Rate Cap
Provider"), addressed to you, in form and substance satisfactory to the
Underwriters and their counsel regarding the due authorization, execution,
delivery and enforceability by or against the Interest Rate Cap Provider of the
interest rate cap agreements, to be dated on or prior to _________, 1998,
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
27
clause (iii) in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Certificates on the terms and in the manner contemplated in the
Prospectus;
(q) The Underwriters shall have received evidence satisfactory to the
Underwriters that, on or before the Time of Delivery, UCC-1 financing
statements have been filed in the appropriate filing offices of the State of
Connecticut and such other jurisdictions as counsel to PSFC and the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables;
(r) At the Time of Delivery, the Underwriters shall have received any and
all opinions of counsel and other memoranda prepared by any such counsel to
PSFC and the Bank which have been addressed to or supplied to each Rating
Agency rating the Certificates or the Collateral Interest 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 Representatives and their counsel and
the Underwriters and their counsel shall have received such information,
certificates or documents as the Underwriters or their counsel may reasonably
request.
8. (a) PSFC and the Bank will jointly and severally indemnify and hold
harmless the Underwriters against any losses, claims, damages or liabilities,
28
joint or several, to which the Underwriters may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the 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
29
the Prospectus was corrected in the Prospectus or the Prospectus as then
amended or supplemented.
(b) The Underwriters will indemnify and hold harmless PSFC and the Bank
against any losses, claims, damages or liabilities to which either PSFC or the
Bank may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information 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 indemni-
30
fied party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Any indemnifying party against whom indemnity may be sought
shall not be liable to indemnify any indemnified party under this Section 8 if
any settlement of any such action is effected without such indemnifying party's
consent, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by PSFC and the Bank on the one hand and the Underwriters on the other
from the offering of the Certificates. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall 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
31
of the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by PSFC or the Bank on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. PSFC, the Bank and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Certificates underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which the Underwriters has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of PSFC and the Bank under this Section 8 shall be in
addition to any liability which PSFC and the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriters within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the 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.
32
9. The respective indemnities, agreements, representations,
warranties and other statements of PSFC, the Bank and the Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriters or any controlling person of the Underwriters, PSFC, or the
Bank, or any officer or director or controlling person of PSFC or the Bank, and
shall survive delivery of and payment for the Certificates.
10. (a) If any Underwriter shall default in its obligation to
purchase the Class A Certificates which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for themselves as
they may agree or another party or other parties to purchase such Class A
Certificates on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Underwriters do not arrange for the purchase
of such Class A Certificates, then PSFC shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Underwriters to purchase such Class A Certificates on such
terms. In the event that, within the respective periods, the Underwriters notify
PSFC that the Underwriters have so arranged for the purchase of such Class A
Certificates or PSFC notifies the Underwriters that it has so arranged for the
purchase of such Certificates, the Underwriters or PSFC shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and PSFC
and the Bank agree to file promptly any amendments to the Registration Statement
or the Prospectus which in the opinion of the Underwriters may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Class A
Certificates.
(b) If, after giving effect to any arrangements for the purchase of
the Class A Certificates of a defaulting Underwriter by the non-defaulting
Underwriters and PSFC as provided in subsection (a) above, the
33
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 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 Goldman, Sachs & Co., at 85
34
Broad Street, New York, New York 10004, Attention: Registration Department; 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 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
35
issue or pass on in the United Kingdom any document received by it in connection
with the issue of the Certificates to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements)(Exemptions) Order 1996 or who is a person to whom the document
may otherwise lawfully be issued or passed on; (b) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986 of
Great Britain with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom; and (c) if such
Underwriter is an authorized person under the Financial Services Act 1986, it
has only promoted and shall only promote (as that term is defined in Regulation
1.02 of the Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United 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: Dennis Colwell
Title: President
PEOPLE'S BANK
By:
-----------------------------
Name: Michael J. Ciborowski
Title: Vice President
Accepted as of the date hereof:
- --------------------------
GOLDMAN, SACHS & CO.,
as Representatives on
behalf of the Class A
Underwriters and as
Class B Underwriters
37
SCHEDULE A
----------
Aggregate
Principal
Amount of the
Underwriter Class A
- ------------- Certificates
------------
$
$
$
$
-----------
----
$
Aggregate
Principal
Underwriter Amount of the
- ------------- Class B
Certificates
-------------
$
38