MARKET AGENT AGREEMENT
MARKET AGENT AGREEMENT, dated as of November 25, 1997 (the "Agreement"), by
and between Bayerische Landesbank Girozentrale, acting through its New York
Branch ("BLB" or the "Market Agent"), and BRAVO TRUST SERIES 1997-1 (the
"Trust"), a Delaware trust created under a Declaration of Trust and Trust
Agreement dated as of November 25, 1997 between The Bank of New York, as Trustee
(the "Trustee"), and the Holders of BRAVO Trust Series 1997-1 Trust Certificates
(the "Trust Agreement"). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Trust Agreement. This Agreement shall
constitute the "Market Agent Agreement" as defined in the Trust Agreement.
WITNESSETH:
WHEREAS, the Trust desires to retain BLB to render certain services to the
Trust in the manner and on the terms hereinafter set forth;
WHEREAS, BLB desires to provide such services to the Trust on the terms and
conditions hereinafter set forth; and
WHEREAS, the Trustee has been directed to enter into and execute this
Market Agent Agreement with BLB, as the initial Market Agent pursuant to Section
6.01 of the Trust Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, BLB and the Trust hereby agree as follows:
Section 1. RIGHTS AND DUTIES OF THE MARKET AGENT. The Trust hereby employs
BLB to act as the Market Agent for the Trust. As such, BLB shall have the right,
but not the obligation, no later than 30 days prior to the original maturity
date (the "Maturity Date") of the Class A Trust Certificates or any extended
maturity date, to select an extended maturity date (an "Extended Maturity Date")
on which the principal amount of all outstanding Class A Trust Certificates
(including, without limitation, upon any one-year extension of the Funding
Agreement pursuant to Section 8.11 thereof) will be due and payable; no such
Extended Maturity Date shall occur more than 360 days after the Maturity Date or
the then-current Extended Maturity Date, as the case may be, and must occur on
an Interest Payment Date under the Funding Agreement. No Extended Maturity Date
shall be chosen that is beyond the last date on which the Liquidity Agreement is
in full force and effect and the ability and capacity of the
Liquidity Provider to perform fully its obligations thereunder remains
unimpaired. In addition, BLB shall furnish to the Trust all of the services of
the Market Agent set forth herein and in the Trust Agreement. In particular, the
Market Agent shall perform the following services:
a. At any time that the Market Agent selects an Extended Maturity Date for
Class A Trust Certificates, set all of the variable terms that shall be
applicable to such Class A Trust Certificates until the relevant Extended
Maturity Date, including, without limitation:
i. the interest rate applicable to such Certificates until such
Extended Maturity Date;
ii. the payment dates applicable to such Certificates until such
Extended Maturity Date;
iii. the reset dates applicable to such Certificates until such Extended
Maturity Date;
iv. the interest determination dates applicable to such Certificates
until such Extended Maturity Date; and
v. any other terms applicable to such Certificates until such Extended
Maturity Date.
b. Give the Trustee, the Remarketing Agent, and the Rating Agencies notice in
sufficient time for beneficial owners of the relevant Trust Certificates to
be notified, no later than 30 days prior to the Maturity Date or the
then-current Extended Maturity Date, as the case may be, of the new
Extended Maturity Date, the expected rating applicable to such Certificates
until such Extended Maturity Date, and all other variable terms applicable
to such Certificates until such Extended Maturity Date.
BLB hereby accepts such employment and agrees during the term of the Trust
Certificates to render such services and to assume the obligations of the
Market Agent under the Trust Agreement under the terms and conditions herein
set forth.
Section 2. COMPENSATION. BLB shall receive no additional compensation for
the services it renders pursuant to the terms of this Agreement (other than
consideration it may have previously received or may receive as Liquidity
Provider under the Liquidity Agreement).
Section 3. LIMITATION OF LIABILITY OF THE MARKET AGENT. The Market Agent
will not be liable in contract, tort or otherwise to the Trust, any Holder, any
Remarketing Agent or any
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other person for any losses, costs or damages arising out of the Market Agent's
performance of its obligations and duties hereunder except for willful
misconduct, bad faith or gross negligence in the performance of its duties, or
by reason of reckless disregard of its obligations and duties hereunder.
Section 4. TERM OF THIS AGREEMENT. This Agreement, which shall be a binding
agreement as of the date hereof, shall terminate upon the earliest to occur of
(a) the termination of the Trust Agreement, (b) the termination of the Liquidity
Agreement, (c) the removal of the Market Agent by the Trustee in accordance with
the Trust Agreement, which shall only be upon prior written notice by the
Trustee given not less than 364 days prior to the effective date of the removal
or (d) 30 days after written notice of BLB's or any permitted assignee's
resignation as Market Agent is delivered to the Trustee.
Section 5. AMENDMENTS. No amendment or waiver of any provision of this
Agreement nor consent to any departure herefrom by any party hereto shall in any
event be effective unless the same shall be in writing and signed by the party
against which enforcement of such amendment or waiver or consent is sought, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
Section 6. NOTICE ADDRESSES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be deemed to
have been duly given if sent by facsimile transmission (a) if to the Market
Agent, to the number set forth below and (b) if to the Trustee, as set forth in
the Trust Agreement:
If to BLB: Bayerische Landesbank Girozentrale,
New York Branch
560 Lexington Avenue
New York, New York 10022
Attention: Structured Finance
Facsimile: (212) 310-9870
Section 7. ASSIGNMENT. Except as provided in this Section 7, this Agreement
may not be assigned by the Market Agent without the prior written consent of the
Trustee in accordance with the Trust Agreement. The Market Agent shall have the
right to transfer and assign all of its rights, duties, obligations and
liabilities under this Agreement to an affiliate of the Market Agent; PROVIDED,
HOWEVER, that such transfer and assignment shall be upon the condition that the
due and punctual performance and observance of all the terms and conditions of
this Agreement to be performed by the Market Agent shall, by an agreement
supplemental hereto, be assumed by such affiliate just as fully and effectually
as if such affiliate had been the original party of the first part to this
Agreement.
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Section 8. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed in such state (without reference to choice
of law doctrine).
Section 9. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between BLB and the Trust and supersedes any and all prior
agreements and understandings between BLB and the Trust relating to the subject
matter hereof.
Section 10. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 11. NO PETITION COVENANT. Notwithstanding any prior termination of
this Agreement, BLB shall not, prior to the date which is one year and one day
after the termination of this Agreement, acquiesce, petition or otherwise invoke
or cause the Trust to invoke the process of any court or governmental authority
for the purpose of commencing or sustaining a case against the Trust under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or any substantial part of its property, or making a general
assignment for the benefit of creditors, or ordering the winding up or
liquidation of the affairs of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Market Agent
Agreement to be duly executed as of the day and year first above written.
BAYERISCHE LANDESBANK GIROZENTRALE,
ACTING THROUGH ITS NEW YORK BRANCH
By: /s/ Bert von Stuelpnagel
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Bert von Stuelpnagel
Executive Vice President
and Manager
By: /s/ Ron Bertolini
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Ron Bertolini
First Vice President and
Treasury Manager
BRAVO TRUST SERIES 1997-1
By: The Bank of New York, not in its
individual capacity but solely as Trustee
under the Trust Agreement
By: /s/ Cheryl L. Laser
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Name: Cheryl L. Laser
Title: Assistant Vice President